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.] [Distributed for conference of January 9, 2026].
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.
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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.
posted by John L. Welch @ 12/09/2025
4 comments
4 Comments:
I might suggest that hoping that THIS Supreme Court "clarifies" anything, especially as concerns IP law, perhaps reflects an unwarranted degree of optimism. Or, posed alternatively, is it realistic to think a body working feverishly to break everything will do a good job if it puts down the sledgehammer and axe for a minute and tries to fix something?
What if 1% of the population speaks Klingon?
What is there for the Supreme Court to "clarify?" French is the 3rd most spoken language in the U.S. and is the official language of our neighboring country to the north. If you want the Court to say French isn't widely spoken enough to qualify under foreign equivalents, you aren't hoping for clarification, you're hoping for nulification.
I’m not sure who drew up the quoted paragraph in the reply brief but it seems quite misleading. First of all, the decision of the Court of Appeals is not one that “overcomes” an Act of Congress. That is a ridiculous statement. The Court is not “overcoming” the Act, but rather interpreting or construing the Act’s provisions of mere descriptiveness (and genericness). Also, I never heard of the bars to registration being called “an exclusion.” Plus, there is more than one “exclusion.” Like the name of an individual without his consent, false suggestion of a connection, deceptiveness, flag, coat of arms, likelihood of confusion, geographic descriptiveness, surname, etc. Also, not all of those “exclusions” turn on what their perception is to consumers as stated (name of individual, flag, coat of arms, etc.). I think the statement of the issue presented should be less slanted so that the Court will be more likely to take up the issue. A slanted presentation of the issue does not help.
Anyway, let’s get rid of the “stop to think” reasoning. If it’s a descriptive/generic term in a well-known language for those goods or services, it shouldn’t be registered. Yes, maybe only 1 per cent of the people speak French, but a lot more know common words through high school French or otherwise. Why should a word like “chemise” (shirt) be registered for shirts in the US regardless of whether only 1 percent speak it. Do we want the European Union countries to register “sparkling wine” and have their customs block importation of our wine. “Stop and think” is such an amorphous and subjective concept anyway. If there are other foreign terms that are not so straight-forward or have more than one meaning, then rely on what the evidence of their primary meaning would be to prospective purchasers.
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