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Journal of Intellectual Property and Entertainment Law NEW YORK UNIVERSITY JOURNAL OF INTELLECTUAL PROPERTY AND ENTERTAINMENT LAW VOLUME 6 SPRING 2017 NUMBER 2 TOMATO, TAMATIE? REVISING THE DOCTRINE OF FOREIGN EQUIVALENTS IN AMERICAN TRADEMARK LAW THOMAS MERANTE* The growing specter of globalization impacts industries from communication to transportation, resulting in an unparalleled proliferation of cultural diffusion unmatched throughout history. Naturally, this cultural diffusion has familiarized American consumers with foreign brands and foreign languages despite the obvious English dominance domestically, resulting in a trademark quagmire. Under the current American doctrine of foreign equivalents, trademark examiners and courts translate non-English words into English to determine whether they meet the general United States Patent & Trademark Office (USPTO) registration requirements. However, by treating English and non-English words alike, the pool of source-identifying marks is unnecessarily restricted. This note argues that a clear rule-like form that relaxes restrictions of registering descriptive foreign language marks through offering ‘descriptive’ foreign-language a presumption of eligibility for protection would mitigate inconsistent application of the doctrine. Such a rule would also limit costs on consumers and producers that are caused by restricting the range of available marks and inhibiting creative and communicative branding. * J.D. Candidate, Class of 2017, New York University School of Law; B.A. Philosophy and International Political Economy, Fordham University. I am grateful to Professor Christopher Sprigman for his oversight, the JIPEL Notes Program participants for their many rounds of feedback, and Kathleen for her unfailing support. Errors or omissions are my own. 310 311 N.Y.U. JOURNAL OF INTELL. PROP. & ENT. LAW [Vol. 6:2 INTRODUCTION ........................................................................................................312 I. TRADEMARK FOUNDATIONS AND THE ROLE OF THE DOCTRINE OF FOREIGN EQUIVALENTS ...........................................................................313 A. Locating the Origins and Sources of Trademark Law ...........................314 1. From Consumer Protection to Brand Protection: Understanding the Goals and Justifications for Contemporary Trademark Law ...........315 i. Consumer Protection as the Historical Basis for Trademark Protection ....................................................................315 ii. Protecting the Valuable Goodwill and Communicative Branding Abilities of Mark Holders .............................................316 2. Optional, but Essential: The Value of Trademark Registration ........320 i. Distinctiveness as the Principal Requirement ...............................320 ii. Use and the Geographic Scope of Protection ...............................321 B. Explaining the Doctrine of Foreign Equivalents ...................................322 1. The Doctrine’s Elements ....................................................................322 2. Justifications for the Doctrine: Domestic Competition and International Comity ..........................................................................324 II. ISSUES WITH THE CURRENT STATE OF THE DOCTRINE ...................................325 A. Inconsistent Application Based on Disparate Judicial Intuitions .........325 B. Mismanaging the Relationship Between Information Gains Consumer Confusion ..............................................................................328 1. Information vs. Confusion: Determining the Proper Relationship ....329 2. The American Marketplace and Overprotection of Consumers ........330 C. Inhibition of Imagination and Communicative Branding ......................332 III. REEVALUTAING THE DOCTRINE AND PROPOSING SOLUTIONS ......................337 A. A Rule is Preferable to the Current Guideline ......................................338 1. Benefits of Adopting a Foreign Equivalents Rule ..............................339 2. Features of the Proposed Rule: Standardizing Translation Methods and Adopting a Confusion Threshold ..................................339 B. Permitting Registration of Foreign Descriptive Terms ..........................342 1. Informational and Branding Advantages from Protecting Descriptive Foreign-Language Marks ...............................................342 2. Precedent for Protecting Descriptive Foreign-Language Marks ......344 C. Applying the Proposed Rule: “DELICIOSA” Versus “NÓSTIMA” ............................................................................................346 D. Addressing Competition Concerns through Descriptive Fair Use and Reexamination ..........................................................................347 CONCLUSION ...........................................................................................................349 2017] FOREIGN EQUIVALENTS IN AMERICAN TRADEMARK LAW 312 INTRODUCTION International trade has grown tremendously over the last thirty years due to significant decreases in communication and transportation costs,1 and with such growth the impact of effective brand and trademark protection has increased correspondingly. Trademarks move across national borders as they never have before, reaching new populations of diverse and multilingual consumers.2 Although English remains the dominant language in the United States, American consumers are growing more familiar with foreign brands and foreign languages.3 Accordingly, American trademark law, which addresses foreign language trademarks under the doctrine of foreign equivalents, must critically assess its foundational objectives and its means for achieving them in today’s complex marketplace. Under the American doctrine of foreign equivalents, trademark examiners and courts translate non-English words into English to determine whether they meet the general United States Patent & Trademark Office (USPTO) registration requirements. The doctrine aims to provide a guideline for the registration of foreign words in a country where the vast majority of consumers exclusively speak English, but twenty-one percent of the population speaks a language other than English in the home.4 However, as commentators have noted, the precarious “guideline” nature of the doctrine has occasioned unequal application of the law and disparate results.5 When the doctrine is applied, it treats foreign words exactly the same as English words in assessing their distinctiveness and their likelihood of causing consumer confusion. By treating English and non-English words alike, however, those applying the doctrine often excessively restrict the pool of source-identifying marks and waste creative branding opportunities. This note will argue that the doctrine of foreign equivalents requires a clearer, rule-like form and a reformed substance. A rule-like form, as opposed to the doctrine’s current form as a guideline, would mitigate inconsistent application of the doctrine. Moreover, relaxing the restrictions on registering certain descriptive 1 See generally WORLD TRADE ORGANIZATION, WORLD TRADE REPORT (2015), available at https://www.wto.org/english/res_e/booksp_e/world_trade_report15_e.pdf. 2 See Cᴀᴍɪʟʟᴇ Rʏᴀɴ, U.S. Cᴇɴsᴜs Bᴜʀᴇᴀᴜ, Lᴀɴɢᴜᴀɢᴇ Usᴇ ɪɴ ᴛʜᴇ Uɴɪᴛᴇᴅ Sᴛᴀᴛᴇs: 2011, at 1 (2013). 3 Id. at 2. 4 Id. 5 See generally Elizabeth J. Rest, Lost in Translation: A Critical Examination of Conflicting Decisions Applying the Doctrine of Foreign Equivalents, 96 TRADEMARK REP. 1211 (2006). 313 N.Y.U. JOURNAL OF INTELL. PROP. & ENT. LAW [Vol. 6:2 foreign-language marks would allow consumers to recognize informational gains and mark holders to establish communicative branding strategies. Part I of this note will examine American trademark law’s general purposes and the scope of the trademark holder’s rights. This section will then proceed to place the doctrine’s treatment of foreign-language marks within trademark law’s broader framework. Part II explains how and why examiners and courts apply the doctrine both inconsistently and in a manner that fails to assess properly what information consumers are losing or gaining through foreign-language marks. This part concludes that the doctrine imposes costs on consumers and producers by restricting the range of available marks, thereby inhibiting creative and communicative branding. Part III outlines how Congress or the courts should adapt the doctrine to increase the consistency and predictability of its application as well as the substantive benefits for the marketplace. Specifically, this part advocates that ‘descriptive’ foreign-language marks gain a presumption of eligibility for protection.6 This section justifies the presumption by assessing the advantages to both consumers and producers and showing how many marks with descriptive features or elements already gain registration in the United States. Recent foreign precedent from both the European Court of Justice and the Australian High Court enhance the viability of the proposal. I TRADEMARK FOUNDATIONS AND THE ROLE OF THE DOCTRINE OF FOREIGN EQUIVALENTS This section aims to provide the reader with an understanding of how the doctrine of foreign equivalents functions within American trademark law. After identifying the bases for trademark protection and describing the Lanham Act’s registration requirements, this section will offer the rationales and general vision of the doctrine of foreign equivalents using case law and the USPTO’s Trademark Manual of Examining Procedure (TMEP). 6 Descriptive marks refer to one or more
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