Federal Circuit Finds No Constitutional Defect in Appointment of TTAB Judges

| Jeremy Anapol


Before Prost, Bryson, and Stoll. Appeal from the Trademark Trial and Appeal Board.

Summary: The appointments of TTAB judges do not share the constitutional defect that the Supreme Court remedied for PTAB judges in Arthrex.

Schiedmayer Celesta filed a petition with the Trademark Trial and Appeal Board (TTAB) seeking to cancel a registration for the “Schiedmayer” mark owned by Sweet 16 Musical Properties, Inc. The Board cancelled the registration and Sweet 16 appealed.

At the Federal Circuit, Sweet 16 argued that the administrative trademark judges (“ATJs”) who sat on the TTAB panel were appointed in violation of Article II of the Constitution, and that the TTAB’s decision therefore must be vacated. The Federal Circuit disagreed, finding that the Director of the Patent and Trademark Office held authority to modify TTAB decisions unilaterally. Because the Director held this unilateral authority, the ATJs were “inferior officers” under the Constitution and were properly appointment by the Secretary of Commerce. The Federal Circuit distinguished United States v. Arthrex, Inc., 141 S. Ct. 1970 (2021), where the Supreme Court held that administrative patent judges had not been constitutionally appointed to the Patent Trial and Appeal Board because the Director lacked sufficient authority to review their decisions.

On the merits, the Federal Circuit affirmed the cancellation of Sweet 16’s registration.

Editor: Paul Stewart