CAFC Affirms TTAB's VETEMENTS Genericness Ruling

Holding that a party opposing translation of a term under the doctrine of foreign equivalents has the burden to show that it is unlikely that the ordinary American purchaser would stop and translate the word into its English equivalent, the CAFC upheld the Board's affirmance [TTABlogged here] of the USPTO's refusals to register the term VETEMENTS (in standard character and slightly stylized form) for various clothing items and for related retail store services, on the ground of genericness. There was no dispute that the English translation of the French word "vetements" is "clothing," and the court ruled that substantial evidence supported the Board's finding that the ordinary American purchaser would stop and translate the mark. In re Vetements Group AG, 2025 USPQ2d 775 (Fed. Cir. 2025) [precedential].

Whether the Board applied the proper test for genericness is a question of law, reviewed de novo, but whether a particular mark is generic is a question of fact reviewed for substantial evidence. In re PT Medisafe Techs., 134 F.4th 1368, 1373 (Fed. Cir. 2025) (quoting Cordua, 823 F.3d at 599).

The CAFC recounted the history of the doctrine of foreign equivalents as applied in various contexts. In Palm Bay, it considered an appeal from a likelihood-of-confusion refusal of the non-English mark VEUVE ROYALE for sparkling wine, holding that “[t]he doctrine should be applied only when it is likely that the ordinary American purchaser would 'stop and translate [the word] into its English equivalent.'" (alteration in original) (citation omitted). In Spirits the court observed that "[t]he 'ordinary American purchaser' is not limited to only those consumers unfamiliar with non-English languages; rather, the term includes all American purchasers, including those proficient in a non-English language who would ordinarily be expected to translate words into English.” 563 F.3d at 1352.

Appellant relied on Palm Bay in arguing against translation, but the CAFC pointed out that Palm Bay "involved two circumstances that weighed against translation." First, "an 'appreciable' number of Americans are capable of translating the term VETEMENTS from French into English."

[T]he word in question is a simple and common word—the word for clothing. On the other hand, “widow” requires a more advanced vocabulary. This, therefore, distinguishes this case from the aspect of Palm Bay that was premised on “an appreciable number of purchasers [being] unlikely to be aware that VEUVE means ‘widow’” in French, and therefore “unlikely to translate the marks into English.” Palm Bay, 396 F.3d at 1377 (emphasis omitted) (citation omitted)."

Second, the word "vetements" is closely associated with clothing because it is the French word for clothing. whereas the term "veuve" has no association with the goods in Palm Bay. 

Appellant disputed the Board’s finding that the ordinary American purchaser would stop and translate the marks because there was no showing that a majority of Americans are capable of translating the word. 

We reject Appellant’s proposed test, which is tantamount to the threshold ordinary American purchaser under the doctrine of foreign equivalents requiring a headcount to determine the foreign language skills of the median American purchaser in every case. *** It is enough to demonstrate that an “appreciable” number of Americans are capable of translating the term VETEMENTS from French into English.

The CAFC deemed it "prudent to further distill the core principles relevant to analyzing the 'threshold limitation on the application of the doctrine of foreign equivalents' of whether the ordinary American purchaser would stop and translate the mark into English. Spirits, 563 F.3d at 1351–52 (quoting Palm Bay, 396 F.3d at 1377). The guiding principles we identify here are non-exclusive and do not preclude the application of other principles where demanded by the particular circumstances of future cases."

• First, the party opposing translation has the burden to show that it is unlikely the ordinary American purchaser would stop and translate the word into its English equivalent.
• Second, "as long as an appreciable number of Americans, from the U.S. population as a whole, are capable of translating the word, the word likely will be translated. the word likely will be translated." 
• Third, whether the mark would ordinarily be translated by a purchaser (from the U.S. population as a whole) with ordinary sensibilities must be considered. 

The court concluded that the appellant did not meet its burden to show that the marks are unlikely to be translated; therefore, the doctrine of foreign equivalents applies. Ruling that substantial evidence supported the Board’s finding that, as translated to “clothing,” the term VETEMENTS is generic for the involved goods and services, the CAFC affirmed the Board's decision.

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TTABlogger comment:  What evidence will show that a term is not likely to be translated into English? Does one need a survey to show that "an appreciable number of purchasers [are] unlikely to be aware" of the meaning of the foreign word, as in Palm Bay?

Text Copyright John L. Welch 2025.