In 2016, Prospector Capital Partners sought to cancel a number of Donald Trump’s trademark registrations (one of the design marks is shown to the right) for TRUMP in connection with golf courses, online retail store services featuring golf accessories, PACs, limo services, gambling services, lotion dispensers, jewelry, dress shirts, and various other goods and services. Prospector asserted that Trump had abandoned the trademark by failing to use them. Prospector did not quite set its claim correctly, however, and Trump was able to dismiss the cancellation on a technicality. The Trademark Trial and Appeal Board hearing the case granted Prospector a 20-day period to fix its error, however.
Rather than filing an amended petition to cancel, Prospector filed a motion to disqualify the entire Board on the basis that President Trump holds an interest in the trademark registrations and the judges are all appointed by the Secretary of Commerce, who serves under the President. Prospector suggested that, since Trump essentially has the ability to fire all of the judges, they could not be impartial.
The Board flatly rejected this suggestion.
First, it noted that the laws governing disqualifications of judges only apply to judges on courts. The TTAB judges are administrative judges on an administrative panel, wholly within the US Patent and Trademark Office. They are not judges on a court, and the laws pertaining to such judges therefore do not apply to them.
Second, it stated that government procedures are at least presumed to operate regularly and without improper motive.
Third, the Board countered that there were no facts indicating that the Board might be swayed by Trump’s ability to fire.
Fourth, the Board found that there was no statutory limitation in proceedings that it was incompetent to handle. Thus, the Board has the authority to determine rights of registration regardless of the owner of the registration. If such limitations were in place, the Board offered, whole classes of applicants, such as both high-level and low-level government executives, might find themselves without a forum to adjudicate their rights, which is “absurd.”
Finally, the Board highlighted the option Prospector has already: it can always appeal the Board’s decision in federal court. We’ll see if that happens….