It is not yet last call for “Moskovskaya” vodka as the Federal Circuit overturned an earlier ruling that the mark is geographically misleading. The U.S. Patent and Trademark Office’s Trademark Trial and Appeal Board had held that the mark, “Moskovskaya,” which means “of or from Moscow,” was geographically and deceptively misdescriptive, after admission by the mark’s owner, Spirits International BV (formerly Spirits International NV), that the product was not made, produced or sold in the Russian city. The U.S. Court of Appeals for the Federal Circuit vacated and remanded this decision in In re Spirits International NV, No. 2008-1369 (Fed. Cir. April 29, 2009), holding that the Trademark Trial and Appeal Board had failed to properly apply the third materiality element in a prima facie case for geographic deception under 15 U.S.C. § 1052(e)(3), which consists of the following three elements: (1) the primary significance of the mark was a generally known geographic location; (2) a consumer would likely believe incorrectly that the mark is an accurate description of the origin or other association of the goods with the geographic location, and (3) that the misdescription would materially affect the public’s decision to purchase the goods.” Id. at 8. The board had earlier held the third materiality element was satisfied if an “appreciable number of consumers for the goods” may be deceived, and found this element satisfied with evidence of 706,000 Russian-speaking people in the U.S. See id. at 16. The Federal Circuit disagreed that this evidence was sufficient, however, and held the materiality element of (e)(3) requires a showing that “a substantial portion of the relevant consumers would be materially influenced in the decision to purchase the product … by the geographic meaning of the mark.” Id. at 15. Because the board did not identify the relevant consumers of the product, it failed to properly apply the materiality element of (e)(3), and Moskovskaya has another shot at registration.