If the U.S Patent and Trademark Office (the
"PTO") refuses registration of your mark, you may appeal
to the Federal Circuit for review or begin a proceeding in district
court. One of these routes is likely to be more expensive than the
other. The recent case of Shammas v Focarino, Case No.
14-1191, decided by the U.S. Court of Appeals for the Fourth
Circuit, illustrates why.
Mr. Shammas sought to register the mark PROBIOTIC for fertilizer
products, but the PTO refused registration on the grounds that the
term is generic and descriptive. The Trademark Trial and Appeal
Board (the "TTAB") affirmed. Mr. Shammas began a
proceeding in district court instead of appealing the decision to
the Federal Circuit. Because no adverse party opposed his
application, he had to name the PTO director as the defendant. This
was a "de novo" proceeding, which means the
district court rules on the evidence and the law without deferring
to the TTAB decision. The district court granted the
