Test Applied
The Trademark Manual of Examining Procedure ("TMEP") states the test for applying the doctrine of foreign equivalents is "whether, to those American buyers familiar with the foreign language, the word would denote its English equivalent". With respect to descriptive or generic marks, the TMEP specifies that in determining whether a foreign term is entitled to registration, "he test is whether, to those American buyers familiar with the foreign language, the word would have a descriptive or generic connotation". However, "foreign words from dead or obscure languages may be so unfamiliar to the American buying public that they should not be translated into English for descriptiveness purposes." This test is also applied by courts to determine "whether that foreign word would be descriptive of the product to that segment of the purchasing public which is familiar with that language."
It is unclear whether the test differs for asserted cases of likelihood of confusion. The Federal Circuit has recently clarified the applicability of the doctrine of foreign equivalents in likelihood of confusion cases, stating that "When it is unlikely that an American buyer will translate the foreign mark and will take it as it is, then the doctrine of foreign equivalents will not be applied". The court noted that "the doctrine of foreign equivalents is not an absolute rule and should be viewed merely as a guideline". Instead "he doctrine should be applied only when it is likely that the ordinary American purchaser would "stop and translate into its English equivalent". The Federal Circuit specifically found that "it is improbable that the average American purchaser would stop and translate 'VEUVE' into 'widow'".
The Palm Bay Imports case suggests that it is the same test stating "nder the doctrine of foreign equivalents, foreign words from common languages are translated into English to determine genericness, descriptiveness, as well as similarity of connotation in order to ascertain confusing similarity with English word marks."
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