Unfortunately, we lost our appeal to the US Court of Appeal for the Federal Circuit - see the attached article from the New York Times.The strangest part was that after the argument and the Court saying it would reserve its decision, it then issued a decision without providing any reasons. This was particularly surprising given Judge Chen's statements at the hearing about the doctrine of foreign equivalents:
"Is there any earthly reason why we would have a different rule for an English-speaking foreign nation than a foreign speaking foreign nation when you’re taking words out of that respective country’s dictionary and using them here for a United States trademark for the very goods that the term is used for in that foreign country?"
We suspect we did not get a written decision as such a decision would have created a circuit split on the primary significance test. It is very disappointing that the Court of Appeal seems to have dodged dealing with both the primary significance test and the problems with the doctrine of foreign equivalents.
We are now exploring our propects of appealing to the US Supreme Court.