VETEMENTS AG Files Reply to USPTO's Certiorari Opposition: TTABlog Asks, What About the Perception of 99 Percent of American Purchasers as to Genericness?

Vetements AG has filed its Reply Brief [pdf here] on its petition for writ of certiorari in the VETEMENTS genericness case. In upholding the TTAB's decision affirming the genericness refusal, the CAFC ruled that Vetements AG had the burden to prove it unlikely that the ordinary American purchaser (including those familiar with the French language) would not stop and translate the French word "vetements" into the English word "clothing." [The petition for certiorari may be found here, and the USPTO's opposition here.]

Vetements AG points out that French is spoken by fewer than 1% of Americans, yet the Board and the CAFC found that 1% is enough, under the doctrine of foreign equivalents, to justify the finding that the mark VETEMENTS is generic for clothing. My question is, should the remaining 99% of American purchasers be ignored? In the likelihood-of-confusion context, if a survey showed that less than 1% - or even less than 15% - of consumers would be confused as to source with respect to a particular mark or marks, a Section 2(d) refusal (or an infringement claim) would not stand. Why is 1% enough when the issue is genericness?

Here is Vetement AG's introduction to the Reply Brief:

The categorical application by the court of appeals of a judicially generated concept to overcome an Act of Congress warrants this Court’s review. The Trademark Act provides that no trademark by which the goods of an applicant may be distinguished from those of others shall be refused registration unless an exclusion applies. It is therefore the burden of Respondent to establish the basis for refusal, which determination is to be predicated on the perception of the trademark by the American consuming public. Whether to attempt translation of a term is part of that burden, rather than first translating and then fitting the translation to the particular situation in order to arrive at an unwarranted conclusion that the consuming public would likely undertake such a translation. Further, this case presents an outcome-determinative circuit conflict that this Court should resolve.

The questions presented are recurring and important and the Court should grant the petition in order to clarify the statutory mandate for registration of a trademark.

Read comments and post your comment here.

TTABlogger comment: Let's hope that the Supreme Court takes up this case and clarifies the doctrine of foreign equivalents.

Text Copyright John L. Welch 2025.