USPTO 2021 Performance and Accountability Report

The USPTO's 2021 Performance and Accountability Report is chock full of information and data regarding USPTO operations. (pdf here). The report is slightly more than 250 pages long, so I will hit a few of the highlights regarding our favorite tribunal, the TTAB.

Under the heading "CASE LAW DEVELOPMENTS: RECENT DECISIONS" (p. 21):

[T]he constitutionality of the appointment of the TTAB’s ATJs was also called into question in Piano Factory Group v. Schiedmayer Celesta GmbH. Guided by the Supreme Court’s decision in Arthrex, the Federal Circuit held that the Director’s broad supervisory authority over TTAB decisions, together with the absence of any statutory limits on the composition of TTAB panels, indicates that the ATJs are inferior officers under the Appointments Clause and thus are not required to have been appointed by the President and confirmed by the Senate. The court also noted that the TMA further confirmed the Director’s previously implicit authority to exercise supervisory authority by rehearing TTAB decisions.

At pages 91-92, under the heading, "OBJECTIVE 4: ENHANCE OPERATIONS OF THE TRADEMARK TRIAL AND APPEAL BOARD":

The TTAB evaluated the results of its Expedited Cancellation Pilot Program, including the comments of those with whom the Board conferenced in regard to pilot cases. The pilot’s objective was to explore the utility of various means for expediting cancellation proceedings challenging the registration of marks asserted to have been abandoned or not used when necessary to support registration. An analysis of the pilot program revealed the following:

-- Included in 34% of cancellation proceedings, abandonment was the most common claim in the proceedings.
-- Included in 27% of the proceedings, likelihood of confusion was the second most common claim.
-- The default judgment rate for all cancellation proceedings was 44%.
-- The default judgment rate for cancellation proceedings that included a nonuse or abandonment claim was 49%.
-- The default judgment rate for proceedings in which abandonment was the only claim was 60%.

The Expedited Cancellation Pilot Program confirmed that TTAB cancellation proceedings in general provide an effective means for challenging registered marks that are not in use and that may prevent others from registering their marks. Cancellation proceedings play an important part in ensuring the accuracy and integrity of the Trademark Register. With a high default judgment rate overall and a much higher default judgment rate where the only claim is abandonment, cancellation proceedings are efficient tools for removing registrations for marks that are not in use and have been abandoned.

If you want to keep up with the latest developments on the trademark side of the USPTO, you might attend the quarterly meetings of the Trademark Public Advisory Committee.

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Text Copyright John L. Welch 2022.