By Lindsey Rothrock, Taft Stettinius & Hollister LLP
On Wednesday, Sept. 9, 2020, the House Judiciary Committee passed by voice vote the Trademark Modernization Act, which was introduced in March 2020. Among other things, the Act would codify existing procedures that permit third parties to submit evidence of fraud during trademark examination, and it would create ex parte procedures to cancel registrations for marks that have not been used.
Before being passed, the bill was revised to include a section making it explicit that the authority of the director of the U.S. Patent and Trademark Office (USPTO) includes the authority to reconsider, and modify or set aside, a decision of the Trademark Trial and Appeal Board (TTAB). Such revision was made in the wake of the Federal Circuit’s decision in Arthrex v. Smith & Nephew, in which the court held that Patent Trial and Appeal Board judges are unconstitutionally appointed because the USPTO director does not have sufficient control over them. This revision to the Act appears to be an effort to fend off a similar decision with respect to TTAB judges. Read more.
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