Wednesday, May 03, 2017

Recommended Reading: Prof. David S. Welkowitz, "Trademark Trial and Appeal Board, Meet the Constitution"

Professor David Welkowitz of Whittier Law School questions the TTAB's practice of refusing to address constitutional issues, in his article, "Trademark Trial and Appeal Board, Meet the Constitution," Fordham Intellectual Property, Media and Entertainment Law Journal, Vol. 27, No. 3 (2017). [pdf here].


For many years, the Trademark Trial and Appeal Board has refused to address constitutional claims raised in the course of registration or cancellation proceedings. A recent example involves the Washington Redskins trademark, which is the subject of a cancellation proceeding now before a U.S. Court of Appeals. The Board’s refusal to address constitutional issues rests on the assumption that the Board lacks the authority to make constitutional decisions. That may seem odd, given the fact that the Board is an arm of the federal government, and its members are bound to uphold the Constitution. This Article examines the basis of the Board’s claim of incapacity. Although the Board’s claim is not with-out precedent, it is argued that the better reading of current law is that the Board does have the capacity to address constitutional claims and that it should do so. The Article further examines ways in which the Board can decide constitutional issues without overstepping its bounds as an administrative agency. In particular, the Article examines the possible use of a familiar constitutional principle of avoidance as a means of allowing the Board to incorporate constitutional principles into its decision-making without having to rule on the constitutionality of the provisions of the federal trademark statute.

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Text Copyright John L. Welch 2017.


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