Guides · Trademark Litigation
Appeals in Trademark Cases
Unlike patent cases, trademark cases from Texas federal courts are appealed to the Fifth Circuit, not the Federal Circuit.
· Law checked through October 21, 2026
In Short
The Fifth Circuit treats likelihood of confusion as a question of fact, so it gives considerable deference to a jury verdict or a trial judge's findings. Appeals from the Trademark Trial and Appeal Board follow a different path and a different standard. The Supreme Court is now considering whether the strength of a mark is a question of fact, which could affect how appellate courts review that issue.
Common situations.
- A defendant loses a jury verdict on infringement in Dallas and wants to know its chances on appeal.
- A company denied a preliminary injunction asks whether it can appeal now or must wait for trial.
- A party loses an opposition at the TTAB and must choose between the Federal Circuit and a district court.
- A Texas state court grants a temporary injunction in a trademark dispute.
Where appeals go.
| Decision | Appeal to | Source |
|---|---|---|
| Federal district court in Texas | Fifth Circuit | 28 U.S.C. §§ 1291, 1292(a)(1) |
| TTAB, by direct appeal | Federal Circuit | 15 U.S.C. § 1071(a) |
| District court review of a TTAB decision | The regional circuit for that district court, for example the Fifth Circuit for a Texas court | § 1071(b); see U.S. Patent & Trademark Off. v. Booking.com B.V., 591 U.S. 549 (2020) (appeal from the Eastern District of Virginia to the Fourth Circuit) |
| International Trade Commission | Federal Circuit | 19 U.S.C. § 1337(c) |
| Texas district court | The Texas court of appeals for that district, then the Supreme Court of Texas | Tex. Civ. Prac. & Rem. Code § 51.014(a)(4) (temporary injunctions) |
| Texas Business Court | Fifteenth Court of Appeals | Tex. Gov't Code § 25A.007(a) |
Timing.
- Final judgment. A notice of appeal is due within 30 days after entry of judgment (Fed. R. App. P. 4(a)(1)(A)). Timely post-trial motions extend the deadline.
- Injunctions. An order granting, denying, or modifying an injunction may be appealed immediately (28 U.S.C. § 1292(a)(1)). In Texas state court, an order granting or denying a temporary injunction may also be appealed immediately (Tex. Civ. Prac. & Rem. Code § 51.014(a)(4)).
- TTAB decisions. An appeal or civil action must be filed within 63 days after the Board's decision (37 C.F.R. § 2.145(d)). See TTAB Oppositions and Cancellations.
- During the appeal. A money judgment can be stayed by posting a bond (Fed. R. Civ. P. 62(b)). An injunction stays in effect unless the district court or the court of appeals suspends or modifies it (Fed. R. Civ. P. 62(d); Fed. R. App. P. 8).
Standards of review in the Fifth Circuit.
| Issue | Standard | Authority |
|---|---|---|
| Likelihood of confusion after a bench trial | Clear error | Elvis Presley Enters., Inc. v. Capece, 141 F.3d 188 (5th Cir. 1998) |
| Likelihood of confusion found by a jury | Whether a reasonable jury could have reached the verdict on the evidence | Fed. R. Civ. P. 50 |
| Summary judgment | De novo | Xtreme Lashes, LLC v. Xtended Beauty, Inc., 576 F.3d 221 (5th Cir. 2009) |
| Preliminary injunction | Abuse of discretion, with findings reviewed for clear error | Future Proof Brands, L.L.C. v. Molson Coors Beverage Co., 982 F.3d 280 (5th Cir. 2020) |
| Award of profits | Abuse of discretion, applying equitable factors | Quick Techs., Inc. v. Sage Grp. PLC, 313 F.3d 338 (5th Cir. 2002) |
| Attorney's fees, including whether the case is exceptional | Abuse of discretion | Alliance for Good Gov't v. Coal. for Better Gov't, 919 F.3d 291 (5th Cir. 2019) |
| Admission of surveys and other expert evidence | Abuse of discretion | Scott Fetzer Co. v. House of Vacuums Inc., 381 F.3d 477 (5th Cir. 2004) |
Because likelihood of confusion is reviewed deferentially, an appellant generally has a better chance arguing legal error: the wrong legal standard, an erroneous jury instruction, the admission of evidence that should have been excluded, or a remedy the statute does not allow.
Appeals from the TTAB to the Federal Circuit.
The Federal Circuit treats likelihood of confusion as a legal conclusion based on factual findings. It reviews the Board's findings on each du Pont factor for substantial evidence and its weighing of the factors without deference (In re i.am.symbolic, llc, 866 F.3d 1315 (Fed. Cir. 2017)). The court reviews only the record before the Board. A party that wants to add evidence must instead seek review in a district court under § 1071(b).
The Supreme Court.
The Supreme Court agreed on June 29, 2026, to decide whether the strength of a mark is a question of fact in the likelihood-of-confusion analysis (RiseandShine Corp. v. PepsiCo, Inc., No. 24-1016). The case comes from the Second Circuit, which treats strength as a question of law. The decision is expected by the end of the Court's term in June 2027. Earlier, the Court held that whether a party may tack its use of an earlier mark onto a later one is a question for the jury (Hana Fin., Inc. v. Hana Bank, 574 U.S. 418 (2015)).
Sources.
- 15 U.S.C. § 1071.
- 19 U.S.C. § 1337(c).
- 28 U.S.C. §§ 1291, 1292(a)(1).
- Fed. R. App. P. 4(a), 8; Fed. R. Civ. P. 50, 62.
- 37 C.F.R. § 2.145(d).
- Tex. Civ. Prac. & Rem. Code § 51.014(a)(4); Tex. Gov't Code § 25A.007(a).
- Elvis Presley Enters., Inc. v. Capece, 141 F.3d 188 (5th Cir. 1998).
- Xtreme Lashes, LLC v. Xtended Beauty, Inc., 576 F.3d 221 (5th Cir. 2009).
- Future Proof Brands, L.L.C. v. Molson Coors Beverage Co., 982 F.3d 280 (5th Cir. 2020).
- Quick Techs., Inc. v. Sage Grp. PLC, 313 F.3d 338 (5th Cir. 2002).
- Alliance for Good Gov't v. Coal. for Better Gov't, 919 F.3d 291 (5th Cir. 2019).
- Scott Fetzer Co. v. House of Vacuums Inc., 381 F.3d 477 (5th Cir. 2004).
- In re i.am.symbolic, llc, 866 F.3d 1315 (Fed. Cir. 2017).
- U.S. Patent & Trademark Off. v. Booking.com B.V., 591 U.S. 549 (2020).
- RiseandShine Corp. v. PepsiCo, Inc., No. 24-1016 (U.S. cert. granted June 29, 2026).
- Hana Fin., Inc. v. Hana Bank, 574 U.S. 418 (2015).
This guide is general information, not legal advice. Law checked through October 21, 2026. See the Disclaimer.