USPTO Publishes November 2025 Revision of the Trademark Manual of Examining Procedure

The USPTO has published a November 2025 revision of the Trademark Manual of Examining Procedure (TMEP), here. It has also provided a summary of several of the "highlights" [here].

The longest section in the summary of highlights concerns the doctrine of foreign equivalents, a revision triggered by the CAFC's decision in the VETEMENTS case [TTABlogged here], currently under consideration by the Supreme Court in connection with the applicant's petition for a writ of certiorari. That section includes this passage:

The burden is on the party opposing translation to show that it is unlikely the ordinary American purchaser would stop and translate the wording into its English equivalent. Vetements at 1331. As to this inquiry, the “ordinary American purchaser” encompasses “all American purchasers, including those proficient in a non-English language who would ordinarily be expected to translate words into English.” Id. at 1324 (quoting In re Spirits Int’l, N.V., 563 F.3d at 1352).

Factors to consider in determining whether the ordinary American purchaser will stop and translate non-English wording include whether: (1) the relevant English translation is literal and direct; (2) the non-English wording is from a common, modern language such that an appreciable number of Americans are capable of translating the wording; and (3) whether the context in which the wording appears, such as the specific goods, services, or marketplace circumstances, would cause an ordinary American purchaser with ordinary sensibilities to translate the wording or instead to take the wording at face value and not translate.

The revisions also include this caveat derived from the PRINCETON EQUITY GROUP case [TTABlogged here]: "[I]f an applicant's brief attempts to incorporate by reference an argument made during prosecution, such argument may be deemed to have been forfeited. In re Princeton Equity Grp. LLC, Ser. No. 97397212, 2025 TTAB LEXIS 242, at *9 (2025).

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TTABlogger comment: As stated in the Forward to the TMEP: "The guidelines set forth in this Manual do not have the force and effect of law."

Text Copyright John L. Welch 2025.