Recommended Reading: Zerounian and Thiele, "An Introduction to the Trademark Moderization Act"

I recommend this article by Raffi Zerounian and Justin Thiele of Hanson Bridgett, LLP, from The Trademark Laywer magazine (Issue 2 2021). It provides a very good summary of the provisions of the Trademark Modernization Act of 2020.

Conclusion

The TMA provides a number of new tools in the trademark practitioner's toolbox, especially when faced with the task of clearing the federal register of blocking (or potentially blocking) but unused marks. Although the TMA's reforms are largely limited to these areas, it is a promising step in creating a more efficient register. The long lead time before formal implementaion in 2021, gives ample time for the USPTO to promulgate rules under the TMA. Accordingly, much remains to be seen at the practical level of the effects of the TMA.

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TTABlogger comment: Note that on June 21st, the Supreme Court ruled in United States v. Arthrex, Inc. that because Administrative Patent Judges are inferior officers appointed by the Secretary of Commerce, their exercise of "unreviewable authority" to decide inter partes review cases is in violation of the Appointments Clause of the Constitution. The Court further ruled that, in order to remedy the situation, the Director of the U.S. Patent and Trademark Office now has the discretion to review those decisions. 

As to TTAB judges, the authors opine that "Congress' efforts [in the TMA] help to close any controversy and likely will head off any challenges to the TTAB structure."

Text Copyright John L. Welch 2021.

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