In re Spirits International, N.V.

Spirits International (Spirits) (plaintiff) filed an application with the U.S. Patent and Trademark Office (PTO) to use the mark MOSKOVSKAYA for vodka. The Russian translation of the proposed mark was “of or from Moscow,” but Spirits admitted that the vodka would not be produced in Moscow. An examining attorney at the PTO found that Moscow was a generally known geographic location and that the public would likely believe based on the mark that the vodka was from Moscow. The examining attorney also found that this mistaken belief would be material to consumers because of the public’s high regard for Russian vodka. The examining attorney thus refused to register the mark. Spirits appealed to the Trademark Trial and Appeal Board (TTAB), which affirmed the refusal to register the mark after concluding that the mark was primarily geographically deceptively misdescriptive under 15 U.S.C. § 1052(e)(3). The TTAB stated that to establish a prima facie case that a mark is primarily geographically deceptively misdescriptive, (1) the mark’s primary significance must be a generally known geographic location; (2) the relevant public must be likely to believe that the goods originated in the place named in the mark, when the goods in fact did not; and (3) the misrepresentation must be a material factor in a consumer’s decision. The TTAB’s metric for materiality was that some portion of relevant consumers would be deceived by the mark. The TTAB found that the MOSKOVSKAYA mark satisfied the materiality requirement because the mark deceived Russian speakers, and there were 706,000 Russian speakers in the United States as of the 2000 U.S. Census. Spirits appealed the TTAB’s decision to the United States Court of Appeals for the Federal Circuit.