[00:00:00] Speaker 00:
All right, first cap, down to business.

[00:00:02] Speaker 00:
First case for argument is 23-2050, Inrey Vetman, group AG.

[00:00:12] Speaker 00:
Mr. Lin, whenever you're ready.

[00:00:15] Speaker 02:
Thank you, Your Honor.

[00:00:16] Speaker 02:
Terrence Lin for Betterment's Group.

[00:00:19] Speaker 02:
This case is fundamentally about the doctor of foreign equivalence.

[00:00:22] Speaker 02:
The standard is set forth by this burdened Pompeii and others such as Henry Spirits as whether an ordinary American professor is likely to stop and translate the marking question.

[00:00:33] Speaker 02:
If the likely to translate test is only applied to those... Excusez-moi, j'ai une question.

[00:00:40] Speaker 02:
You know, I wish I'd spoken.

[00:00:42] Speaker 02:
I'd probably have more insight.

[00:00:44] Speaker 04:
So on page 20 of Vietman's opening brief, Vietman argues that French is spoken in the United States by significantly less than 1% of the population.

[00:00:57] Speaker 04:
And quote, that this establishes there is only a low probability that an ordinary American purchaser ellipsis would stop and translate Vietman into English.

[00:01:09] Speaker 04:
And the PTO doesn't dispute the record citations.

[00:01:15] Speaker 04:
But in the same evidence that Vicmo cites, it also indicates that approximately 2.1 million Americans speak French at home, I suspect principally in Louisiana and in Maine.

[00:01:32] Speaker 04:
But that makes it the third, fourth, or fifth most widely spoken foreign language at home.

[00:01:43] Speaker 04:
And French is the second most widely taught foreign language in the schools in the United States.

[00:01:48] Speaker 04:
And I know from experience, starting in the second grade, that the very first thing they teach little kids is the parts of their body.

[00:01:57] Speaker 04:
And then they teach them what they put on their body.

[00:02:05] Speaker 04:
And they group that under vétements.

[00:02:10] Speaker 04:
So in the second week or third week,

[00:02:13] Speaker 04:
of the very first classes French students are getting, that word is there.

[00:02:19] Speaker 04:
And that has to impact how many people are familiar with that word.

[00:02:25] Speaker 04:
So your restriction to 2.1 million native French speakers is outside the box, as far as I'm concerned.

[00:02:34] Speaker 02:
Well, there's two aspects to it.

[00:02:36] Speaker 02:
You've got the raw statistical number or raw number.

[00:02:40] Speaker 02:
And if you're going to look at less than half of a percent of the American public, does that make it likely that the American public, the ordinary purchaser, is going to translate?

[00:02:55] Speaker 02:
Yes, there is this small subset.

[00:02:58] Speaker 02:
You don't disagree that French is a modern thing.

[00:03:03] Speaker 04:
Will those people know that word?

[00:03:08] Speaker 02:
If the second most taught foreign language involved one person, is that enough?

[00:03:14] Speaker 00:
We have this doctrine that we've long applied, including our predecessor court.

[00:03:21] Speaker 00:
French is number two on the list.

[00:03:23] Speaker 00:
Spanish, I presume, is number one.

[00:03:26] Speaker 00:
So are we going to limit the application of this doctrine that we've adopted, not as a firm rule, but at least as kind of a background principle to just one language?

[00:03:36] Speaker 00:
I mean, I don't even know if Spanish in your outline would satisfy the test.

[00:03:42] Speaker 00:
But if that doesn't satisfy it, then there's nothing to this foreign language doctrine, right?

[00:03:47] Speaker 00:
It's empty.

[00:03:48] Speaker 02:
Well, you can't disregard the low percentage, but you then have to look at the other factors to take that minor percentage into account.

[00:04:00] Speaker 02:
And specifically, the market players.

[00:04:02] Speaker 04:
Where's the authority for that?

[00:04:04] Speaker 02:
Well, Tia Maria was the context.

[00:04:09] Speaker 02:
He's still in my hair, right?

[00:04:11] Speaker 02:
It's the context of the marketplace that causes, as laid out in Pompeii and in Ray Spirits,

[00:04:18] Speaker 02:
that there's certain words that even if you are a French speaker, it won't be translated or it's not going to be translated.

[00:04:26] Speaker 03:
That's a different question though.

[00:04:28] Speaker 03:
That's more of a context dependent inquiry.

[00:04:31] Speaker 03:
The first threshold question is, is this a modern common language that we can then think about the foreign equivalence doctrine and translate that word into English?

[00:04:46] Speaker 03:
We have this unbroken line of precedent going all the way back to 1933, April Mills, where if it's a modern common language and you're trying to use as a US trademark the foreign equivalent word that's generic or descriptive for the goods and services, you don't get to have that mark.

[00:05:08] Speaker 03:
You don't get to lock up that mark and block competitors from using that foreign word.

[00:05:13] Speaker 03:
That's nothing more than a generic or descriptive understanding of goods and services.

[00:05:19] Speaker 03:
So yes, there are exceptions.

[00:05:21] Speaker 03:
But the default rule has always been that there is this ordinary American consumer.

[00:05:28] Speaker 03:
But ordinary American consumers include people that speak this modern common foreign language.

[00:05:35] Speaker 03:
And then you look at it through that person's eyes as to whether or not they would see that this is, in fact, just

[00:05:43] Speaker 03:
a foreign version of a generic understanding of the goods.

[00:05:48] Speaker 03:
So I don't understand why we need to worry about calculating what percentage of the overall American population actually speaks and knows French.

[00:06:00] Speaker 03:
That's never been the way we've funneled the inquiry, nor is it the way any other circuit court does it, nor does McCarthy suggest that you have to do that.

[00:06:10] Speaker 03:
So I guess what I'm trying to figure out is why

[00:06:13] Speaker 03:
Are we trying to do this kind of inspection of the overall population like you want?

[00:06:21] Speaker 02:
Because the courts have used that as part of the factors or a touchstone when doing an assessment as to whether it's going to be

[00:06:35] Speaker 02:
Yes, whether it's a modern common language, but also whether the ordinary American purchaser would be likely to do the translation.

[00:06:44] Speaker 03:
They do look at that and that is in fact what the board... Well, none of our CCPA cases have been overruled, right?

[00:06:54] Speaker 02:
I don't believe so.

[00:06:55] Speaker 02:
I'm not aware of that.

[00:06:57] Speaker 03:
So those CCPA cases, they pretty much just do the translation.

[00:07:02] Speaker 03:
whether it was Hungarian or some other foreign language, and then determine whether the now translated Hungarian word was merely generic or descriptive of the goods and services.

[00:07:14] Speaker 02:
Oh, but your court has done far more than that.

[00:07:18] Speaker 02:
It takes a look at it through the lens of not just and focusing solely on the foreign language speaker, which would exclude 99.5% of the population.

[00:07:30] Speaker 02:
But it looks at it.

[00:07:31] Speaker 03:
Are you talking about in race spirits?

[00:07:33] Speaker 03:
Which case are you talking about?

[00:07:35] Speaker 03:
When you said this court's case law has done much more than that.

[00:07:40] Speaker 02:
Well.

[00:07:41] Speaker 02:
Pombay talks about in the context, well, there are certain terms that even a French speaker, forget the percentages, just would accept and use.

[00:07:56] Speaker 00:
There's a number of cases where... Pombay is a really quite a different case, though.

[00:08:02] Speaker 00:
There was no descriptive or generic thing.

[00:08:05] Speaker 00:
This was widows.

[00:08:06] Speaker 00:
It wasn't descriptive of the product of all.

[00:08:09] Speaker 00:
So it was

[00:08:11] Speaker 00:
I know there's language in Palm Bay that you could argue supports your position, but it was a different, completely different kind of analysis.

[00:08:19] Speaker 00:
But go ahead.

[00:08:20] Speaker 02:
OK.

[00:08:20] Speaker 02:
And fair point.

[00:08:23] Speaker 02:
That was a likelihood of confusion case as opposed to the descriptiveness.

[00:08:27] Speaker 02:
But this court has applied the test even handily across both those types of backdrops.

[00:08:33] Speaker 04:
Besides which, I can testify personally that Veuve Clicquot

[00:08:38] Speaker 04:
Champagne has a picture of the widow on every single bottle cup.

[00:08:44] Speaker 02:
Far more knowledgeable about that champagne than I. But I'll take your word for it.

[00:08:48] Speaker 02:
That said, the court's precedent

[00:08:54] Speaker 02:
looks at the third-party context of the marketplace.

[00:08:59] Speaker 02:
What do the third parties do in marketing and purchasing of products?

[00:09:05] Speaker 02:
You talk about Halushka, the Henry Weiss case.

[00:09:11] Speaker 02:
In that case,

[00:09:12] Speaker 02:
The record reflected that third parties, in fact, used halushka, the foreign language word, in marketing their products in the United States.

[00:09:22] Speaker 02:
When you talk about the Cordua, that was one where they didn't apply the foreign language doctrine, but that established that the

[00:09:36] Speaker 02:
third parties again used this charuska as a type or form of restaurant.

[00:09:46] Speaker 02:
Not the translated word, but the foreign language word.

[00:09:51] Speaker 02:
And in this backdrop, here there is no third party use of vitamins in marketing their products.

[00:10:01] Speaker 02:
I mean, to the extent that

[00:10:02] Speaker 03:
This is used... FEMON in French means clothing, right?

[00:10:07] Speaker 02:
The translated meaning is that, yes.

[00:10:09] Speaker 03:
And the goods and services here are clothing.

[00:10:13] Speaker 02:
They're clothing items or garments of various types.

[00:10:16] Speaker 02:
Okay.

[00:10:20] Speaker 02:
In terms of the marketplace analysis, when would that term be translated or not translated, even by a French person?

[00:10:29] Speaker 03:
What about queso?

[00:10:31] Speaker 03:
Did someone

[00:10:31] Speaker 03:
try to get a registration for queso for cheese and cheese products?

[00:10:36] Speaker 02:
No, because the third party use uses the word queso, the foreign language word.

[00:10:42] Speaker 03:
We have to look at something called third party use to ask ourselves whether queso is generic for cheese?

[00:10:50] Speaker 02:
To know whether it's the translation of cheese, yeah, that's fine.

[00:10:56] Speaker 02:
But to determine whether it is generic in the American public,

[00:11:01] Speaker 02:
you should be looking at whether the American public or the marketplace uses that term to refer to that category of product.

[00:11:11] Speaker 02:
And it does.

[00:11:12] Speaker 02:
I mean, if you go into a coffee shop, you're going to say, give me a latte.

[00:11:16] Speaker 02:
And that's a foreign language word that people just use.

[00:11:21] Speaker 02:
Here, the term vetamins, whether it's on a hang tag that's hanging on a shirt or in the insole of a shoe, people don't look at it and say, jeez, I wonder what this is.

[00:11:34] Speaker 02:
They aren't using that word to try to tell them something.

[00:11:37] Speaker 02:
They're not trying to learn something about the product.

[00:11:40] Speaker 02:
And therefore, they translate it as part of the

[00:11:47] Speaker 02:
evidence reflected displays at department stores, whatever, with a vetamins carpet, with racks of garments and vetamins on the side and vetamins on the floor and hang tags.

[00:12:01] Speaker 02:
And for a person to walk in and say, wait a minute, this is where the clothing is sold.

[00:12:07] Speaker 02:
Forget the rest of the store.

[00:12:09] Speaker 02:
People aren't looking at that and saying, oh, thank goodness, I found the clothing.

[00:12:13] Speaker 02:
No, they're seeing that.

[00:12:14] Speaker 04:
What evidence do you have of that?

[00:12:18] Speaker 02:
The use that I'm talking about is at the appendix 170 to 173.

[00:12:23] Speaker 02:
In terms of my expression of what this is what they would think, that's supposition.

[00:12:28] Speaker 02:
Yeah, it is.

[00:12:30] Speaker 01:
You're into your rebuttal.

[00:12:31] Speaker 01:
Do you want to hear from the government?

[00:12:33] Speaker 01:
Yes.

[00:12:33] Speaker 01:
If you want to use it and make another point, that's fine.

[00:12:37] Speaker 02:
I think the two points are it's fundamental that third parties do not use that term.

[00:12:44] Speaker 02:
The only evidence is a single third party registration that's now expired, where vitamins was not displayed.

[00:12:53] Speaker 02:
Everything else is talking about, well, the efforts of our client to make that or establish that brand.

[00:13:00] Speaker 02:
Thank you, sir.

[00:13:25] Speaker 00:
Good morning.

[00:13:25] Speaker 00:
Please proceed.

[00:13:27] Speaker 05:
Good morning, Your Honors.

[00:13:28] Speaker 05:
May it please the Court.

[00:13:31] Speaker 05:
Vetements is the French word for clothing, and appellants, goods, and services are clothing and online retail store services.

[00:13:39] Speaker 05:
There's no question that vetements is the direct and literal translation of the word clothing, and that clothing is generic for clothing in online retail stores featuring clothing.

[00:13:49] Speaker 05:
And as Your Honors pointed out, it is a foundational principle, going back to 1933 with Northern paper mills and 1960 with voice noodle, that the foreign equivalent of a generic or descriptive English word is no more registrable than the English word itself.

[00:14:06] Speaker 03:
Do we just immediately, blindly, rigidly go look at the foreign dictionary?

[00:14:14] Speaker 03:
Or is there some other analysis that has to take this first?

[00:14:18] Speaker 03:
For example,

[00:14:20] Speaker 03:
I don't know, is it a super obscure foreign language or maybe something about the context of the desired usage of the mark where we have to ask ourselves, would someone even think about stopping and translating the word before making some assessment as to genericness and descriptiveness?

[00:14:45] Speaker 05:
No, Your Honor, it is not just immediately going to the translation.

[00:14:48] Speaker 05:
As you pointed out earlier,

[00:14:50] Speaker 05:
threshold is, is this a common modern language?

[00:14:54] Speaker 05:
And that is what the board did here.

[00:14:56] Speaker 05:
They looked at the record, and they determined that French is a common modern language.

[00:15:00] Speaker 05:
And with that finding, they then looked at, is French, in French, vêtement means clothing.

[00:15:06] Speaker 05:
Is that the direct and literal translation of clothing, such that the ordinary American purchaser, the purchaser who is knowledgeable or proficient in French, would see vêtement on clothing and think,

[00:15:19] Speaker 05:
clothing, they would stop and translate.

[00:15:21] Speaker 05:
And that's what the board did here.

[00:15:22] Speaker 05:
And the board properly applied the doctrine of Ford equivalence to find that Vettement is generic.

[00:15:27] Speaker 03:
What if it's true that 0.5% of the American public knows French?

[00:15:37] Speaker 03:
Who are we really protecting then under those circumstances?

[00:15:42] Speaker 03:
Is it so de minimis perhaps that

[00:15:47] Speaker 03:
We shouldn't even worry about this, because we're trying to understand this question of genericness and descriptiveness through the lens of the ordinary American purchaser.

[00:16:00] Speaker 03:
And then under these circumstances, if it's true that only 0.5% of the American public knows this language, then maybe from the ordinary American purchaser's vantage point, why

[00:16:16] Speaker 03:
they wouldn't ever consider translating this, because they don't know the language.

[00:16:24] Speaker 05:
Your Honor, there's a lot to unpack in that.

[00:16:25] Speaker 05:
So I'll start with, if it's 0.5% of the population that speaks French, yes, we still care.

[00:16:33] Speaker 05:
Because when we're talking about a genericness and a descriptiveness inquiry, as you pointed out, we're concerned about what the significance of that word is.

[00:16:41] Speaker 05:
And if we go back to Haluška, which, sorry,

[00:16:44] Speaker 05:
Weissnudl, which discussed the word halusia, which is Hungarian, the court did not say, oh, we are concerned about how many people.

[00:16:53] Speaker 05:
It just said that the generic word, whether in English or a foreign language, is not registrable.

[00:17:00] Speaker 05:
And so we're here to protect the public and to make sure that generic words are not

[00:17:08] Speaker 05:
taken out of the public domain to make sure that no one is granted an exclusive right to use words that everyone is entitled to.

[00:17:16] Speaker 05:
And so when we're talking about percentage, we still look through that lens, through that lens of however many people are knowledgeable in French, and ask, is Vetements the direct and literal translation to clothing?

[00:17:30] Speaker 05:
It is.

[00:17:30] Speaker 05:
Those consumers, through their eyes, that's what we're worried about.

[00:17:34] Speaker 05:
We're worried about, will they look at Vetements on clothing and think,

[00:17:37] Speaker 05:
I'm just seeing the word clothing on clothing.

[00:17:39] Speaker 05:
And that's what the record here demonstrates.

[00:17:41] Speaker 05:
And that's what the board found, that VETMAW is generic for clothing and online retail store services featuring clothing.

[00:17:49] Speaker 03:
So back to the ordinary American consumer standard, what's the right way to articulate that?

[00:18:00] Speaker 03:
Is it the ordinary American public consumer

[00:18:06] Speaker 03:
includes people that speak French, and then we immediately run to see, because French is a common language, whether those, that subset of American purchasers, the ones that speak French, would understand this term to be generic or descriptive?

[00:18:26] Speaker 05:
Yes, Your Honor.

[00:18:30] Speaker 03:
But we don't do that for 2E3.

[00:18:33] Speaker 05:
No, Your Honor, and that's because when we're talking about the primarily geographically deceptively misdescriptive issue, there is a question of whether a significant portion of the population would be deceived.

[00:18:47] Speaker 05:
And if that deception hinges on whether the consumer understands what that foreign term means, then you're looking at a percentage.

[00:18:54] Speaker 05:
That's when this court has said that a proportionality test is appropriate.

[00:18:59] Speaker 05:
In spirit, and in footnote five, the court actually noted that that analysis is distinct from how the doctrine of foreign equivalence is presented in cases like Weiss Noodle, in cases like Northern Paper Mills, the situation where we have here.

[00:19:15] Speaker 03:
Judge Prost earlier asked a question that might have suggested whether we should think about 2D likelihood of confusion cases, perhaps differently from questions like genericness or descriptiveness.

[00:19:35] Speaker 03:
And perhaps in the confusion context, maybe we need to

[00:19:42] Speaker 03:
think a little harder before we immediately do a translation?

[00:19:46] Speaker 03:
Because, you know, Pompeii was the case where this court concluded that a consumer, even one that knew the language, wouldn't stop and translate that particular foreign word into English.

[00:20:01] Speaker 03:
And so do you see any daylight in terms of how we do the inquiry between 2D and genericness and descriptiveness?

[00:20:11] Speaker 05:
Yes, Your Honor.

[00:20:12] Speaker 05:
I agree with Judge Prost in that Palm Bay was a different inquiry.

[00:20:17] Speaker 05:
When we're talking about the doctrine of foreign equivalence and whether a consumer is likely to translate in that likelihood of confusion analysis, we're asking whether they are likely to translate and then compare it to another term.

[00:20:29] Speaker 05:
And as this court pointed out, there are circumstances in which a consumer

[00:20:35] Speaker 05:
in that context of looking at this mark and then being asked to compare it to another might not stop and translate.

[00:20:42] Speaker 05:
And I think we've pointed out some cases, for example, Tia Maria before the board where they were comparing Tia Maria as used for Mexican restaurant services versus Aunt Mary's for canned goods.

[00:20:55] Speaker 03:
Okay, we have a different test for 2E3.

[00:20:57] Speaker 03:
I know that.

[00:20:59] Speaker 03:
Does the P-tier want a different test between 2D confusion and genericness and descriptiveness?

[00:21:09] Speaker 03:
Or do you want the same test?

[00:21:14] Speaker 05:
The test that we have now, I can't say whether it's a different test or it's, but what we have is very clear precedent that we follow, that says,

[00:21:28] Speaker 05:
the foreign language term that is the direct equivalent of a generic English term is not registrable.

[00:21:34] Speaker 05:
And if that's what this court writes for a 2E1 descriptiveness or a genericness refusal, then that, we believe, would be consistent with the precedent and is something that the USPTO would be applying and is already applying.

[00:21:46] Speaker 00:
It's not an absolutely rigid rule.

[00:21:49] Speaker 00:
I mean, our precedent has been clear that that's the sort of standard, but we can deviate from that under appropriate circumstances.

[00:21:57] Speaker 00:
Right?

[00:21:58] Speaker 05:
That is correct.

[00:22:00] Speaker 05:
The standard is if it's a common, modern, foreign language.

[00:22:05] Speaker 05:
So yes, it is not applied strictly across all languages.

[00:22:10] Speaker 05:
And it has to be a direct and literal translation.

[00:22:12] Speaker 05:
So Your Honor, we are not just going to apply it no matter the circumstances, but would adhere to the precedent that we have, I believe.

[00:22:22] Speaker 03:
But that was all true in Palm Bay, right?

[00:22:24] Speaker 03:
It's a modern, common language.

[00:22:26] Speaker 03:
everything else, but nevertheless, we concluded that the foreign speaker wouldn't translate the term.

[00:22:36] Speaker 03:
So there are exceptions.

[00:22:38] Speaker 05:
Yes.

[00:22:38] Speaker 03:
And there would also be exceptions for genericness and descriptiveness?

[00:22:44] Speaker 05:
As far as... I don't think so, Your Honor, because as far as the precedent goes for genericness and descriptiveness... So there is a different test then.

[00:22:53] Speaker 03:
For confusion, there's exceptions.

[00:22:55] Speaker 03:
For genericness and descriptiveness, no exceptions.

[00:22:58] Speaker 03:
You go with the rigid rule.

[00:23:00] Speaker 03:
You go with the inflexible, rigid, hard and fast, bright-minded rule.

[00:23:05] Speaker 04:
Well, does it make a difference that in Palm Bay, the foreign language descriptor was a pronoun?

[00:23:16] Speaker 04:
It could have been, instead of the, it could have been madame clicko.

[00:23:23] Speaker 04:
whether a foreign language speaker would look at that and translate it, it would be unusual to translate it, because they simply take it as a pronoun.

[00:23:37] Speaker 04:
Vov is widow.

[00:23:38] Speaker 04:
It's also a pronoun in that context.

[00:23:44] Speaker 05:
The way that we read Hombé is that when you're faced with Vov Cliquot or Vov Royale on a bottle of wine or champagne,

[00:23:53] Speaker 05:
There is no relationship between voeuf and wine.

[00:23:57] Speaker 05:
And so therefore, even the ordinary American purchaser who is familiar with French may not be likely to stop and translate.

[00:24:06] Speaker 05:
It is a different approach, I think, when we have the descriptiveness and genericness inquiry, because what we have is the word of the name of the thing on the thing.

[00:24:16] Speaker 05:
You have vetements on clothing.

[00:24:18] Speaker 05:
And so it is likely, because it is that direct and literal translation of the name of the thing, that the consumer would stop and translate.

[00:24:25] Speaker 04:
To take your friend's logic to its logical extent, you should be applying that test to English as well, so that the direct French transliteration to English is vestiment, which is an English word.

[00:24:45] Speaker 04:
And if somebody names their friend

[00:24:48] Speaker 04:
their product vestments, do you look at it and say, gee, we don't think but 1% of the English-speaking Americans would understand that word, because that's where the logic goes.

[00:25:06] Speaker 05:
Your Honor, I think that logic would really do harm to our descriptiveness and genericness refusals, because

[00:25:13] Speaker 05:
We don't ask how many people will know what the meaning of the word is.

[00:25:16] Speaker 05:
We ask what is the meaning of the word, and is it merely descriptive?

[00:25:20] Speaker 05:
Is it generic for the goods and services?

[00:25:22] Speaker 05:
So I would reject that line.

[00:25:26] Speaker 01:
OK.

[00:25:26] Speaker 01:
Anything else?

[00:25:28] Speaker 05:
No, Your Honors.

[00:25:28] Speaker 05:
I would just ask that you affirm the board and their application of the Doctrine of Foreign Equivalence to the Vetements applications.

[00:25:37] Speaker 05:
Thank you.

[00:25:38] Speaker 01:
Thank you.

[00:25:46] Speaker 02:
Two very quick points.

[00:25:49] Speaker 02:
this court is well aware that by registering the trademark de vétements, it does not take the word clothing out of the hands of competitors or anybody else from using it.

[00:26:00] Speaker 02:
It also doesn't take the word vétements in the French language out of people being able to use it as a generic or descriptive term if that's what they're doing.

[00:26:09] Speaker 02:
If you're speaking French, you're going to use the word vétements.

[00:26:12] Speaker 02:
When you're selling products and using it in a trademark fashion,

[00:26:16] Speaker 02:
That's a different thing, and that's what the discussion is here about.

[00:26:19] Speaker 02:
Now, this likely to translate test?

[00:26:24] Speaker 04:
What about the sign in the store in New Orleans, or up in North Maine, in Bath, that has a section of the photos where it says Vetements.

[00:26:40] Speaker 02:
If they do, I've got no evidence or record of that.

[00:26:43] Speaker 02:
That would be news to me, but it would.

[00:26:48] Speaker 02:
I just don't know.

[00:26:51] Speaker 02:
That could have an impact if that were on this record.

[00:26:54] Speaker 02:
I'd have to address it, but I can't address it because I just don't know the mechanism under which that is actually happening.

[00:27:01] Speaker 02:
Our understanding from the record is nobody's using the French word, vétements.

[00:27:06] Speaker 04:
But this likely to translate to a standard test, that as stated- Not as a trademark, as a generic sign in the department store for their clothing department, because they translate, because it's New Orleans or Breton Rouge or up in Bath, Maine, a substantial portion of their customers speak French as their

[00:27:32] Speaker 02:
And based on that hypothetical, if they have all the signs inside a store in the French language.

[00:27:40] Speaker 02:
French and English, yeah.

[00:27:42] Speaker 04:
Well, French and English and clothing.

[00:27:43] Speaker 02:
OK, well, then perhaps people would see it.

[00:27:47] Speaker 02:
I'm not aware of it.

[00:27:48] Speaker 02:
The usage as a descriptor or generic term isn't precluded by a trademark registration.

[00:27:57] Speaker 02:
You can always continue to do that.

[00:28:00] Speaker 02:
But here, the likely to translate test

[00:28:02] Speaker 02:
In Ray's spirit, it says it's a threshold limitation on applying the doctrine of foreign equivalence.

[00:28:11] Speaker 02:
It is fundamental, and it's before you even get to it.

[00:28:16] Speaker 02:
Thank you.

[00:28:17] Speaker 02:
Thank you very much.

[00:28:17] Speaker 00:
Thank you.

[00:28:18] Speaker 00:
We thank both sides.

[00:28:19] Speaker 00:
The case is submitted.