Divert All Trademark Appeals to the Federal Circuit? We Think Not

Copyright and Trademark and Intellectual Property

Article Snapshot


J. Thomas McCarthy and Dina Roumiantseva


The Trademark Reporter, Vol. 105, No. 5, pp. 1275-1283, 2015


Some propose that all appeals of federal trademark and false advertising cases from district courts be sent to the Federal Circuit. But courts in other regions have as much or more expertise in trademark law as does the Federal Circuit.

Policy Relevance

Trademark law does not suffer from inconsistent decisions. No change in the way trademark appeals are handled is necessary.

Main Points

  • Some have proposed that federal law revised so that Lanham Act trademark and false advertising cases from district courts across the United States will be sent to the Court of Appeals for the Federal Circuit instead of the regional circuit courts.
  • The proposed diversion is not a good idea and should never be implemented.
  • Advocates of the proposal claim that trademark law would benefit from the consistency that a single appeals court could provide and that the Federal Circuit has exceptional expertise in trademark law.
  • In 1982, all patent appeals were diverted to the Federal Circuit, due to many conflicts and extreme inconsistency between cases decided by different regional appellate courts.
    • Some critics doubt that the Federal Circuit has succeeded in making patent law consistent.
  • Trademark law does not suffer from conflict and inconsistency between decisions from different Circuit Courts. Each region has its own test for likelihood of consumer confusion, but these tests differ only in detail, not in essence.
  • Some regional circuits have greater experience with trademark law than does the Federal Circuit.
    • From 2010-2015, the Ninth Circuit handled more trademark appeals than any other court, and several other circuits handled about as many as the Federal Circuit.
    • The Federal Circuit has no particular expertise in trademark or false advertising cases.
  • Many trademark and false advertising cases involve questions of local consumer perception better handled by local courts.


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