TTAB judges unaffected by Arthrex, confirms Fed Circ
The decisions of the US Trademark Trial and Appeal Board (TTAB) judges are unaffected by the US Supreme Court’s ruling in US v Arthrex, according to the US Court of Appeals for the Federal Circuit.
In a precedential decision delivered on Wednesday, September 1, the Federal Circuit determined that statutes governing the TTAB were different to those covering the US Patent Trial and Appeal Board.
During the proceedings, Sweet 16 Musical Properties had sought a reversal of the TTAB’s decision that cancelled a piano trademark registration, arguing that it lacked validity under Arthrex.
In June, SCOTUS has dictated that judges for the Patent Trial and Appeal Board (PTAB) were unconstitutionally appointed, and in its remedy, handed power to the US Patent and Trademark Office director to assess inter partes review decisions.
But this week the Federal Circuit contended that this remedy was unnecessary for the TTAB, as the board’s functions did not have the same defect pertaining to the PTAB board director’s authority before the Arthrex decision resolved it.
Background and constitutional challenge
The dispute between the piano makers arose when Schiedmayer Celesta asserted that it is the successor in interest to the “Schiedmayer” trademark, and sought to cancel its rival, Sweet 16’s, registration for the “Schiedmayer” mark in 2015. The TTAB upheld this opposition and proceeded to cancel the mark.
On appeal, Sweet 16 raised a constitutional challenge to the composition of the TTAB panel, contending that the administrative trademark judges (ATJs) were appointed in violation of the constitution, and that the board’s decision must be vacated.
Sweet 16 argued that in view of the Supreme Court’s decision in Arthrex, the ATJs must also be considered “principal officers” of the US, and because the ATJs are not appointed by the US president and confirmed by the Senate, their decisions were invalid.
But the Federal Circuit dismissed Sweet 16’s arguments, pointing out that even before the enactment of the Trademark Modernization Act of 2020 the trademark statutes gave the TTAB director significantly more supervisory control over administrative trademark judges and their decisions than over administrative patent judges in inter partes review proceedings.
The Federal Circuit stated: “Accordingly, in the trademark context, unlike in the pre-Arthrex patent context, the director has for more than 20 years had the authority to direct that any board case be decided by a single member of the TTAB, either initially or on rehearing.”
Sweet 16 had countered that even if the director in 2019 had the power to unilaterally “decide” a case, that power did not include the power to rehear or reconsider decisions.
But the Federal Circuit disagreed, stating that “the director in 2019 had the power both to unilaterally decide a case in the first instance and to decide a case on rehearing by overriding an initial TTAB decision”.
The Federal Circuit concluded that “the end result of the court’s decision in Arthrex was to create a regime very similar to the trademark statutory scheme in place as of 2019.”
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