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Thomas D. Foster, APC v. Coke Morgan Stewart, Acting Under Secretary of Commerce for Intellectual Property and Acting Director, United States Patent and Trademark Office

Paid petition · United States Court of Appeals for the Federal Circuit, No. 2023-1527 · judgment May 7, 2025


Certiorari denied · October 6, 2025
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

  1. Whether the Federal Circuit improperly considered government developments that postdate a trademark applicant’s filing to support a refusal under Section 2(a) of the Lanham Act, despite the applicant's statutory right to constructive use based on the application’s filing date.

  2. Whether the Federal Circuit improperly deferred to the USPTO’s statutory interpretation of Section 2(a) after this Court’s ruling in Loper Bright Enterprises v. Raimondo, which reaffirmed the judiciary’s duty to independently interpret the law under the Administrative Procedure Act.

  3. Whether Section 2(a)’s prohibition against marks that “falsely suggest a connection” is unconstitutionally vague as applied to an intent‑to‑use trademark application which the USPTO claims references a fictionalized entity that did not exist at the time of filing.

Counsel of record

For petitioner
Thomas Daniel Foster
TDFoster - Intellectual Property Law

For respondent
D. John Sauer
Solicitor General

Case

Conference history
Distributed for 1 conference

Proceedings

  1. Oct 06 2025
    Petition DENIED.
  2. Aug 27 2025
    DISTRIBUTED for Conference of 9/29/2025.
  3. Aug 21 2025
    Waiver of right of respondent Stewart, Coke to respond filed.
  4. Jul 23 2025
    Petition for a writ of certiorari filed. (Response due September 5, 2025)