Judge James Walsh Retires From TTAB
On Friday, January 28, 2010, Judge James Walsh retired from the Trademark Trial Appeal Board. He served on the Board since 2005, after many years at the USPTO and a stint in private practice. Judge Walsh's departure brings the number of TTAB judges to seventeen.
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posted by John L. Welch @ 2/02/2011
4 comments
4 Comments:
With newly-appointed Chief ATJ Rogers' assumption of his administrative duties, only 16 judges are available for writing final decisions.
Well, Judge Rogers wasn't writing any opinions while Acting Chief Judge anyway.
Given the small number of written decisions, there is no need for more than 8 or so. Moreover, given the recent rules changes making this practice more like District Court (and more expensive and time consuming) with no relief other than denying a registration, the TTAB is making itself less relevant. And the recent cases which appear to make an analysis on market conditions like a federal court would (but without the benefit of a record or live witnesses), make the TTAB a forum that is losing its attractiveness. If you need to put in surveys and market experts and reams of evidence to avoid the Board maling its own determinations based on its view of the world, you probably want to bring a lawsuit and ask for an injunction.
Recent cases on "fame" are illustrative of a non real world view as well. Parties having their mounds of evidence picked apart to show it doesn't prove fame. In a district court, one witness with a survey or a lot of evidence would get about 10 minutes when the judge would say, "you've made your point counselor, your client's mark is famous, now move on". Not in the TTAB.
If they wonder why their docket is shrunk, it isn't because people aren't filing trademark applications.
"Anonymous", a witness with a proper foundation and proper exhibits that are properly produced during discovery could testify about the "fame" of mark in a matter of minutes. Surveys and market experts are hardly necessary in ordinary cases. Plaintiffs who plead fame and chose the TTAB as their forum, should not be let off the hook without real and proper evidence. And they should not be allowed to ignore the rules of evidence. Their lawyers would not let a Defendant get away with bending or ignoring the rules, would they?
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