Agathe Duriez
A recently filed petition for certiorari highlights the challenges posed by the expansion of international trade to U.S. trademark law. The petition followed the Federal Circuit’s affirmation of the U.S. Patent and Trademark Office’s (USPTO) refusal to register the fashion brand Vetements on the ground that “vêtement,” meaning “clothing” in French, is too generic.1 The growing interconnectedness of global markets and the resulting multilingual consumer base in the United States raise important questions about whether the U.S. approach to trademarks should be reconsidered.2
The doctrine of “foreign equivalents” is a judicially created doctrine by the predecessor of the Federal Circuit, which interprets the Lanham Act as requiring courts and the USPTO to translate foreign words from common languages into English to determine whether a mark can be registered.3 It prevents putative trademark registrants from obtaining protection over foreign language marks that, when translated to English, are merely generic or descriptive.
This doctrine was intended to serve the quintessential aim of the Lanham Act—to protect consumer perception—by determining whether the mark is one “by which the goods of the applicant may be distinguished from the goods of others.”4 Yet this case suggests the doctrine may be ill-suited to that purpose. Vetements’ lawyers argue that American consumers would not confuse the label with just any piece of clothing. Consequently, the petition argues that the test for genericness should be “controlled by consumer perception of the mark taken at face value” rather than by its English translation.5 Such an approach would align trademark doctrine with the Supreme Court’s decision in Menendez v. Holt, 128 U.S. 514, 520 (1888), which upheld registration of the non-English mark “La Favorita” in part because it was “a fancy name, and in a foreign language.”
Although French and other foreign languages are increasingly spoken in American households, Vetements’ lawyers contend that the doctrine of foreign equivalents misconstrues the issue.6 It seems to underestimate the American consumer’s ability to grasp the artistic concept behind unbranded and minimalist aesthetics, which are becoming increasingly mainstream, with the Japanese brand MUJI (literally “no brand quality goods”) serving as a textbook example.
Despite its shortcomings, some argue that the doctrine of foreign equivalents should remain good law because it can serve as an effective barrier to cultural appropriation.7 For example, it might have prevented a Chicago-based restaurant chain from trademarking the name “Aloha Poke,” thereby preserving Hawaiians’ ability to use terms that reflect their cultural heritage in business.8
A more balanced solution would be to treat the doctrine as a guideline rather than a rigid rule, as the Federal Circuit initially suggested in Palm Bay Imports, Inc. v. Veuve Clicquot Ponsardin Maison Fondee en 1772, 396 F.3d 1369, 1377 (Fed. Cir. 2005). Such an approach may provide the flexibility necessary to preserve the Lanham Act’s aims in a globalized economy.
[1] Brief for petitioner, Vetements Grp. AG v. Stewart (No. 25-215) (U.S. 2025), https://www.cafc.uscourts.gov/opinions-orders/23-2050.OPINION.5-21-2025_2518135.pdf.
[2] U.S. Census Bureau. "Language Spoken at Home" American Community Survey, ACS 1-Year Estimates Subject Tables, Table S1601, 2024, https://data.census.gov/table/ACSST1Y2024.S1601?q=S1601.
[3] In re N. Paper Mills, 64 F.2d 998 (C.C.P.A. 1933).
[4] Star Indus., Inc. v. Bacardi & Co., 412 F.3d 373, 383 (2d Cir. 2005) (explaining that “[to prevail in a trademark infringement action under the Lanham Act, a plaintiff must prove, in addition to protectability of the mark,] a probability of confusion, not a mere possibility [affecting] numerous ordinary prudent purchasers.”); Lanham Act 15 U.S.C. § 1052.
[5] See supra note 1.
[6] See supra note 2.
[7] Stephanie H. Soh, When All Else Fails: The Doctrine of Foreign Equivalents as a Bar to Cultural Misappropriation, 65 Wm. & Mary L. Rev. 977 (2024).
[8] Jacey Fortin, Chicago Chain Kept Hawaiian Restaurants From Using ‘Aloha Poke’ Name, N.Y. Times (Jul. 31, 2018) https://www.nytimes.com/2018/07/31/dining/aloha-poke-chicago-hawaii.html?smid=fb-nytimes&smtyp=cur.