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Hylete LLC v. Hybrid Athletics, LLC

Failure to Raise on Reconsideration Issue in Board’s Sua Sponte Analysis Leads to Waiver

Hylete LLC v. Hybrid Athletics, LLC, __ F.3d __, 2019 WL 3483197 (Fed. Cir. Aug. 1, 2019) (Moore, REYNA, Wallach) (PTAB) (2 of 5 stars)

Fed Cir affirms TTAB decision sustaining Hybrid’s opposition to Hylete’s trademark registration application. The opinion declines to take up Hylete’s argument that the Board did not properly consider whether Hylete had common law rights in a “composite” mark, which comprised both graphical and textual elements. Hylete did not present this argument to the Board, and thus waived it. Hylete’s contention that the Board had sua sponte raised the issue of common law rights in its decision did not negate waiver because Hylete’s post-decision request for reconsideration also failed to address the issue.

KEYWORDS: TRADEMARK; WAIVER