Does the Trademark Trial and Appeal Board hold primary jurisdiction over trademark disputes? No, the Ninth Circuit held today. Rhoades v. Avon Products, Inc., No. 05-56407 (9th Cir. Oct. 15, 2007).
Avon Products challenged several trademark registrations and applications relating to microabrasion devices and skin care products. Settlement discussions failed, and after they did Dean Rhodes and his company, DermaNew, sued for a declaration that their trademarks didn’t infringe any of Avon’s. The district court dismissed. The Ninth Circuit reversed. It disagreed that suing after settlement talks break off amounts to "bad faith". It also concluded that Rhoades and DermaNew alleged a sufficient threat of suit to support a declaratory action, that the TTAB didn’t have "primary jurisdiction", and that a new judge should hear the case on remand.