Trademark Application for French “Clothing” Unravels at the Federal Circuit

The Court of Appeals for the Federal Circuit recently affirmed a denial by the U.S. Trademark Trial and Appeal Board (TTAB) of an application filed by fashion house Vetements Group AG for VETEMENTS for various articles of clothing and related online retail store services. In re Vetements Group AG, No. 2023-2050, 2023-2051 (Fed. Cir. May 21, 2025). There was no dispute by Vetements Group that vêtement is the French word for “clothing.” Relying on the “doctrine of foreign equivalents,” the TTAB held that VETEMENTS is generic (or merely descriptive without acquired distinctiveness). The Federal Circuit found that decision in accordance with law and supported by substantial evidence.

The doctrine of foreign equivalents is used to determine if a word from a modern non-obscure language is unregistrable by asking if the “ordinary American purchaser” would translate the mark. If so, the next step is to consider how the mark would be perceived in context. The court noted that the doctrine did not bar registration of VEUVE ROYALE (“royale widow” in French) for wine despite a prior registration for THE WIDOW, or TIA MARIA (“Aunt Mary” in Spanish) for restaurant services despite a prior mark for AUNT MARY for canned fruits and vegetables. However, the doctrine did bar registration of GASA (“gauze” in Spanish) for toilet paper, HA-LUSH-KA (the nearly identical “haluska” meaning “egg noodles” in Hungarian) for noodles, FIOCCO (referring to “fabrics made of rayon” in Italian) for fabrics, and MOSKOVSKAYA (referring to “from Moscow” in Russian) for vodka.

The “ordinary American purchaser” test has been part of the doctrine for at least 50 years and creating confusion often during that time. While the court repeated the oft expressed view that the doctrine of foreign equivalents is not an absolute rule and should be viewed merely as a guideline, it did set forth the following nonexclusive list of core principles for analyzing a foreign word mark:

1. The burden is on the party opposing translation to show that it is unlikely that the ordinary American purchaser would stop and translate the word into its English equivalent, taking into account the “well-recognized tenet” that words from modern languages are generally translated into English.
2. Consider the capability of an “appreciable number” of the relevant consuming U.S. population to translate the word.
3. Consider whether, in context, the mark would ordinarily be translated by a purchaser with “ordinary sensibilities” taken from the U.S. population as a whole. This principle does not depend on linguistic capability (which is considered under the second principle) but, rather, asks if a purchaser with assumed linguistic ability and ordinary sensibilities would translate the word given the context in which it is used. This principle reflects the idea that even a native speaker would not perform a literal translation because it would be irrelevant in the context of the specific goods, services, or market.

The court’s articulation of the third principle is a bit confusing, as it refers to a “purchaser taken from the U.S. population as a whole” but in the next breath assumes linguistic ability. Moreover, the court introduces the term “ordinary sensibilities” (even italicizing the term twice) without any discussion of its meaning. The key issue of whether the mark is registrable seems unrelated to “sensibilities” (ordinary or not), but rather simply to whether the ordinary purchaser familiar with the language would translate the mark considering its context.

Vetements Group AG argued that the “ordinary American purchaser” test required that a majority of American purchasers would translate VETEMENTS as “clothing.” It also argued that only a minute fraction of Americans speak French, and therefore there was only a de minimis chance that the ordinary purchaser would either recognize the French word and know its English equivalent or “stop to hunt down the translation.”

The court rejected the argument that a majority of American purchasers must be able to translate the foreign word to invoke the doctrine of foreign equivalents, instead holding (consistent with precedent) that an “appreciable number” would suffice. As substantial evidence that an appreciable number of the U.S. population would stop and translate VETEMENTS, the TTAB noted that (as of 2010) French was the fourth most common language spoken in the United States, was spoken at home by 2.1 million Americans over the age of five, was taught to 14% of all students enrolled in foreign languages in elementary grades through high school, and was taught to 12.4% of all American university foreign language students.

The court also noted that not every word is known to a speaker of a particular language, and the less common the word (especially to casual speakers of the language) the less likely it is to be translated. Here, the court found that VETEMENTS was a simple and common French word — unlike VEUVE (“widow”), requires a more advanced vocabulary. The court observed that even if the ordinary American purchaser were defined as a proficient speaker of the foreign language in question, that did not necessarily mean that every foreign word would automatically be translated in context.

As for context, the court considered whether the ordinary American purchaser (familiar with French) would take VETEMENTS at “face value” (i.e. untranslated) or would stop and translate the word. Vetements Group AG argued that such a person would not translate VETEMENTS because it was displayed as a trademark and was the same name as the applicant. The court upheld the TTAB on this issue as well, as the direct translation of “vetements” is “clothing,” which “bears a direct relationship to the goods and services” for which registration was sought. There was no evidence of any marketplace situation that would make it unfeasible or unlikely that purchasers would translate the word.

Takeaways

Registering foreign wording as a trademark typically involves a consideration of the translated wording. Hoping that the “market context” provides an argument that a person of “ordinary sensibilities” familiar with the language would not consider the English equivalent to be relevant is a risk that is difficult to gauge. As the VETEMENTS case shows, the more direct the translation is for the goods at issue, the more likely it is that a refusal based on genericness will stick.