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How does the Trademark Trial and Appeal Board evaluate trademarks?

The Trademark Trial and Appeal Board (TTAB) is a neutral body that functions like a court for trademark matters at the United States Patent and Trademark Office (USPTO). TTAB's trademark judges are authorized to determine a party's right to register a trademark with the federal government. The judge is not authorized to determine whether you have the right to use a trademark, just whether you have the right to register it. Additionally, the Board is not authorized to determine questions of trademark infringement or unfair competition or to award money damages or attorney's fees. For anything other than determining the right of federal registration, parties must file a case in federal or state court.

While the TTAB is authorized to handle five different types of cases, the three main categories of proceedings  are appeals, oppositions, and cancellations.


One of the most common TTAB proceedings is an appeal of the decision of a USPTO examining attorney. During the application process, an examining attorney may refuse to register a mark for various legal reasons. For example, the mark's registration may be refused because it merely describes  goods and services as listed in the application or is likely to cause confusion with a registered mark. If the USPTO provides a "final" refusal and the applicant disagrees with that decision, the applicant may appeal to the TTAB who then decides whether the mark may be registered.

TTAB's determination is made by a three-judge panel that independently reviews the application file, including all communications between the applicant and the USPTO examining attorney, and issues a written decision. Because it reviews the same legal record and applies the same legal standard as the USPTO, it can be difficult for an applicant to win an appeal.


Another common Board proceeding is an "opposition." In an opposition, a party may oppose the trademark application of another party in order to stop that party from obtaining a federal registration. Before a trademark can register, the mark must be published for opposition in the Official Gazette. Publication starts the opposition period, which initially lasts 30 days, but may be extended. During the original opposition period, any party who believes that it would be damaged if the published mark registers may oppose registration. Although there are many possible grounds for opposition, the most common one is a claim that a likelihood of confusion exists between the trademarks.

In this type of proceeding, a three-judge panel issues a decision after both sides have had an opportunity to present their evidence and make arguments in legal briefs before the TTAB.


The third type of common Board proceeding is a "cancellation." In a cancellation, one party seeks to cancel a trademark registration owned by another party. There are many possible grounds for attempting to cancel a registration. Some of the more common ones include claims that the registered mark is likely to be confused with the other party's mark, that the registrant is not the rightful owner of the mark, and that the registrant is no longer using its mark.


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