The United States Court of Appeals for the Federal Circuit (“Federal Circuit”) delivered only seven precedential trademark opinions in 2006. This small proportion of trademark cases is consistent with the court’s docket in recent years. This year, the court addressed a range of interesting substantive issues including trade dress configuration, reverse passing off, and genericism. Notably, two of the seven precedential decisions involved plant names protected by the Plant Variety Protection Act. The Federal Circuit decided only one case in 2006 where the primary issue was procedural, rather than substantive. In that case, discussed below, the Federal Circuit sided with the Trademark Trial and Appeal Board (“the Board”), and affirmed its decision on the applicability of the res judicata doctrine. This year proved once again that appellants face a stiff challenge in convincing the Federal Circuit to overturn the Board’s findings and determinations. Of the eight Board decisions appealed to the Federal Circuit, only one was overturned. Also, the Federal Circuit affirmed rulings by a federal district court and the International Trade Commission (“ITC”). This year, the Federal Circuit affirmed in every trademark decision it published. In 2006, as in years past, the Federal Circuit has designated a good portion of its trademark decisions as not citable precedent. Four out of the total eleven trademark cases were unpublished. All four non-precedential decisions dealt with the application of the In re E.I. DuPont de Nemours & Co. factors for likelihood of confusion.
Farley, Christine Haight, Haight, Geri L. “Review of the 2006 Trademark Decisions of the Federal Circuit.” American University Law Review 56, no. 4 (February 2007): 987-1022.