by Dennis Crouch
Earlier in 2025, the Federal Circuit affirmed a TTAB’s refusal to register VETEMENTS (both standard-character and a block-letter stylization) for clothing and online retail store services for clothing. Pardon my French, but the problem here is that “vêtements” directly translates into “clothing” — rendering the word generic for goods and at least highly descriptive for clothing related services. In re Vetements Group AG, 137 F.4th 1317 (Fed. Cir. 2025). The case falls under the “Doctrine of Foreign Equivalents” (DFE) which the court was careful to characterize as a guideline rather than a firm rule. Here, the Federal Circuit applied the guideline and concluded that an “appreciable” number of American consumers would likely “stop and translate” the word and recognize it as generic to the goods in question.
Vetements has now filed a petition for certiorari asking the Court to decide, first, whether protectability of a non-English mark should turn on consumer perception of the mark as encountered (without translation) or on its English translation; and second, what the proper test is for genericness or descriptiveness of non-English marks. The petition frames the Federal Circuit’s approach as inconsistent with Menendez v. Holt, 128 U.S. 514 (1888), and the “bedrock” consumer-perception principle reiterated in USPTO v. Booking.com, 591 U.S. 549 (2020). The petition also highlights divergent approaches among the circuits and the TTAB. Vetements Grp. AG v. Stewart, No. 25-215 (U.S. Aug. 19, 2025) (petition for cert. filed).
What the TTAB did. Vetements applied in 2020 to register VETEMENTS for a list of apparel items (IC 25) and online retail store services for those items (IC 35). The examining attorney required a translation statement (“VETEMENTS” = “CLOTHING”) and refused registration on genericness or, in the alternative, descriptiveness without acquired distinctiveness. The TTAB affirmed across the board, noting also that the stylized block-letter display did not create a separate, registrable commercial impression.
The Federal Circuit’s DFE framework. On appeal, the panel began with the threshold doctrine of foreign equivalents inquiry about whether an “ordinary American purchaser” would “stop and translate” the generic foreign word. I’ll pause here to recognize that the “translate” portion of the test is a fiction – many Americans who would understand “VETEMENTS” as generic wouldn’t need to “translate” it at all, but would simply comprehend its meaning directly as native or fluent French speakers. The court’s framework treats direct comprehension and actual translation as functionally equivalent under the “stop and translate” rubric.
Here, the court identified three three principles supporting a stop-and-translate finding here:
- Words from modern languages are generally translated (or understood);
- An “appreciable number” of Americans capable of translation suffices (explicitly rejecting a “50% rule”); and
- Context matters, and consumers encountering VETEMENTS on clothing would translate it to “clothing.”
With translation in place, the Board’s finding that “clothing” names the genus of the goods followed rather directly under familiar genericness principles.
Where Menendez and Booking.com enter the story. Vetements argues in the petition that the Federal Circuit effectively displaced consumer perception of the encountered mark with a legal presumption of translation, contrary to Menendez and Booking.com.
In its 1888 Menendez decision the Supreme Court protected “La Favorita” (Spanish for “The Favorite”) as a trademark for flour, explicitly noting that it was “a fancy name, and in a foreign language.” The Court treated “La Favorita” as protectable precisely because it functioned as a fanciful designation to American consumers, rather than applying what we now call the DFE to automatically translate it to “The Favorite” and potentially render it descriptive. But, the Federal Circuit’s decision already distinguished Menendez because “La Favorita” did not literally name the goods themselves – it was a creative phrase meaning “The Favorite” that could apply to any product, not “harina” (the Spanish word for “flour”).
The petition also repeatedly invokes Booking.com‘s statement that whether or not a mark is generic “depends upon its meaning to consumers” rather than to some “unyielding legal rule.” The Court explicitly warned against categorical rules, stating that such rules are “incompatible with a bedrock principle of the Lanham Act” that trademark eligibility “depends on [the mark’s] meaning to consumers.” Vetements argues that the Federal Circuit’s DFE framework – although stated as a guideline – effectively creates an inflexible, translation-first approach that Booking.com condemned.
How the petition would reframe the test. On Vetements’ view, the proper inquiry asks whether U.S. consumers encountering the non-English mark itself would perceive it as the generic name or a mere descriptor; translation should be a piece of evidence only where the record shows most consumers would actually translate. Vetements emphasizes there is little record evidence that “VETEMENTS” functions as an English-vernacular term or sounds/looks like “clothing,” contending that, to most U.S. buyers, VETEMENTS appears fanciful. It also stresses that allowing registration would not remove “vêtements” from descriptive or generic use, given strong fair-use protections in the law.
Comment: At one level, I think the petition is right to emphasize that the doctrine of foreign equivalents should not be applied as a rigid, translation-first rule. Trademark law’s touchstone is consumer perception, and the proper inquiry asks what the American public actually understands when they encounter the mark. Will ordinary U.S. consumers be confused or misled? That remains the central question. Of course, some subset of consumers is always confused – you fool some people all of the time, as the saying goes – but the law does not require majority confusion. The Federal Circuit’s use of an “appreciable number” standard seems more appropriate, particularly in the context of nationwide federal registration. A mark should not obtain the benefits of federal exclusivity if large swaths of the population are likely to understand it in a generic or merely descriptive sense. State law and common law rights remain available to provide regional protection and market value, even without federal registration.
That said, I do have continuing concerns with the language of the “stop and translate” test itself. As the petition notes, and as the Federal Circuit’s opinion illustrates, the real issue is not whether consumers perform some internal act of translation, but rather whether they understand the word in a generic or descriptive sense. The “stop and translate” framing risks turning a flexible inquiry into an artificial presumption. At bottom, the case is (or at least should be) about public understanding of language in the marketplace – not linguistic gymnastics. But, I don’t see the Federal Circuit’s imperfect phrasing as requiring certiorari when the court is largely faithful to the consumer-perception principle, and the outcome here seems consistent with both doctrine and policy.