IP Law Daily, TRADEMARK—Fed. Cir.: Refusal to register ‘ALL RISE’ and ‘HERE COMES THE JUDGE’ marks for apparel affirmed on appeal, (Jan 8, 2026)

By Ravindra Kumar Singh, B.L.

The Major League Baseball Players Association and Aaron Judge, a professional baseball player, established prior trademark rights in the disputed marks.

In a non-precedential disposition, the U.S. Court of Appeals for the Federal Circuit upheld the Trademark Trial and Appeal Board’s (TTAB) decision refusing the registration of three marks—ALL RISE, HERE COMES THE JUDGE, and a related design mark—proposed by an individual for use on clothing. The appellate court ruled that the marks were confusingly similar to common law trademarks associated with baseball player Aaron Judge and the Major League Baseball Players Association (MLBPA), whose use predated the applicant’s constructive use dates (Chisena v. Major League Baseball Players Ass’n, No. 23-2073 (Fed. Cir. Jan. 8, 2026)).

Background. Michael P. Chisena, the appellant and a resident of Garden City, New York, filed three intent-to-use applications for apparel-related trademarks. The appellees included the MLBPA, the collective bargaining representative of MLB athletes, and Aaron Judge, a high-profile outfielder for the New York Yankees. Judge, who enjoys significant marketability, had long been associated with the phrases “ALL RISE” and “HERE COMES THE JUDGE” in media and merchandise.

The marks at issue consisted of two word marks—ALL RISE and HERE COMES THE JUDGE—and a design mark incorporating judicial motifs. Chisena intended to use these marks on a wide range of clothing items, including t-shirts, sweatshirts, athletic uniforms, and caps. The marks were applied for under the intent-to-use basis, with claimed constructive use dates of July 14, 2017 (for the word marks) and October 12, 2017 (for the design mark).

The MLBPA and Judge filed Notices of Opposition under Section 2(d) of the Lanham Act (15 U.S.C. § 1052(d)), asserting prior common law rights in the same or confusingly similar marks and imagery. The TTAB consolidated the opposition proceedings and concluded that the Opposers had established priority of use. The Board also found that the slogans and related symbols functioned as trademarks, had become distinctive, and that their use in commerce predated Chisena’s constructive use dates. Registration was refused on the grounds of likely confusion. Chisena appealed, challenging only the Board’s findings on priority.

Priority. The Federal Circuit reiterated that priority in a Section 2(d) opposition requires demonstration of proprietary rights preceding the applicant’s priority dates. Citing Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 1162 (Fed. Cir. 2002), the panel noted that proprietary rights can arise from various forms of use, including prior trademark use or analogous use.

The court agreed with the Board that Chisena’s priority dates were limited to his filing dates, as he had not demonstrated actual use in commerce before then. This determination relied on Chisena’s own testimony and was thus supported by substantial evidence.

The Board found, and the court affirmed, that Opposers had used the phrases “ALL RISE” and “HERE COMES THE JUDGE,” along with judicial-themed graphics, on apparel prior to July and October 2017. Evidence included licensed June 2017 merchandise featuring Judge’s likeness and slogans, gavel graphics, and courthouse motifs. The court agreed that these products were used in a manner sufficient to establish trademark rights, citing the substantial documentary record before the TTAB.

Sufficiency of pleadings. Chisena argued that the opposers failed to adequately plead their marks in the Notices of Opposition. The court, however, held that the pleadings provided sufficient notice under Bureau Nat’l Interprofessionnel du Cognac v. Cologne & Cognac Ent., 110 F.4th 1356, 1373 (Fed. Cir. 2024). The notices explicitly identified the phrases and design elements at issue and their association with Judge.

Distinctiveness. The appellant also challenged the distinctiveness of the marks, arguing they were either generic phrases, surnames, or nicknames. The court upheld the Board’s finding that the phrases were inherently distinctive when applied to apparel. Referring to Nautilus Grp., Inc. v. ICON Health & Fitness, Inc., 372 F.3d 1330, 1340 (Fed. Cir. 2004), the court concluded that “ALL RISE” and “HERE COMES THE JUDGE” were arbitrary as used in this context and not descriptive of the goods.

The argument that “JUDGE” is a surname was rejected under 15 U.S.C. § 1052(e)(4), as the primary significance of the phrases evoked judicial themes, not merely a family name. Similarly, the court dismissed the nickname argument, emphasizing the broader public recognition of the phrases as symbols of Aaron Judge’s persona.

Function as trademarks. The court affirmed the Board’s conclusion that the phrases served as source identifiers, not mere ornamentation or informational slogans. Citing In re Vox Populi Registry Ltd., 25 F.4th 1348, 1351 (Fed. Cir. 2022) and In re Brunetti, 151 F.4th 1367, 1375 (Fed. Cir. 2025), the court explained that trademark function depends on consumer perception.

Evidence presented to the Board included widespread media use of the phrases in reference to Judge, the Yankees’ official creation of the “Judge’s Chambers” fan section, and judicially-themed merchandise prominently featuring Judge’s name and number. The court found this sufficient to show that the public viewed the marks as identifying the source—namely, Judge and his associated merchandise.

Conclusion. Finding no error in the Board’s analysis, the Federal Circuit affirmed the refusal of Chisena’s trademark applications. The court held that the Board’s findings on priority, distinctiveness, and trademark function were supported by substantial evidence and aligned with legal standards under the Lanham Act.

The Case is No. 23-2073.

Judge: Lourie, A.

Attorneys: Michael Chisena, pro se. Lori Jane Shyavitz (McCarter & English, LLP) for Major League Baseball Players Association and Aaron Judge.

Companies: Major League Baseball Players Association

Cases: Trademark FedCirNews USPTO