Feature

Trends Before the Trademark Trial and Appeal Board

Stephen R. Baird

©2017. Published in Landslide, Vol. 9, No. 3, January/February 2017, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

The stakes have risen in litigating the right to register a claimed trademark before the Trademark Trial and Appeal Board (TTAB) of the U.S. Patent and Trademark Office (USPTO), thanks to the U.S. Supreme Court’s 2015 decision in B&B Hardware, Inc. v. Hargis Industries, Inc.1 The often self-described “limited jurisdiction” of the TTAB (only deciding the “right to register”) doesn’t seem so limited any longer, now that important issues decided in an unappealed final TTAB decision may control the outcome of later trademark infringement and/or dilution actions in federal district court. Exactly how the TTAB will manage and evolve in this larger role remains to be seen.

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