Federal Circuit Affirms TTAB Refusal to Register Trademarks Invoking MLB’s Aaron Judge in Priority Dispute

The U.S. Court of Appeals for the Federal Circuit (CAFC) on Thursday affirmed a decision of the Trademark Trial and Appeal Board (TTAB) that refused to register trademarks relating  to New York Yankees outfielder Aaron Judge. The court found that the marks ALL RISE and HERE COMES THE JUDGE were already associated with Judge and that the applicant, Michael P. Chisena could not establish priority. The case was decided by Circuit Judges Lourie and Hughes, along with District Judge Beth Labson Freeman of the Northern District of California, sitting by designation.

Chisena filed three intent-to-use applications seeking to register the phrases ALL RISE and HERE COMES THE JUDGE as standard character marks, along with a design mark featuring a baseball diamond, for use on clothing, including t-shirts, jerseys, and caps. The Major League Baseball Players Association (MLBPA) and Aaron Judge filed Notices of Opposition, arguing that Chisena’s proposed marks would likely be confused with their common law trademarks. The TTAB consolidated the three opposition proceedings and ultimately sided with the MLBPA and Judge, finding that they had established priority of use and that the marks were distinctive.

The TTAB found that the baseball community had played on Judge’s surname by using the phrases “All rise!” and “Here comes the Judge.” The Board pointed to testimony and documentation concerning multiple officially licensed products bearing Judge’s personal indicia and judicial phrases or symbols, all of which came before Chisena’s constructive use filing dates for the character marks on July 14, 2017, and October 12, 2017, for the design mark.

Before the Federal Circuit, Chisena argued that the TTAB had erred in its priority determination. However, the court found that the Board’s decision was supported by substantial evidence as the MLBPA and Judge had provided evidence of officially licensed products bearing Judge’s name and related phrases that predated Chisena’s filing dates. The court also rejected Chisena’s argument that the marks were not inherently distinctive, finding that “ALL RISE and HERE COMES THE JUDGE are arbitrary because they do not describe the apparel on which they appear.”

The Federal Circuit also found that the marks functioned as trademarks to identify Judge as the source of the products. The court pointed to evidence of media articles referring to Judge using the phrase ALL RISE, the formation of a “Judge’s Chambers” section in right the field of Yankee Stadium, and “judicially-themed” apparel indicating a connection with Judge. The court concluded that the TTAB had correctly determined that the marks were not merely ornamental but served as source identifiers.

Chisena, who represented himself in the appeal, also argued that the MLBPA and Judge had not adequately pleaded their marks in the Notices of Opposition. The court found this argument unpersuasive, noting that the pleadings afforded Chisena fair notice of the claimed marks and the basis of the priority claims.

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