CAFC Affirms TTAB's HERE COMES THE JUDGE Section 2(d) Decision

Michael P. Chisena struck out again in this appeal from the Board's April 2023 decision [TTABlogged here] sustaining an opposition to his applications to register the word marks ALL RISE and HERE COMES THE JUDGE and the design mark shown below, for "clothing, namely, t-shirts, shirts, shorts, pants, sweatshirts, sweatpants, jackets, jerseys, athletic uniforms, and caps." The Board found the proposed marks to be confusingly similar to the opposers' previously used marks for overlapping goods, and so it sustained the opposition under Section 2(d). The CAFC concluded that substantial evidence supported the Board's finding of priority, and it rejected Chisena's claim that the word marks fail to function as source indicators. Chisena v. Major League Baseball Players Association, Aaron Judge, Appeal No. 23-2073 (Fed. Cir. January 8, 2026) [not precedential].

The Board first noted that Chisena, as a pro se litigant, "is afforded a liberal reading of his filings." However, testimony and documents considered by the Board established that "multiple officially licensed products bearing Justice's personal indicia and judicial phrases or symbols" were available before Chisena's first used date (his filing dates).

Chisena argued that the opposers did not adequately "plead" their marks, but the court concluded that Chisena was given "fair notice of the claimed marks and the basis of [their] priority claims." He contended that the marks ALL RISE and HERE COME THE JUDGE are not inherently distinctive and therefore ineligible for protection, but the court agreed with the Board that the marks are distinctive: they are arbitrary and are not merely surnames or "nicknames."

Finally, Chisena maintained that the word marks fail to function as trademarks. However, opposer submitted substantial evidence [media articles, the formation of "Judge's Chambers" in right field at Yankee Stadium, and "judicially-themed" apparel indicating a connection with Judge] that the marks served as source indicators, "as customers who would encounter those marks on apparel would associate them with Judge."

And so, the CAFC upheld the Board's decision.

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TTABlogger comment: Bronx bummer?

Text Copyright John L. Welch 2025.