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Booking.com B.V. v. United States Patent and Trademark Office, et al.

Paid petition · United States Court of Appeals for the Fourth Circuit, No. 17-2458, 17-2459 · judgment February 4, 2019

GVR'd · July 2, 2020

Pre-decision estimate: 2% cert probability

Before the decision, well below the 4.1% base rate, with no standout signals pointing toward a grant.

Questions presented

Applicants for trademark registration dissatisfied with a decision of the Trademark Trial and Appeal Board can commence a civil action seeking de novo review in a United States District Court. 15 U.S.C. § 1071(b)(3).

Does the presumption under the American Rule that “[e]ach litigant pays his own attorneys’ fees, win or lose, unless a statute or contract provides otherwise,” Baker Botts LLP v ASARCO LLC, 135 S.Ct 2158, 2164 (2015), apply to Section 1071(b)(3)?
Is the language “all expenses of the proceeding” sufficiently “specific and explicit” to demonstrate Congressional intent to depart from the American Rule?
Are fixed costs of the government attorneys that would have been paid irrespective of any specific litigation sufficiently “of the proceeding” to be encompassed by Section 1071(b)(3)?
Does requiring litigants seeking to vindicate their statutory rights under Section 1071 to pay the government’s attorneys’ fees, win or lose, infringe their rights under the First Amendment to

Counsel of record

For petitioner
Jonathan E. Moskin
Foley & Lardner LL P

For respondent
Noel John Francisco
Jones Day

Case

Conference history
Distributed for 3 conferences

Amicus briefs
2 cert-stage

Proceedings

Aug 03 2020
JUDGMENT ISSUED.
Jul 02 2020
Motion for leave to file amicus brief filed by New York Intellectual Property Law Association GRANTED.
Jul 02 2020
Petition GRANTED. Judgment VACATED and case REMANDED for further consideration in light of Peter v. NantKwest, Inc., 589 U. S. ___ (2019).
Jun 30 2020
DISTRIBUTED for Conference of 7/1/2020.
Dec 11 2019
DISTRIBUTED for Conference of 12/13/2019.
Jun 04 2019
DISTRIBUTED for Conference of 6/20/2019.
May 30 2019
Reply of petitioner Booking.com B.V. filed.
May 16 2019
Brief of respondents United States Patent and Trademark Office, et al. filed.
May 16 2019
Brief amicus curiae of The Association of Amicus Counsel filed.
May 16 2019
Motion for leave to file amicus brief filed by New York Intellectual Property Law Association.
May 10 2019
Brief amicus curiae of American Intellectual Property Law Association filed.
Apr 10 2019
Petition for a writ of certiorari filed. (Response due May 16, 2019)