903.06 Civil Action Precluded By Appeal To Federal Circuit
In a proceeding before the Board, a party that is dissatisfied with the decision of the Board may have remedy by way of civil action, unless an appeal to the United States Court of Appeals for the Federal Circuit has been taken. [ Note 1.] See TBMP § 902.03.
However, in an inter partes case, if an appeal has been taken to the Federal Circuit, and a party adverse to the appellant files a notice electing to have further proceedings conducted instead by way of civil action, the appeal to the Federal Circuit will be dismissed, and the party which filed the appeal must commence a civil action, within 30 days after the filing of the notice of election, for review of the appealed decision, failing which that decision will govern further proceedings in the case. See TBMP § 901.01 and TBMP § 902.04.
NOTES:
1. Trademark Act § 21(b)(1), 15 U.S.C. § 1071(b)(1). Cf. Trademark Act § 21(a)(1), 15 U.S.C. § 1071(a)(1) (party which appeals to the Federal Circuit thereby waives its right to proceed under Trademark Act § 21(b)); 37 CFR § 2.145(c)(2) (applicant in ex parte case which takes an appeal to the Federal Circuit waives any right to proceed under Trademark Act § 21(b)).