901    Appeals—In General

Trademark Act § 21, 15 U.S.C. § 1071  Appeal to courts.

  • (a) Persons entitled to appeal; United States Court of Appeals for the Federal Circuit; waiver of civil action; election of civil action by adverse party; procedure.
    • (1) An applicant for registration of a mark, party to an interference proceeding, party to an opposition proceeding, party to an application to register as a lawful concurrent user, party to a cancellation proceeding, a registrant who has filed an affidavit as provided in section 1058 of this title or section 1141k of this title,, an applicant for renewal, or a registrant subject to an ex parte expungement proceeding or an ex parte reexamination proceeding, who is dissatisfied with the decision of the Director or Trademark Trial and Appeal Board, may appeal to the United States Court of Appeals for the Federal Circuit thereby waiving his right to proceed under subsection (b) of this section: Provided, That such appeal shall be dismissed if any adverse party to the proceeding, other than the Director, shall, within twenty days after the appellant has filed notice of appeal according to paragraph (2) of this subsection, files notice with the Director that he elects to have all further proceedings conducted as provided in subsection (b) of this section. Thereupon the appellant shall have thirty days thereafter within which to file a civil action under subsection (b), of this section, in default of which the decision appealed from shall govern the further proceedings in the case.
    • (2) When an appeal is taken to the United States Court of Appeals for the Federal Circuit, the appellant shall file in the United States Patent and Trademark Office a written notice of appeal directed to the Director, within such time after the date of the decision from which the appeal is taken as the Director prescribes, but in no case less than 60 days after that date. …
  • (b) Civil action; persons entitled to; jurisdiction of court; status of Director; procedure.
    • (1) Whenever a person authorized by subsection (a) of this section to appeal to the United States Court of Appeals for the Federal Circuit, except for a registrant subject to an ex parte expungement proceeding or an ex parte reexamination proceeding, is dissatisfied with the decision of the Director or Trademark Trial and Appeal Board, said person may, unless appeal has been taken to said United States Court of Appeals for the Federal Circuit, have remedy by a civil action if commenced within such time after such decision, not less than sixty days, as the Director appoints or as provided in subsection (a) of this section. The court may adjudge that an applicant is entitled to a registration upon the application involved, that a registration involved should be cancelled, or such other matter as the issues in the proceeding require, as the facts in the case may appear. Such adjudication shall authorize the Director to take any necessary action, upon compliance with the requirements of law. However, no final judgment shall be entered in favor of an applicant under section 1051(b) of this title before the mark is registered, if such applicant cannot prevail without establishing constructive use pursuant to section 1057(c) of this title.
    • (2) The Director shall not be made a party to an inter partes proceeding under this subsection, but he shall be notified of the filing of the complaint by the clerk of the court in which it is filed and shall have the right to intervene in the action.
    • (3) In any case where there is no adverse party, a copy of the complaint shall be served on the Director, and, unless the court finds the expenses to be unreasonable, all the expenses of the proceeding shall be paid by the party bringing the case, whether the final decision is in favor of such party or not. In suits brought hereunder, the record in the United States Patent and Trademark Office shall be admitted on motion of any party, upon such terms and conditions as to costs, expenses, and the further cross-examination of the witnesses as the court imposes, without prejudice to the right of any party to take further testimony. The testimony and exhibits of the record in the United States Patent and Trademark Office, when admitted, shall have the same effect as if originally taken and produced in the suit.
    • (4) Where there is an adverse party, such suit may be instituted against the party in interest as shown by the records of the United States Patent and Trademark Office at the time of the decision complained of, but any party in interest may become a party to the action. If there are adverse parties residing in a plurality of districts not embraced within the same State, or an adverse party residing in a foreign country, the United States District Court for the Eastern District of Virginia shall have jurisdiction and may issue summons against the adverse parties directed to the marshal of any district in which any adverse party resides. Summons against adverse parties residing in foreign countries may be served by publication or otherwise as the court directs.

37 C.F.R. § 2.145  Appeal to court and civil action.

  • (a) For an Appeal to the United States Court of Appeals for the Federal Circuit under section 21(a) of the Act.
    • (1) An applicant for registration, a registrant in an ex parte expungement or reexamination proceeding, any party to an interference, opposition, or cancellation, or any party to an application to register as a concurrent user, hereinafter referred to as inter partes proceedings, who is dissatisfied with the decision of the Trademark Trial and Appeal Board, and any registrant who has filed an affidavit or declaration under section 8 or section 71 of the Act, or filed an application for renewal under section 9 of the Act, and is dissatisfied with the decision of the Director (§§ 2.165 and 2.184 and § 7.40 of this chapter), may appeal to the United States Court of Appeals for the Federal Circuit. It is unnecessary to request reconsideration before filing any such appeal; however, any request to reconsider the decision must be made before filing a notice of appeal.
    • (2) In all appeals under section 21(a), the appellant must take the following steps:
      • (i) File the notice of appeal with the Director, addressed to the Office of the General Counsel, as provided in § 104.2 of this chapter;
      • (ii) File a copy of the notice of appeal with the Trademark Trial and Appeal Board via ESTTA; and
      • (iii) Comply with the requirements of the Federal Rules of Appellate Procedure and Rules for the United States Court of Appeals for the Federal Circuit, including serving the requisite number of copies on the Court and paying the requisite fee for the appeal.
    • (3) The following requirements must also be satisfied:
      • (i) The notice of appeal shall specify the party or parties taking the appeal and shall designate the decision or part thereof appealed from.
      • (ii) In inter partes proceedings, the notice of appeal must be served as provided in § 2.119.
  • * * * *
  • (b) For a notice of election under section 21(a)(1) to proceed under section 21(b) of the Act.
    • (1) Any applicant or registrant in an ex parte case who takes an appeal to the United States Court of Appeals for the Federal Circuit waives any right to proceed under section 21(b) of the Act.
    • (2) If an adverse party to an appeal taken to the United States Court of Appeals for the Federal Circuit by a defeated party in an inter partes proceeding elects to have all further review proceedings conducted under section 21(b) of the Act, that party must take the following steps:
      • (i) File a notice of election with the Director, addressed to the Office of the General Counsel, as provided in § 104.2 of this chapter;
      • (ii) File a copy of the notice of election with the Trademark Trial and Appeal Board via ESTTA; and
      • (iii) Serve the notice of election as provided in § 2.119.
  • (c) For a civil action under section 21(b) of the Act.
    • (1) Any person who may appeal to the United States Court of Appeals for the Federal Circuit (paragraph (a) of this section), except for a registrant subject to an ex parte expungement or reexamination proceeding, may have remedy by civil action under section 21(b) of the Act. It is unnecessary to request reconsideration before filing any such civil action; however, any request to reconsider the decision must be made before filing a civil action.
    • (2) Any applicant or registrant in an ex parte case who seeks remedy by civil action under section 21(b) of the Act must serve the summons and complaint pursuant to Rule 4(i) of the Federal Rules of Civil Procedure with the copy to the Director addressed to the Office of the General Counsel as provided in § 104.2 of this chapter. A copy of the complaint must also be filed with the Trademark Trial and Appeal Board via ESTTA.
    • (3) The party initiating an action for review of a Board decision in an inter partes case under section 21(b) of the Act must file notice thereof with the Trademark Trial and Appeal Board via ESTTA no later than five business days after filing the complaint in the district court. The notice must identify the civil action with particularity by providing the case name, case number, and court in which it was filed. A copy of the complaint may be filed with the notice. Failure to file the required notice can result in termination of the Board proceeding and further action within the United States Patent and Trademark Office consistent with the final Board decision.
  • (d) Time for appeal or civil action.
    • (1) For an appeal under section 21(a). The notice of appeal filed pursuant to section 21(a) of the Act must be filed with the Director no later than sixty-three (63) days from the date of the final decision of the Trademark Trial and Appeal Board or the Director. In inter partes cases, the time for filing a notice of cross-appeal expires 14 days after service of the notice of appeal or 63 days from the date of the decision of the Trademark Trial and Appeal Board or the Director, whichever is later.
    • (2) For a notice of election under 21(a)(1) and a civil action pursuant to such notice of election. The times for filing a notice of election under section 21(a)(1) and for commencing a civil action pursuant to a notice of election are governed by section 21(a)(1) of the Act.
    • (3) For a civil action under section 21(b). A civil action must be commenced no later than sixty-three (63) days after the date of the final decision of the Trademark Trial and Appeal Board or Director. In inter partes cases, the time for filing a cross-action expires 14 days after service of the summons and complaint or 63 days from the date of the decision of the Trademark Trial and Appeal Board or the Director, whichever is later.
    • (4) Time computation.
      • (i) If a request for rehearing or reconsideration or modification of the Board decision is filed within the time specified in § 2.127(b), § 2.129(c), or § 2.144, or within any extension of time granted thereunder, the time for filing an appeal or commencing a civil action shall expire no later than sixty-three (63) days after action on the request.
      • (ii) Holidays. The times specified in this section in days are calendar days. If the last day of time specified for an appeal, notice of election, or commencing a civil action falls on a Saturday, Sunday or Federal holiday in the District of Columbia, the time is extended to the next day which is neither a Saturday, Sunday nor a Federal holiday in the District of Columbia pursuant to § 2.196.
  • * * * *

Please Note: Effective January 14, 2017, 37 C.F.R. § 2.145  was reorganized and reworded to improve the clarity and structure of the rule and to align the provisions with the analogous rules governing judicial review of Patent Trial and Appeal Board decisions in 37 C.F.R. part 90. For a detailed summary of the amendments, see MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES OF PRACTICE, 81 Fed. Reg. 69950, 69969-70 (Oct. 7, 2016).

Effective December 18, 2021, 37 C.F.R. § 2.145 was amended to implement provisions of the Trademark Modernization Act of 2020 (TMA). For a detailed summary of the amendments, see CHANGES TO IMPLEMENT PROVISIONS OF THE TRADEMARK MODERNIZATION ACT OF 2020, 86 Fed. Reg. 64300, 64320 (Nov. 17, 2021).

901.01    Avenues Of Appeal

A party to a Board proceeding who is dissatisfied with the decision of the Board is provided, under the Act, with two possible (mutually exclusive) remedies. [ Note 1.] The dissatisfied party may either:

  • (1) Appeal to the United States Court of Appeals for the Federal Circuit ("Federal Circuit"), which will review the decision from which the appeal is taken on the record before the USPTO, or
  • (2) Have remedy by civil action (in a United States District Court), in which the court "may adjudge that an applicant is entitled to a registration upon the application involved, that a registration involved should be cancelled, or such other matter as the issues in the proceeding require, as the facts in the case may appear." [ Note 2.]

In an inter partes proceeding, if a dissatisfied party chooses to file an appeal to the Federal Circuit, any adverse party may, within 20 days after the filing of the notice of appeal, file notice that it elects to have the appeal dismissed, and to have further proceedings conducted instead by way of civil action. [ Note 3.] Within 30 days after the filing of a notice of election by an adverse party, the appellant must commence a civil action for review of the Board’s decision, failing which the Board’s decision will govern further proceedings in the case. [ Note 4.]

The Federal Circuit is often referred to in Board decisions as "our primary reviewing court." [ Note 5.]

NOTES:

 1.   Snyder’s Lance, Inc. v. Frito Lay North America, Inc., 991 F.3d 512, 2021 USPQ2d 318, at *16 (4th Cir. 2021) ("[A] party seeking review of a subsequent Trademark Board decision may seek review in either the Federal Circuit or the district court, even if the Trademark Board’s initial decision was reviewed by the Federal Circuit."); Gillette Co. v. "42" Products Ltd., 435 F.2d 1114, 168 USPQ 197, 199-200 (9th Cir. 1970) (where dissatisfied party seeking appeal of unfavorable decision of Board on remand was not the dissatisfied party who filed the earlier appeal to the Court of Patent Appeals, party was not foreclosed from appealing to the district court by way of civil action).

 2.   Trademark Act § 21, 15 U.S.C. § 1071; 37 C.F.R. § 2.145. See Snyder’s Lance, Inc. v. Frito Lay North America, Inc., 991 F.3d 512, 2021 USPQ2d 318, at *2 (4th Cir. 2021) ("Under the Lanham Act, [plaintiffs] could seek review of the Trademark Board’s 2014 decision in either the Federal Circuit (pursuant to 15 U.S.C. § 1071(a)) or a district court (pursuant to § 1071(b))."); Shammas v. Focarino, 784 F.3d 219, 114 USPQ2d 1489, 1490 (4th Cir. 2015) (dissatisfied trademark applicant may seek review of an adverse ruling on his trademark application either by appealing the ruling to the Court of Appeals for the Federal Circuit or by commencing an action in a federal district court), cert. denied sub nom. Shammas v. Hirschfeld, 136 S. Ct. 1376, (2016); Jean Alexander Cosmetics, Inc. v. L’Oreal USA, Inc., 458 F.3d 244, 80 USPQ2d 1470, 1479 (3d Cir. 2006) (discussing prevailing party’s ability to appeal Board decision), cert. denied, 127 S. Ct. 1878 (2007); CAE Inc. v. Clean Air Engineering Inc., 267 F.3d 660, 60 USPQ2d 1449, 1458 (7th Cir. 2001) (choice of appealing TTAB decision in inter partes case to Federal Circuit on closed record of Board proceedings or a federal district court with the option of presenting additional evidence); Spraying Systems Co. v. Delavan Inc., 975 F.2d 387, 24 USPQ2d 1181, 1183 (7th Cir. 1992) (appeal to district court is in part an appeal and in part a new action); Alltrade Inc. v. Uniweld Products Inc., 946 F.2d 622, 20 USPQ2d 1698, 1703 (9th Cir. 1991) (where winning and losing party each appealed to different district court; discussion of appealability of those aspects of a ruling with which "winning" party is dissatisfied, and dismissal, stay or transfer of second-filed appeal); RxD Media, LLC v. IP Application Development LLC, 377 F. Supp. 3d 588, 591 (E.D. Va. 2019) (a party to an opposition proceeding dissatisfied with the result of a TTAB decision may either appeal that decision to the Federal Circuit or commence a de novo civil action in a federal district court where it is permitted to conduct discovery and submit new evidence and testimony), aff’d, 986 F.3d 361, 2021 USPQ2d 81 (4th Cir. 2021); Combe Inc. v. Dr. August Wolff GmbH & Co., 382 F. Supp. 3d 429, 443 (E.D. Va. 2019) (in a § 1071(b) action, "the parties to the action have the right to admit the PTO record as well as any new evidence not presented to the PTO that is admissible under the Federal Rules of Evidence and Civil Procedure"), aff’d, 851 F. App’x. 357 (4th Cir. 2021); Product Source International, LLC v. Nahshin, 112 F. Supp. 3d 383, 387 (E.D. Va. 2015) (applicant who is dissatisfied with final decision of TTAB has choice of appealing the decision to the Court of Appeals for the Federal Circuit or a remedy by civil action in district court).

 3.   Trademark Act § 21(a)(1), 15 U.S.C. § 1071(a)(1); 37 C.F.R. § 2.145(b)(2).

 4.   Trademark Act § 21(a)(1), 15 U.S.C. § 1071(a)(1); 37 C.F.R. § 2.145(d)(3).

 5.   See, e.g., Robinson v. Hot Grabba Leaf, LLC, 2019 USPQ2d 149089, at *5 (TTAB 2019) ("Our primary reviewing court, the U.S. Court of Appeals for the Federal Circuit …"), cancellation order vacated by default judgment, No. 0:19-cv-61614-DPG (S.D. Fla. Dec. 17, 2019); In re Ocean Technology, Inc., 2019 USPQ2d 450686, at *5 (TTAB 2019) ("The Board and our primary reviewing court (the Federal Circuit and its predecessor the Court of Customs and Patent Appeals)..."); In re Thor Tech, 90 USPQ2d 1634, 1637 (TTAB 2009); Giersch v. Scripps Networks Inc., 90 USPQ2d 1020, 1024 (TTAB 2009); Grand Canyon West Ranch LLC v. Hualapai Tribe, 88 USPQ2d 1501, 1506 n.2 (TTAB 2008); Carefirst of Maryland Inc. v. FirstHealth of the Carolinas Inc., 77 USPQ2d 1492, 1514 (TTAB 2005), aff’d, 479 F.3d 825, 81 USPQ2d 1919 (Fed. Cir. 2007).

901.02    What May Be Appealed

901.02(a)    Final Decision Versus Interlocutory Decision

The only type of Board decision that may be appealed, whether to the United States Court of Appeals for the Federal Circuit ("Federal Circuit") or by way of civil action, is a final decision, i.e., a final dispositive ruling that ends litigation on the merits before the Board. [ Note 1.]

Interlocutory decisions or orders, i.e., decisions or orders that do not put an end to the litigation before the Board, are not appealable. [ Note 2.]

Appealability is not limited to decisions issued by the Board after final hearing. Other types of Board decisions are also appealable, in those cases where they put an end to the litigation before the Board. [ Note 3.]

On the other hand, if the Board resolves a merits issue prior to final hearing, but other merits issues remain, that is, the litigation is still before the Board as a whole, the Board’s decision on the merits issue is interlocutory, rather than final, for purposes of judicial review. For example, in a case in which there is a counterclaim, if the Board grants summary judgment only as to the counterclaim, the case is not ripe for appeal until there has been a final decision with respect to the original claim; similarly, if the Board grants summary judgment only as to the original claim, the case is not ripe for appeal until there has been a final decision with respect to the counterclaim. [ Note 4.] When the Board, prior to final hearing, issues a decision resolving one or more, but not all, of the merits issues in a case before it, the Board may include in its decision the following statement: "This decision is interlocutory in nature. Appeal may be taken within two months after the entry of a final decision in the case." [ Note 5.]

When an appeal is taken from a decision of the Board, it is the court to which an appeal is taken, not the Board, that determines whether the involved decision is appealable, that is, whether the court has jurisdiction to entertain the appeal. [ Note 6.]

When a final decision of the Board is reviewed on appeal, interlocutory orders or decisions issued during the course of the proceeding before the Board may also be reviewed if they are "logically related" to the basic substantive issues in the case. [ Note 7.]

A party may obtain review of an order or decision of the Board which concerns matters of procedure (rather than the central issue or issues before the Board), and does not put an end to the litigation before the Board, by timely filing a petition to the Director. [ Note 8.] See TBMP § 905. A party may also file a request with the Board for reconsideration of such an order or decision. See TBMP § 518.

The mandamus procedure set forth in Fed. R. App. P. 21 and Fed. Cir. R. 21 may not be used as a substitute for the appeal procedure specified in Trademark Act § 21, 15 U.S.C. § 1071. [ Note 9.]

Issues not presented to or passed on by the Board, and raised for the first time on appeal to the Federal Circuit, are generally, absent exceptional circumstances, considered waived . [ Note 10.]

NOTES:

 1.   See Copelands’ Enterprises Inc. v. CNV Inc., 887 F.2d 1065, 12 USPQ2d 1562, 1564-65 (Fed. Cir. 1989) (en banc) (Federal Circuit may review only final decisions of TTAB); R.G. Barry Corp. v. Mushroom Makers, Inc., 609 F.2d 1002, 204 USPQ 195, 197 (CCPA 1979) (the word "decision" in the statute means "final decision"); Prospector Capital Partners, Inc. v. DTTM Operations LLC, 123 USPQ2d 1832, 1834-35 (TTAB 2017) (Petitioner’s request seeking judicial review of the Board’s interlocutory order is premature); Gal v. Israel Military Industries of the Ministry of Defense of the State of Israel, 1 USPQ2d 1424, 1427 (Comm’r 1986) (term "decision" has repeatedly been held to mean "final decision").

 2.   See Copelands’ Enterprises Inc. v. CNV Inc., 887 F.2d 1065, 12 USPQ2d 1562, 1565 (Fed. Cir. 1989) (en banc) (where Board granted partial summary judgment dismissing allegation of misuse of registration symbol but denied summary judgment on other potentially dispositive ownership and consent issues, appeal was premature since appealed issues did not result in disposition of case); AT&T Mobility LLC v. Thomann, 2020 USPQ2d 53785, at *12 n.70 (TTAB 2020) (finding that opposer had standing to oppose was jurisdictional, not a final adjudication of the merits, and not appealable); Prospector Capital Partners, Inc. v. DTTM Operations LLC, 123 USPQ2d 1832, 1836 (TTAB 2017) (Board’s dismissal of petition to cancel allowing petitioner to file amended petition to remedy identified defects is interlocutory in nature and non-final; Board does not have the authority to order a "transfer" of the proceeding to district court for judicial review); Zoba International Corp. v. DVD Format/LOGO Licensing Corp., 98 USPQ2d 1106, 1115 n.12 (TTAB 2011) (order denying motion for summary judgment as to one of three cancellation proceedings is interlocutory in nature and not yet appealable); Hewlett Packard v. Vudu, Inc., 92 USPQ2d 1630, 1633 n.5 (TTAB 2009) (Board granted partial summary judgment on only one class of goods and pointed out that order was interlocutory, citing Copeland’s Enterprises).

See also Jewelers Vigilance Committee Inc. v. Ullenberg Corp., 853 F.2d 888, 7 USPQ2d 1628, 1630 n.2 (Fed. Cir. 1988) (ordinarily denial of summary judgment is interlocutory and not appealable except where, as in this case, decision was a final decision of dismissal [i.e., the Board, in effect, entered judgment in favor of nonmoving party]); Parker Brothers v. Tuxedo Monopoly, Inc., 225 USPQ 1222 (TTAB 1984), appeal dismissed, 757 F.2d 254, 226 USPQ 11, 11 (Fed. Cir. 1985) (order denying summary judgment was interlocutory and thus non-final and non-appealable); Gal v. Israel Military Industries of the Ministry of Defense of the State of Israel, 1 USPQ2d 1424, 1427 (Comm’r 1986) (Director is without jurisdiction to certify an order to the Federal Circuit and Court is without jurisdiction to hear it).

 3.   See, e.g., Fred Beverages, Inc. v. Fred’s Capital Management Co., 605 F.3d 963, 94 USPQ2d 1958, 1959 (Fed. Cir. 2010) (after judgment entered granting petition to cancel sought against single class of multi-class registration, decision denying motion for leave to amend to seek cancellation against additional classes was reviewable); Hewlett-Packard Co. v. Olympus Corp., 931 F.2d 1551, 18 USPQ2d 1710, 1711 (Fed. Cir. 1991) (decision denying reconsideration of Board’s order dismissing opposition for failure to prosecute was reviewable); Person’s Co. v. Christman, 900 F.2d 1565, 14 USPQ2d 1477, 1477 (Fed. Cir. 1990) (decision granting summary judgment was reviewable); Jewelers Vigilance Committee Inc. v. Ullenberg Corp., 823 F.2d 490, 2 USPQ2d 2021 (Fed. Cir. 1987), on remand, 5 USPQ2d 1622 (TTAB 1987), rev’d, 853 F.2d 888, 7 USPQ2d 1628, 1630 n.2 (Fed. Cir. 1988) (denial of motion for summary judgment where it resulted in judgment against moving party was reviewable); Stanspec Co. v. American Chain & Cable Company, Inc., 531 F.2d 563, 189 USPQ 420, 422 (CCPA 1976) (decision granting motion to dismiss for failure to state a claim is reviewable); 3PMC, LLC v. Huggins, 115 USPQ2d 1488, 1489 (TTAB 2015) (judgment entered under Trademark Rule 2.135 for abandoning application after commencement of opposition was reviewable); Zoba International Corp. v. DVD Format/LOGO Licensing Corp., 98 USPQ2d 1106, 1115 n.11 (TTAB 2011) (order granting summary judgment as to two of three cancellation proceedings is a final decision of the Board which may be appealed); Williams v. Five Platters, Inc., 181 USPQ 409 (TTAB 1970), aff’d, 510 F.2d 963, 184 USPQ 744, 745 (CCPA 1975) (reviewing decision denying petitioner’s Fed. R. Civ. P. 60(b) motion to vacate earlier decision granting respondent’s motion for summary judgment).

 4.   See AT&T Mobility LLC v. Thomann, 2020 USPQ2d 53785, at *12 n.70 (TTAB 2020) (finding that opposer had standing to oppose was jurisdictional, not a final adjudication of the merits, and not appealable); Procter & Gamble Co. v. Sentry Chemical Co., 22 USPQ2d 1589, 1594 n.4 (TTAB 1992) (decision granting opposer’s motion for summary judgment on counterclaim and denying opposer’s motion for partial summary judgment in the opposition was not appealable). See also Copelands’ Enterprises Inc. v. CNV Inc., 887 F.2d 1065, 12 USPQ2d 1562, 1565 (Fed. Cir. 1989) (en banc) (appeal of order granting partial summary judgment was premature).

 5.   See, e.g., Institut National des Appellations d’Origine v. Brown-Forman Corp., 47 USPQ2d 1875, 1896 n.17 (TTAB 1998); Procter & Gamble Co. v. Sentry Chemical Co., 22 USPQ2d 1589, 1594 n.4 (TTAB 1992).

 6.   See R.G. Barry Corp. v. Mushroom Makers, Inc., 609 F.2d 1002, 204 USPQ 195, 197 n.3 (CCPA 1979) (following Board’s denial of motion for summary judgment on issue of res judicata, Board’s attempt to "certify" an interlocutory decision as appealable given no effect in court’s determination of whether it had jurisdiction over the appeal); Gal v. Israel Military Industries of the Ministry of Defense of the State of Israel, 1 USPQ2d 1424, 1427 (Comm’r 1986) (Director has no statutory authority to "certify" interlocutory orders of the Board for appeal). Snyder’s Lance, Inc. v. Frito Lay North America, Inc., 991 F.3d 512, 2021 USPQ2d 318, at *16 (4th Cir. 2021) ("[A] party seeking review of a subsequent Trademark Board decision may seek review in either the Federal Circuit or the district court, even if the Trademark Board’s initial decision was reviewed by the Federal Circuit."); Alltrade Inc. v. Uniweld Products Inc., 946 F.2d 622, 20 USPQ2d 1698, 1701 (9th Cir. 1991); Truck-Lite Co., LLC v. Grote Industries, Inc., 2019 USPQ2d 119235, at *9 (W.D.N.Y. 2019) (for judicial economy, court exercised its discretion and applied pendent personal jurisdiction where the anchor claims are a combination of federal and state law claims and the pendent claim is a federal claim seeking de novo review of a TTAB decision, since all of the claims derive from a common nucleus of operative facts).

 7.   See Questor Corp. v. Dan Robbins & Associates, Inc., 599 F.2d 1009, 202 USPQ 100, 104 (CCPA 1979) (denial of motion to strike deposition as untimely filed was a purely procedural issue, not a decision sufficiently related to the merits of the appealable issues); Palisades Pageants, Inc. v. Miss America Pageant, 442 F.2d 1385, 169 USPQ 790, 792 (CCPA 1971), cert. denied, 404 U.S. 938, 171 USPQ 641 (1971) (Board’s decision to deny applicant’s motion to amend description of services not logically related to the "jurisdiction-giving issues" in the case, i.e., the issues of likelihood of confusion and laches, and not reviewable).

 8.   See Palisades Pageants, Inc. v. Miss America Pageant, 442 F.2d 1385, 169 USPQ 790, 792 (CCPA 1971), cert. denied, 404 U.S. 938, 171 USPQ 641 (1971).

 9.   See Formica Corp. v. Lefkowitz, 590 F.2d 915, 200 USPQ 641, 646 (CCPA 1979) (stating that this is particularly true where the issue involves jurisdictional questions that Board is competent to decide and that are reviewable in the regular course of appeal). See also In re Tam, slip op. 16-121 unpublished (Fed. Cir. March 30, 2016) (applicant’s petition for writ of mandamus to instruct Director to publish his application denied, no clear abuse of discretion in Director’s suspension of the matter pending possible further proceedings).

 10.   Hylete LLC v. Hybrid Athletics, LLC, 931 F.3d 1170, 2019 USPQ2d 285253, at *3-4 (Fed. Cir. 2019) (party waived issue by not raising it in the Board proceeding; "[g]enerally, federal appellate courts do not consider issues ‘not passed upon below’ or entertain arguments not presented to the lower tribunal").

901.02(b)    Judgment Subject To Establishment Of Constructive Use

In an inter partes proceeding before the Board, no final judgment will be entered in favor of an applicant under Trademark Act § 1(b), 15 U.S.C. § 1051(b), before the mark is registered, if such applicant cannot prevail without establishing constructive use pursuant to Trademark Act § 7(c), 15 U.S.C. § 1057(c). [ Note 1.] Rather, in those cases where the Board finds that a § 1(b) applicant is entitled to prevail only if it establishes constructive use, the Board will enter judgment in favor of that applicant, subject to the applicant’s establishment of constructive use. [ Note 2.] If, after entry of that judgment, the § 1(b) applicant files an acceptable statement of use, and obtains a registration, thus establishing its constructive use, final judgment will be entered in behalf of the § 1(b) applicant. If, on the other hand, the § 1(b) applicant fails to establish constructive use, that is, fails to file an acceptable statement of use and obtain a registration, judgment will instead be entered in favor of the adverse party.

When the Board enters judgment in favor of a § 1(b) applicant subject to that party’s establishment of constructive use, the time for filing an appeal or commencing a civil action for review of the Board’s decision runs from the date of the entry of judgment subject to establishment of constructive use. [ Note 3.]

NOTES:

 1.   Trademark Act § 21(a)(4) and Trademark Act § 21(b)(1), 15 U.S.C. § 1071(a)(4)  and 15 U.S.C. § 1071(b)(1).

 2.   37 C.F.R. § 2.129(d). See also RxD Media, LLC v. IP Application Development LLC, 125 USPQ2d 1801, 1809 n.50, 1816 (TTAB 2018) (judgment entered in favor of applicant subject to establishment of constructive use; Board decision contingent on registration, if and when registration is issued appropriate action is taken to terminate the proceeding), aff’d, 377 F. Supp. 3d 588 (E.D. Va. 2019), aff’d, 986 F.3d 361, 2021 USPQ2d 81 (4th Cir. 2021);Kraft Group LLC v. William A. Harpole, 90 USPQ2d 1837, 1842 (TTAB 2009) (judgment in favor of applicant subject to establishment of constructive use); Larami Corp. v. Talk To Me Programs Inc., 36 USPQ2d 1840, 1844 (TTAB 1995) (constructive use provision of § 7(c) interpreted differently in Board cases involving right to register and civil actions, such as infringement action, involving a party’s right to use a mark); Zirco Corp. v. American Telephone and Telegraph Co., 21 USPQ2d 1542, 1544-45 (TTAB 1991) (judgment entered in favor of applicant subject to applicant’s establishment of constructive use).

 3.   See 37 C.F.R. § 2.129(d); RxD Media, LLC v. IP Application Development LLC, 125 USPQ2d 1801, 1816 (TTAB 2018), aff’d, 377 F. Supp. 3d 588 (E.D. Va. 2019), aff’d, 986 F.3d 361, 2021 USPQ2d 81 (4th Cir. 2021); Zirco Corp. v. American Telephone and Telegraph Co., 21 USPQ2d 1542, 1544-45 (TTAB 1991).

901.03    Motions For Relief From Final Judgment During Appeal

When a party files a Fed. R. Civ. P. 60(b) motion for relief from final judgment contemporaneously with, or during the pendency of an appeal, the Board has jurisdiction to entertain the motion. If the Board determines that the motion is to be denied, the Board will enter the order denying the motion. Any appeal of the denial may be consolidated with the appeal of the underlying order. If the Board is inclined to grant the Fed. R. Civ. P. 60(b) motion, it will issue a short memorandum so stating. The movant may then request a limited remand from the appellate court so that the Board can rule on the motion. [ Note 1.]

NOTES:

 1.   See Home Products International v. U.S., 633 F.3d 1369, 1378 n.9 (Fed. Cir. 2011); 3PMC, LLC v. Huggins, 115 USPQ2d 1488, 1489 (TTAB 2015); Pramil S.R.L. v. Farah, 93 USPQ2d 1093, 1095 (TTAB 2009).