1312.02 By Appeal to the United States Court of Appeals for the Federal Circuit
A registrant that has filed an ex parte appeal to the Board from an expungement or reexamination proceeding, received a final decision therein from the Board, and is dissatisfied with that decision, may have remedy by way of an appeal to the United States Court of Appeals for the Federal Circuit. [ Note 1.] The determination by the Director to institute the proceeding is final and nonreviewable, and so cannot be the subject of judicial review. [ Note 2.] No remedy by civil action is available from ex parte appeals to the Board from expungement and reexamination proceedings. [ Note 3.]
A copy of the notice of appeal to the Federal Circuit must be filed with the Board via ESTTA, and with the Director, addressed to the Office of the General Counsel. [ Note 4.] It is unnecessary to request reconsideration of a final decision before filing any such appeal; however, a party requesting reconsideration must do so before filing a notice of appeal. [ Note 5.]
For information concerning the taking of an appeal to the Federal Circuit from a final decision of the Board, see TBMP § 902. For general information on the taking of an appeal from a final decision of the Board, see TBMP § 901.
NOTES:
1. Trademark Act § 21, 15 U.S.C § 1071; 37 C.F.R § 2.145(a).
2. 15 U.S.C § 1066A(c)(3); 15 U.S.C § 1066B(c)(3).
3. See 15 U.S.C § 1071(b)(1); 37 C.F.R § 2.145(c).
4. 37 C.F.R § 2.145(a)(2); MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES, 81 Fed. Reg. 69950, 69969 (Oct. 7, 2016) ("The Office also is amending the provisions in § 2.145 that require copies of notices of appeal, notices of election, and notices of civil action to be file with the Trademark Trial and Appeal Board to specify that such notices must be filed with the Board via ESTTA. These amendments codify the use of electronic filing and enhance the Office’s ability to properly handle applications, registrations, and proceedings while on review in federal court.").