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2015 TTAB Results Show Appeal Victories on the Rise

Posted Friday, February 5, 2016 by Daniel MIlls

Thanks to the hard work of TTAB watcher extraordinaire John L. Welch, we have some idea that 2015 was a better year for appeals at the TTAB when it comes to Section 2(d) refusals for likelihood-of-confusion and Section 2(e)(1) refusals for merely descriptive. You can find his post here.

Mr. Welch determined that of the 223 Section 2(d) refusals, 188 were affirmed and 35 reversed, making the reversal rate 15%. While that sounds paltry, that is a 36% increase over last year’s rate of 11%. Of the 97 Section 2(e)(1) refusals, 84 were affirmed and 13 reversed, making the reversal rate 14%.

The increase in reversals brings 2015 back in to the historical average of the last few years. The outcome of an appeal will be based on the set of facts, circumstance, and the relative strength of the marks in question. One way to interpret these numbers is to say that the examining attorneys at the PTO get it right a good majority of the time. Another way to look at it is that the TTAB and the PTO read from the same play book, and it is no surprise that they agree so often. As with any statistical presentation, the numbers don’t account for a lot of factors. Primarily, the aspect of picking the right fight cannot be quantified. Some appeals should never be filed and many good battles are never waged, so the percentage in any year could be affected by the “quality” of the cases.

I come out on the side that says the examiners do a good job. I believe this mainly out of personal experience and that fact the rules, procedures, decisions, and TMEP, are all available for practitioners to learn from, so we all have access to the same playbook. I work hard to counsel clients honestly about the strength of their marks, and their chances of success in overcoming refusals. Picking the right mark makes picking the right battle easier and helps me keep my personal reversal rate much better than average.

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