SCOTUS denies writ claiming Arthrex applies to TTAB
The US Supreme Court has denied a trademark applicant's appeal in an ongoing dispute with Coca-Cola that claimed the ruling in Arthrex also calls into question the constitutionality of the Trademark Trial and Appeal Board (TTAB).
Alberto Solar-Somohano filed a petition for writ of certiorari with the Supreme Court in February, claiming that the US Court of Appeal for the Federal Circuit’s Arthrex ruling, that judges of the Patent Trial and Appeal Board (PTAB) were unconstitutionally appointed, also applied to the trademark board.
The Supreme Court denied the petition yesterday, May 17.
The petition argued that the court should hear the case because it was “directly related” to Arthrex but involving “trademark judges”.
“Thus, granting the writ before judgment saves resources most of all to all those in the trial trademark appeal board,” said the petition.
Solar-Somohano previously tried to appeal the case to the Federal Circuit in March last year, on the grounds that Arthrex makes the TTAB unconstitutional. Similarly, the Federal Circuit denied this appeal.
‘Cocaw’ TM dispute
Solar-Somohano had first sought to apply for the stylized mark ‘Cocaw’ for “drinking water with vitamins; fruit beverages; colas” in June 2016. The application was published for opposition in December 2016.
In January 2017, Coca-Cola filed a notice of opposition of the mark on the basis of likelihood of confusion between ‘Cocaw’ and its myriad coke marks, and also cited “at least 13” other instances of Solar-Somohano applying to register close variations of Coca-Cola marks.
The TTAB refused the registration of the ‘Cocaw’ mark in September 2019.
Throughout the proceedings, Solar-Somohano made several appeals to the Court of Appeals for the Federal Circuit.
Most recently, the Federal Circuit ordered to hold an appeal from Solar-Somohano pending the Supreme Court’s decision in Arthrex on April 27.
“Following that decision, this court may request supplemental briefing from the parties concerning whether, and to what extent, that decision affects the appropriate disposition of these cases,” the document read.
Arthrex hearing
The Supreme Court heard its first arguments in Arthrex in March this year, with the key question centred around whether judges at the PTAB should be classed as principal or ‘inferior’ officers.
After hearing the first oral arguments, the court seems to be convinced that the PTAB judges can be classed as ‘principal’ officers, but are not in violation of the Appointments Clause, lawyers told WIPR.
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