By Molly R. Silfen, Jason W. Melvin, & Andrew E. Renison | 62 Am. U. L. Rev. 991 (2013)
Among the many cases decided every year by the U.S. Court of Appeals for the Federal Circuit, relatively few relate to trademark law. Unlike patent law and other substantive areas over which the Federal Circuit has exclusive jurisdiction, the court’s jurisdiction over trademark law arises only in appeals from the U.S. Patent and Trademark Office (PTO) and in appeals that otherwise fall within the Federal Circuit’s exclusive jurisdiction—such as appeals involving both patent and trademark issues. In 2012, of the over 700 opinions issued by the court, only thirteen—eleven precedential and two nonprecedential—related to trademark law. Thus, under two percent of the court’s opinions related to trademark law last year. But what the Federal Circuit lacks in quantity it makes up for in the importance of the issues, since the court addresses specialized trademark registration issues that are rarely addressed by other appellate courts. Of the thirteen trademark opinions, twelve began as proceedings before the PTO’s Trademark Trial and Appeal Board (TTAB), and one began in district court, in a case that also involved patent law issues.
The Federal Circuit issued another nine orders in trademark cases—one summary affirmance issued without an opinion, four remands for cases that were settled or were otherwise rendered moot during the course of the appeal, and four transfers to regional circuits based on the Federal Circuit’s lack of jurisdiction.
Meanwhile, in 2012, the other twelve circuits issued approximately seventeen opinions on trademark issues, while state courts of appeal issued roughly eight. Thus, although trademark law falls within the Federal Circuit’s jurisdiction, the Federal Circuit is far from the only appellate court deciding trademark issues. But since the Federal Circuit is the only appellate court hearing appeals from the TTAB, it is generally the only reviewer of trademark registration issues, while the other appellate courts generally review issues relating to a party’s ability to use a mark.