Opinions — Thursday, January 8, 2026

The Federal Circuit dismissed in part and affirmed in part Crocs, Inc.'s appeal from a final determination by the International Trade Commission in Investigation No. 337-TA-1270 concerning alleged infringement and dilution of Crocs's U.S. Trademark Nos. 5,149,328 and 5,273,875 (the "3D Marks") covering features of its Classic Clog shoes. The Commission found no violation of Section 337 as to the respondents who participated in the evidentiary hearing (the "Active Respondents") and issued a limited exclusion order under 19 U.S.C. § 1337(g)(1) against four defaulting respondents. The court dismissed as untimely Crocs's appeal of the no-violation finding against the Active Respondents, holding that the 60-day appeal period under Section 337(c) began running on September 14, 2023, when the Commission issued its determination, not after the 60-day presidential review period applicable only to the exclusion order against the defaulting respondents. The court affirmed the Commission's issuance of only a limited exclusion order against the defaulting respondents, concluding that Section 337(g)(1) by its plain language authorizes only an exclusion order "limited to that person" found in default, not a general exclusion order.

The decision establishes that when the Commission issues a single written determination containing both a no-violation finding as to certain respondents and an exclusion order against other respondents, the appeal deadlines for the two findings are independent and not tied to a single presidential review period. Extending Allied Corp. v. International Trade Commission and Broadcom Corp. v. International Trade Commission, the court rejected Crocs's argument that the Commission's choice to issue one consolidated opinion rendered the entire determination subject to the presidential review period, holding that form cannot override substance in determining when a Commission determination becomes final for appeal purposes. The holding forecloses complainants from delaying their appeal of adverse no-violation findings by arguing that a single consolidated opinion containing both violation and no-violation determinations triggers only one appeal window tied to the latest presidential review period, requiring practitioners to carefully track separate finality dates within mixed-result investigations and to file protective notices of appeal for adverse findings immediately upon issuance even when other aspects of the investigation remain subject to presidential review.

The Federal Circuit affirmed the TTAB's refusal to register three marks—"ALL RISE," "HERE COMES THE JUDGE," and a design mark featuring judicial imagery—on likelihood of confusion grounds under Section 2(d). Appellant Chisena, proceeding pro se, sought to register the marks for apparel with constructive use dates in mid-2017, but the MLBPA and New York Yankees outfielder Aaron Judge established common law trademark priority based on earlier use of phrases and judicial symbols playing on Judge's surname in connection with licensed apparel. On appeal, Chisena challenged only the Board's priority determination, not likelihood of confusion.

The court applied substantial evidence review to the Board's factual findings on priority, distinctiveness, and trademark function. The opinion illustrates how notice pleading standards apply in TTAB oppositions—the court held that notices claiming ownership of marks and identifying the basis for opposition afforded fair notice even without granular specificity about every asserted common law right. On distinctiveness, the court found substantial evidence supporting arbitrary mark status for "ALL RISE" and "HERE COMES THE JUDGE" as applied to apparel, rejecting arguments that the phrases were primarily a surname or mere ornamentation, and noting the dual meaning playing on both judicial imagery and the athlete's name. The court affirmed the Board's source-identification findings based on media coverage, stadium branding ("Judge's Chambers"), and judicially-themed licensed merchandise predating Chisena's filing dates.