September 30, 2021

In Piano Factory Group, Inc. v. Schiedmayer Celesta GmbH, --F.4th--, 2021 WL 3889834 (Fed. Cir. Sept. 1, 2021), the appellate panel held that the appointment of TTAB Administrative Trademark Judges (“ATJs”) does not violate the Appointments Clause.  The panel determined that, unlike the factual and legal setting underlying the Supreme Court’s Arthrex decision, current trademark statutes—the Trademark Modernization Act of 2020 (“TMA”) in particular—explicitly confirm the Director’s authority to review the TTAB’s decisions and clearly render ATJs “inferior officers,” and thus their appointment is lawful. Id. at **4-7.  The panel further determined that ATJs were properly appointed at the time the appealed TTAB decisions issued in 2019, before enactment of the TMA, and that the TMA confirms that the Director’s authority to review TTAB decisions before and after the legislation is the same. Id.  Notably, the panel highlighted the Supreme Court’s statement in Arthrex that “review [of the PTAB’s decisions] by the Director would follow the almost-universal model of adjudication in the Executive Branch…and aligns the PTAB with the other adjudicative body in the PTO, the Trademark Trial and Appeal Board.” Id. at *4 (quoting United States v. Arthrex, 141 S. Ct. 1970, 1987 (2021)) (emphasis in original).