Trademark Daily Wrap up, TRADEMARK NEWS— Can a consumer bring a challenge to the registration of a mark? Supreme Court may have to decide, (Oct 10, 2025)

By Matthew Hersh, J.D.

The Federal Circuit’s rules of standing are at issue.

The Supreme Court should decide whether a consumer of a popular children’s toy has the legal standing to oppose the registration of a trademark in those goods, a new petition for certiorari asserts. The petition, filed on behalf of a law professor and longtime afficionado of the toy in question, points to a split among the federal courts of appeals over whether and how the principles of Article III standing in federal court should be applied to administrative agency proceedings (Curtin v. United Trademark Holdings, Inc., Dkt. No. 25-435 (U.S. filed Oct. 9, 2025)).

The dispute, labeled by one commentator as a “fairy tale of trademarks and standing,” began in 2017, when a trademark holding company named United Trademark Holdings filed a trademark application to register the term RAPUNZEL as a trademark for dolls and toy figures. UTH, as it happens, already holds a number of trademarks for well-known children’s toys—and it has been in litigation several times over the legitimacy of those trademarks as well.

The Rapunzel trademark action was opposed by Rebecca Curtin, a law professor and, more importantly, a long-time, avid collector of dolls and toy figures of fairy-tale characters—including Rapunzel. Curtin opposed registration on the ground that RAPUNZEL was “synonymous with the name of a well-known childhood fairytale character,” and was also generic for—and merely descriptive of—the identified goods. Curtin’s PTO papers set out a long list of reasons why she believed she had a legitimate interest in the outcome of the proceeding. She explained that if UTH were to obtain trademark protection for the name of a famous fairy-tale character, consumers like her would be denied healthy market-place competition for products bearing that name. As a result, she and other consumers would likely face an increased cost of dolls and types that depict Rapunzel the creation of new dolls and toys based on the fairy-tale character would be chilled.

The professor’s pleas fell on deaf ears at the PTO. The Trademark Trial and Appeal Board, charged with hearing the dispute, dismissed her opposition because she did not assert an injury to a commercial interest and her alleged damages were too speculative. The Federal Circuit, in May of this year, affirmed. In doing so, it invoked the “zone-of-interest” test set forth by the Supreme Court in Lexmark International, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014). Under that test, which addressed the standing requirement for bringing a lawsuit for false advertising under the Lanham Act, a plaintiff “must allege an injury to a commercial interest in reputation or sales.” Moreover, the Federal Circuit noted, “a statutory cause of action is limited to plaintiffs whose injuries are proximately caused by violations of the statute.” The zone-of-interests test and proximate cause requirement, the court of appeals noted, “are together referred to as the Lexmark framework for evaluating entitlement to exercise a statutory cause of action.”

Petition for certiorari. The court should grant the petition, the professor argues, because the Federal Circuit applied the wrong test to determine standing. Section 13 of the Lanham Act, which is codified at 15 U.S.C. § 1063, provides that “[a]ny person who believes that he would be damaged by the registration of a mark... may... file an opposition” to that registration. As it was interpreted in earlier Federal Circuit opinions, the petition notes, opposers can bring challenges as long as they have both a “real interest” in the proceedings and a “reasonable basis” for their belief of damage. But in more recent years, the petition notes, the Federal Circuit had abandoned that looser test and instead imposed the more rigid case-and-controversy standing rules adopted by Lexmark—that is, the test of “zone of interest and proximate causation.” The Supreme Court should intervene to correct the Federal Circuit, the petition argues.

The petition gives several reasons why the Supreme Court should intervene. For one thing, the petition argues, the Federal Circuit is out of line with the holdings of other courts of appeals. The petition cites to FDRLST Media, LLC v. National Labor Relations Board, 35 F.4th 108 (3d Cir. 2022), Ecee, Inc. v. Federal Energy Regulatory Commission, 645 F.2d 339 (5th Cir. 1981), and Envirocare of Utah, Inc. v. Nuclear Regulatory Commission, 194 F.3d 72 (D.C. Cir. 1999) as examples of other circuits that have taken a more relaxed view to agency standing. Equally importantly, the petition notes, review is warranted because of “the potential impact of the Federal Circuit’s decisions”—particularly where it comes to administrative law and other issues in which the Circuit has an outsized role. “The Federal Circuit has split from decisions of other Circuits and this Court on a fundamental issue of administrative law. The Court should grant review on that basis alone.”

The Court’s review is also important, the petition argues, to preserve the ability for certain consumers to participate in the trademark registration process. “The Federal Circuit imposed the zone-of-interests test on the road to deciding that no consumer can oppose the registration of a trademark on grounds that the trademark is descriptive or generic,” the petition notes. A “blanket bar” against consumers participating in the administrative registration process, the petition notes, is inconsistent with the Lanham Act—which from its earliest beginnings in legal history, has had “the dual goals of both protecting property in a trademark and protecting consumers from confusion and deception.” Consumers have a vested interest in trademarks and registration issues under the Lanham Act, the petition asserts—but “restraints on who may maintain a lawsuit in federal court may make it difficult for consumers to participate in the judicial process.”

The Case is No. 25-435.

Attorneys: John C. Stringham (Workman Nydegger) for Rebecca Curtin.

Companies: United Trademark Holdings, Inc.

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