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Trademark Trial And Appeal Board, Meet The Constitution, David S. Welkowitz

Fordham Intellectual Property, Media and Entertainment Law Journal

For many years, the Trademark Trial and Appeal Board has re-fused 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 …