Probative Value of Foreign Language Website Evidence, and Foreign Language Translation

Translation of Website Evidence for Litigation

An issue that often arises in Trademark and Copyright claims is whether or not the use of a term on foreign language websites has probative value as to whether or not the term is generic.

In a case involving the trademark application of an allegedly generic grocery related term (“Fresh Organics”), the applicant argues against the Trademark Examining Attorney’s evidence of genericness, stating there is no probative value to be found in foreign language websites where the term appears.

The applicant bases their argument on the ruling of In re Organik Technologies, Inc., 41 USPQ2d 1690, 1692 at n.3 (TTAB 1997), in which the Board refused to consider excerpts from foreign news sources absent evidence of circulation in the United States.

The crux of the applicant’s argument is two fold. First, they argue that since the foreign language websites originate in a foreign country and are on a topic (groceries) that is relatively local, it is highly unlikely they are ever viewed by a consumer in the United States. (In re Cell Therapeutics, 67 USPQ 2d 1795 (TTAB 2003). Second, the applicant argues it cannot be assumed that English language terms are uniformly understood around the world.

In their decision, the Board rules against the applicant in both instances.

As to the first argument, the Board finds because the average U.S. consumer may link to a foreign language website for informational and research purposes about a product, such foreign language websites do have probative value– although in this case the probative value is limited due to the term’s relative limited local interest. (Citing In re King Koil Licensing Company, Inc. (Serial No. 76565486, TTAB March 2, 2006) and In re Remacle, 66 USPQ2d 1222 (TTAB 2002).

Second, the Board finds in order to show a foreign language website’s use of a specific term is not understood in the same context as argued, the applicant must produce evidence of this- most likely through the use of a foreign language translation.

See In re Nutraceutical Corporation, (Serial No. 78975072, TTAB March 13, 2006).

Up Next: Translation of Last Will and Testament