The Trademark Reporter’s 2020 “Annual Review of U.S. Trademark Cases”

In his Introduction, Ted Davis observes that although the Supreme Court’s rulings in Matal v. Tam and Iancu v. Brunetti garnered the headlines, the Court’s impending decisions in Romag and Booking.com and its recent holdings in Mission Product and Lucky Brand are likely to be of greater long-term significance to trademark practitioners. As to the lower courts, Ted notes that, in contrast to the district court and appellate court rulings in Booking.com, other courts and the TTAB found many proposed marks to be generic. Ted also points out, with some dismay, the increasingly frequent application of the “wholly extrastatutory” failure-to-function refusal in TTAB case law. It makes one wonder whether the Board is narrowing the goal posts for registration, or whether the Board is dealing with over-eager applicants driven by what seems to be a common belief that anyone can “trademark” anything.