In addition to the Trademark Act of 1946, as amended, and the Trademark Rules of Practice, examination is also governed by precedential decisions in prior cases. See TBMP §§101.01, 101.03. These decisions include those from the U.S. Supreme Court (Supreme Court) and precedential decisions from the Court of Appeals for the Federal Circuit (Federal Circuit) (which determines appeals from decisions of the Trademark Trial and Appeal Board (Board)), the Court of Customs and Patent Appeals (the predecessor of the Federal Circuit), the Board, and the Director of the United States Patent and Trademark Office (formerly the Commissioner of Patents and Trademarks) (Director) (who determines petitions on examination procedural matters, among other things). See TBMP §101.03.

Decisions of the Supreme Court, the Federal Circuit or its predecessor court, the Board, and the Director appear in the Bloomberg Law database as the United States Patents Quarterly (USPQ) and may also be found in LexisNexis Corporation’s LEXIS/NEXIS legal database and in the Intellectual Property Library of ThomsonReuters Corporation’s WESTLAW database. Recent, and a certain number of older, final Board decisions are available by accessing the TTAB Reading Room electronic database at https://ttab-reading-room.uspto.gov/efoia/efoia-ui/#/search/decisions on the USPTO website. In addition, docket information and images of Board files may be viewed by accessing TTABVUE at https://ttabvue.uspto.gov/ttabvue/.

Precedential Court Decisions. When citing to court decisions, citation should be to the appropriate reporter, such as the Federal Reporter or the Federal Supplement, preferably with the pinpoint cite or specific page number(s) within the decision. Parallel citations are permitted.

Precedential Board Decisions. Decisions designated by the Board as "Citable as Precedent," "Precedent of the Board," "Precedent of the TTAB," or "for publication in full" are citable as precedent. TBMP §101.03.

Citation to precedential Board decisions may be to the USPQ, LEXIS/NEXIS, or Westlaw databases. If the submitting party does not have access to legal research databases, citation may be made to a USPTO public electronic database containing the decision (e.g., TTABVUE), indicating the relevant docket entry and page. Citations should include the serial number or registration number for ex parte appeal cases and the proceeding number for trial cases. Parallel citations are permitted.

Non-precedential Board Decisions. Prior to January 23, 2007, the Board's policy was that its decisions not designated as precedential should not be cited and, if cited, were to be disregarded. See, e.g., In re A La Vieille Russie Inc., Ser. No. 75609153, 2001 TTAB LEXIS 541, at *3 n.2 (2001); In re Polo Int’l Inc., Ser. No. 74729974, 1999 TTAB LEXIS 59, at *6 n.3 (1999); Gen. Mills Inc. v. Health Valley Foods, Opp. No. 76303, 1992 TTAB LEXIS 37, at *13 n.9 (1992). Since that date, the Board has permitted citation to any Board decision. TBMP §§101.03, 1203.02(f); see generally Citation of Ops. to the Trademark Trial & Appeal Bd. , OG Notice (Jan. 23, 2007). Although Board decisions designated as not precedential are not binding upon the Board, they may be cited and considered for whatever persuasive value they might have. DC Comics v. Cellular Nerd LLC, Opp. No. 91246950, 2022 TTAB LEXIS 453, at *8-9 (2022) (citing TBMP §101.03); In re UST Glob. (Sing.) Pte. Ltd., Ser. No. 87657822, 2020 TTAB LEXIS 19, at *21 n.23 (2020) (citing In re Soc’y of Health & Physical Educators, Ser. No. 87107590, 2018 TTAB LEXIS 282, at *10 n.7 (2018)); TBMP §§101.03, 1203.02(f). However, the Board does not encourage the practice of citing non-precedential decisions; citing such decisions should be done judiciously and rarely. DC Comics v. Cellular Nerd LLC, 2022 TTAB LEXIS 453, at *9, *11; see TBMP §§101.03, 1203.02(f).

[A] Board opinion or decision not designated as precedent involves application by a panel of existing law and policy to only the factual record and issues presented in an individual case, and is not controlling legal authority for Board attorneys and judges. Such opinions or decisions do not announce new interpretations of law or agency policy, and the public may not rely upon them as controlling legal authority in other cases.

DC Comics v. Cellular Nerd LLC, 2022 TTAB LEXIS 453, at *10. "Unless an opinion or decision is marked as a precedent, it is not a precedent of the Board." Id. ("[Non-precedential] opinions . . . are often fact driven by the specific facts present in the appeal before the Board. Unless the facts in a succeeding case are 'on all fours' with or substantially the same as the facts in the preceding appeal, generally, the opinion in the preceding [non-precedential] appeal decision may not be controlling in a succeeding appeal." (quoting Ex parte Holt, No. 90-1311, 1991 Pat. App. LEXIS 2, at *7-8 (B.P.A.I. 1991))).

When citing to a non-precedential Board decision in an Office action, if the decision does not appear in the USPTO’s public electronic databases, the examining attorney should append the decision to the Office action; otherwise, citation may be to TTABVUE by docket entry and page number. When citing to a non-precedential Board decision in a brief, the examining attorney should append the decision to the brief, if it is not already in the record. TBMP §101.03(a)(2). Non-precedential decisions referenced must be clearly identified as non-precedential.

Precedential Decisions and Orders of the Director (previously Commissioner). Decisions and orders designated by the Director (or another USPTO official acting under the Director’s authority) as "Citable as Precedent" and/or that have been reported in the USPQ are citable as precedent.

Citation to precedential Director decisions and orders may be to the USPQ, LEXIS/NEXIS, or Westlaw databases. The serial number, registration number, or proceeding number should be included. If the submitting party does not have any access to legal research databases, citation may be made to a USPTO public electronic database containing the decision (e.g., the Trademark Status and Document Retrieval database (TSDR)), indicating the relevant docket entry and page. Parallel citations are permitted.

Non-precedential Decisions and Orders of the Director (previously Commissioner). Non-precedential Director decisions and orders may be cited for whatever persuasive value they may have. Cf. TBMP §§101.03, 1203.02(f). However, this practice is not encouraged and citing such decisions should be done judiciously and rarely. Id. Citation to non-precedential Director decisions and orders may be to the LEXIS/NEXIS or Westlaw databases, or to the USPTO’s public electronic database, indicating the relevant dated entry and page. The serial number, registration number, or proceeding number should be included, if available. If the decision or order does not appear in LEXIS/NEXIS, Westlaw, or the USPTO’s public electronic database, the examining attorney should append the decision or order to the Office action or brief, if it is not already in the record. Non-precedential decisions or orders referenced must be clearly identified as non-precedential.

Trademark Official Gazette (TMOG) Director’s Orders and Notices. The Director or another USPTO official acting under the Director’s authority occasionally publishes in the TMOG an order or notice regarding a particular USPTO policy, practice, procedure, or other such matter of interest to the public. TBMP §101.04. When the examining attorney cites such Director’s orders or notices, the examining attorney should provide the title and date of the notice, and the specific issue of the TMOG in which it may be found.

USPTO Trademark Procedure Manuals. The examining attorney may cite sections of the Trademark Manual of Examining Procedure (TMEP) or Trademark Trial and Appeal Board Manual of Procedure (TBMP). The abbreviations TMEP and TBMP are usually sufficient. However, if the person prosecuting the application appears to be unfamiliar with USPTO practice, the examining attorney may identify the manuals by their full names in the first citation to the manuals. It is not necessary to provide a copy of the relevant section(s) of the manuals.