Champagne, cordon bleu, and vodka. The U.S. Court of Appeals for the Federal Circuit was ready for a dinner party.
The Trademark Trial and Appeal Board last year had rejected the mark because “Moskovskaya” has nothing to do with its namesake Moscow and thus would deceive consumers as geographically deceptively. The Federal Circuit disagreed and remanded the case for further evaluation.
At issue in the case is whether a substantial number of the potential consumers will likely be influenced in purchasing decisions thinking the vodka is “from Moscow.” The Federal Circuit noted only 0.25 percent of the U.S. population speaks Russian. But the court said this question remains: Are Russian speakers a greater percentage of the vodka-drinking public?
Judges Randall Rader, Richard Linn, and Timothy Dyk ruled unanimously in favor of Spirits International.
“The ordinary American consumer would not translate VEUVE CLICQUOT because its literal translation would be irrelevant to even those ordinary Americans who speak French,” Dyk wrote by way of explanation. “Similarly, CORDON BLEU has such a well established alternative meaning that the literal translation is irrelevant because even French speakers would not translate the mark.”
Toast a win for Covington & Burling senior counsel Bingham Leverich, who argued the case for Spirits International. Asked whether he speaks Russian, Leverich responded: “The answer is nyet.” And Leverich, co-chair of the firm’s trademark and copyright group, admitted he has not consumed Moskovskaya vodka, which he says is a big seller in Europe.
Argument in the Moskovskaya trademark case happened to land on a panel where one of the three judges speaks Russian.
Rader, in fact, says he speaks three languages—Russian, Finnish, and a “little English.” Here's how Rader explains it to The BLT: “My Russian does not enable me to give long technical speeches, but I can carry on a conversation quite fluently. My Finnish is 'rusty,' but I was once a translator for that language. My English gets more criticism than either of the other two, especially in legal opinions.”