Sermon from the Bench: TTAB May Not “Altar” Course in Silence

by Dennis Crouch

Universal Life Church Monastery v. American Marriage Ministries (Fed. Cir. 2023) (non-precedential)

The case involves Universal Life Church Monastery’s (ULC Monastery) trademark application for the mark GET ORDAINED covering both online retail store services (Class 35) and ecclesiastical services (Class 45) like ordaining ministers. American Marriage Ministries (AMM) filed an opposition asserting that the mark was merely descriptive and failed to function as a mark for both classes of services. However, AMM’s briefing focused solely on the ecclesiastical services and did not present any argument about the online retail store services.

Despite the failure of briefing, the TTAB sustained AMM’s opposition as to both classes of services without addressing ULC Monastery’s argument that AMM waived its claims regarding the online retail services by not briefing them.  On appeal, the Federal Circuit has vacated and remanded, holding that the TTAB acted arbitrarily and capriciously by failing to explain why it did not deem certain unargued claims to be waived.

The TTAB has a set of current practices and procedures set out in its Trademark Trial and Appeal Board Manual of Procedure  (TBMP).  The TBMP provides that ‘[i]f a party fails to reference a pleaded claim or affirmative defense in its brief, the Board will deem the claim or affirmative defense to have been waived.”  In this case, the Board decided the unargued claim without identifying its reasoning.  On appeal, the Federal Circuit held this was arbitrary and capricious:

When the Board ‘departs from [its] established precedent without a reasoned explanation, its decision will be vacated as arbitrary and capricious.’ … The Board may not depart from its prior procedures ‘sub silentio.’

Opinion at 7. On remand, the TTAB will need to explain its waiver decision.  This non-precedential decision confirms that the TTAB must follow its own rules and procedures regarding waiver.

This decision underscores the Federal Circuit’s continued scrutiny of USPTO tribunals’ reasoning and explanations. Yet at the same time, the Federal Circuit frequently issues Rule 36 judgments affirming lower tribunal decisions without any opinion or reasoning. This dichotomy highlights a double standard — while the Federal Circuit demands detailed explanations from the USPTO, the court does not hold itself to that same standard. The court could improve perception of fairness by limiting no-opinion affirmances or providing short explanations of basis. Until then, the court’s warnings about silent departure from past practice ring hollow.

18 thoughts on “Sermon from the Bench: TTAB May Not “Altar” Course in Silence

  1. 3

    I’m struggling mightily to perceive the double standard. The Board’s rule provides that it treats unbriefed arguments as waived, and CAFC held it to the rule’s provision. CAFC’s (or, rather, FRAP) Rule 36 provides for judgments without opinion, and CAFC issues judgments pursuant to that Rule. So how is that a double standard exactly?

    1. 3.1

      It comes down to how you define the standard. You’ve defined it as following the established rules while Dennis is talking about issuing an opinion with or without an explanation. Both are reasonable in this particular situation.

      1. 3.1.1

        Whether or not issuing an opinion without an explanation appears to be the pivot point that Prof. Crouch is invoking with drawing the parallel to Rule 36 — and given the well-known position of the good professor that such are NOT reasonable, the inclusion of the reference to Rule 36 mayhap provides the insinuation that THIS CASE is likewise not reasonable.

      2. 3.1.2

        I don’t get it. The present case involving the TTAB had nothing to do with issuing an opinion or not. So apples versus oranges, and still no double standard in sight.

    2. 3.2

      Hi Koto — I think it is pretty simple.

      The TTAB made an implicit decision (no waiver) without explaining why. The Federal Circuit regularly does this in its cases by issuing R.36 judgments without opinion.

      1. 3.2.1

        Of all the hills to perish on, this has to be up there in terms of weirdness, but you (all) be you I guess.


          Meh, less “perish,” and — as stated — more alignment with an item that Prof. Crouch HAS invested a lot of his ‘capital.’


            The other thing is making it an issue with CAFC, as opposed to FRAP 36 itself. CAFC is just following the Rule, as they’re perfectly entitled to do. Maybe CAFC uses it more than other courts, but last I checked, the Rule does not include a numerical quota for how many times it can be used.



              The reason why you are confused is because you have not been following along (with the good Professor’s position on CAFC use of Rule 36) — it is being proposed that they are NOT properly following that Rule — given countervailing duties of the CAFC.

              Other courts are just not so constrained.

              This IS the point of contention.

  2. 2

    “So as we say, not as we do.”


    (p.s. Kings and Queens don’t have to explain themselves. Never have. Never will.)


          You mean that you have been outed? Teaching in GA. and claiming you have a Patent Registration like your regional explanation are a stretch.
          On another note my explanation of how Kramer v. Kramer continued is as easy as following the bouncing ball. Whether you involved yourselves because you were lied to, or because you wanted what is mine, that is a You problem. You started that on July 18,1995. Then as excuses seemed to soften you greed you went with that. As you now realize Kramer and Kramer are two sides of a 3 sided story. My story was quashed by greed regarding Kramer v. Kramer. As much evidence as you continually stole including my Patent Grant’s that you altered so much that stealing them was also necessary. Sadly for you I sent everything necessary to prove that it was an inside job thst began with a phone call to Tamai on July 18, 1995 exposed by a greedy guy to be a Hero, but who lost his right to a registration. Moatz then tells me I can make it too. I dare say the Constitution says who ever the inventor is, does not say an inside job that went all the way to the top, and to the USPTO does not negate the Inventors rights to a Patent, or due process.
          Too bad you listened to dysfunction by the Kramers’ only to listen to your own dysfunction.
          I am sure AL baby being treated like a leper is as visible as it ever was at the funeral yesterday. Can you imagine him as a President ..? Yes The Donald was an example. The only difference is The Donald cut to the chase and went straight to the enemy.


            Seriously, how can anyone say The Donald is a Republican. To hack with in name only. He thought Hilly was to strong, only to have a nose of wax destroy her chances. History is defined by those that stick their noses where they don’t belong. I know AL baby lost in FL because he got caught exposing the secret. Any where but there may have turned out differently. But, it could have been worse.


              Aug 3, 1996 when Ron Broen died,was right around the same time Gore’s emails back and forth to the USPTO were reported on. I dare say JOHN DO was on the other line. I’ll have to check my Brain-O-Dex. There was so much fake news about how and why he died, it was easy to quash what GORE was doing.
              Don’t any of you wonder why ARMY MAN, and former VP Al Gore was not at the Funeral for Rosalyn? I’m sure he was not invited. It seems DUMBER is way DUMBER than who they label (Me) DUMB. As I give out my Popeye laugh Ghaghaghaghagha.

  3. 1

    The CAFC has ‘learned’ from the US Supreme Court (after a number of fire-hosing of the simians in the cage for daring to climb the ladder in the center of the cage – the ladder under the hanging bananas).

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