TTAB declines to disqualify itself from proceedings concerning TRUMP marks

United States of America
  • Petitioner filed application to cancel TRUMP marks and disqualify TTAB from the hearing, claiming it might act to protect the president’s interests
  • TTAB found that the petitioner failed to provide evidence that it could not make unbiased decisions and therefore denied motion
  • It appears unlikely that the TTAB will be inclined to disqualify itself from a proceeding without clear evidence

The Trademark Trial and Appeal Board (TTAB) recently issued a precedential decision clarifying the circumstances in which it will disqualify itself from cancellation proceedings. President Trump owns an interest in DTTM Operations LLC (the respondent), which owns a number of registrations for TRUMP-formative marks in connection with various goods and services (the TRUMP registrations). The decision in Prospector Capital Partners, Inc v DTTM Operations LLC, denied the petitioner’s motion for the TTAB to disqualify itself from hearing the cancellation proceedings because the petitioner had failed to provide evidence for its assertion that the TTAB lacked the independence necessary to make unbiased decisions in the proceedings.

Prospector Capital Partners, Inc (the petitioner), which owned an application for TRUMP YOUR COMPETITION, filed a petition to cancel the TRUMP registrations on the grounds of abandonment. Instead of filing an answer, the respondent filed a motion to dismiss for failure to state a claim on the grounds that the petitioner did not properly allege its standing or its abandonment claims. The TTAB granted the respondent’s motion, but allowed the petitioner 20 days to serve an amended petition.

Rather than file an amended petition, the petitioner filed a motion to, among other things, disqualify the TTAB from hearing the proceeding. In its motion, the petitioner argued that the TTAB was “incapable of fairly adjudicating the issues” because TTAB members are appointed by the Secretary of Commerce who “has the authority to hire or fire” the TTAB members and who, in turn, serves at the pleasure of the president (who had a personal interest in the matter). The petitioner therefore alleged that the TTAB might act to protect the president’s interests because he could remove the commerce secretary, who in turn had the power to remove TTAB members. Relying on the requirement that “any justice, judge, or magistrate judge of the United States” disqualify himself or herself from a proceeding in which his or her impartiality “might reasonably be questioned” (28 USC Section 455) the petitioner argued that the TTAB was required to recuse itself because the its impartiality could reasonably be questioned in proceedings where the president has an interest.

The TTAB denied the petitioner’s motion, first noting that it is not a ‘court’ as defined by 28 USC Section 451, and therefore did not fall within the ambit of the 28 USC Section 455 disqualification requirement. The TTAB held that in the absence of clear evidence to the contrary, a presumption of regularity is attached to its procedures and orders. Because the petitioner provided no evidence that the president or secretary of commerce has, or would in the future, assert improper influence, the TTAB concluded that the motion to disqualify lacked merit.

The TTAB continued by noting that nothing in the Trademark Act relieved the TTAB of its obligation to determine rights of registration because a party is directly or indirectly connected with the US government. The TTAB reasoned that if this were the case there would be “entire categories of applications and registrations (those owned by, or connected to, the United States government or any of its officers or agencies) for which the [TTAB] would, per se, be unable to fulfill its statutory obligations. Such a state of affairs would be absurd”. The TTAB then concluded that, to the extent the petitioner was dissatisfied with whatever final determination the TTAB reached, the petitioner would still have the right to seek judicial review in an Article III court.

Based on the tenor of this decision, it appears unlikely that the TTAB will be inclined to disqualify itself from a proceeding where a government official has an interest, regardless of whether that interest is official or personal, absent clear evidence of an attempt to assert improper influence. Parties seeking disqualification should bear this in mind before moving that the TTAB recuse itself.

Nicholas Lawson, Arent Fox LLP, Washington DC

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