# The vanishing TTAB precedent: what fewer precedential decisions mean for practice

> For a decade the Board designated 40 to 55 precedents a year. In 2025 it designated 12. We counted the decisions ourselves, and we set out what the drop changes for examination, appeals and inter partes work.

Published 2026-10-20 · Updated 2026-10-21

Canonical: https://distinctive-mark.com/commentary/the-vanishing-ttab-precedent/

The Trademark Trial and Appeal Board decides several hundred cases a year. It decides which of its decisions bind future panels and examining attorneys. Precedential decisions are binding on the Board. Non-precedential decisions are not, although they may be cited for whatever persuasive value they have ([TBMP §101.03](https://tbmp.uspto.gov/RDMS/TBMP/current); see also [*In re Brunetti*, No. 2023-1539, slip op. at 15 (Fed. Cir. Aug. 26, 2025)](https://www.cafc.uscourts.gov/opinions-orders/23-1539.OPINION.8-26-2025_2563636.pdf)). Since 2024 the Board has designated far fewer precedents. Below is what the data show, what the Board has said about why, and what changes for practitioners.

## What we counted

We queried the USPTO's [TTAB Reading Room](https://ttab-reading-room.uspto.gov/) on October 20, 2026, counting decisions by decision date. We removed duplicate records of the same document, which the Reading Room sometimes lists twice. "All decisions" is the Reading Room's total for the year and has not been de-duplicated.

| Year | All decisions | Precedential | Share |
| --- | --- | --- | --- |
| 2015 | 641 | 41 | 6.4% |
| 2016 | 695 | 41 | 5.9% |
| 2017 | 678 | 46 | 6.8% |
| 2018 | 596 | 47 | 7.9% |
| 2019 | 635 | 39 | 6.1% |
| 2020 | 785 | 55 | 7.0% |
| 2021 | 681 | 48 | 7.0% |
| 2022 | 645 | 54 | 8.4% |
| 2023 | 689 | 50 | 7.3% |
| 2024 | 659 | 32 | 4.9% |
| 2025 | 718 | 12 | 1.7% |
| 2026 (to Oct. 20) | 455 | 9 | 2.0% |

Three caveats apply. First, the Board sometimes designates a decision as precedential months after it issues. *August Storck KG v. Florend Indústria e Comércio de Chocolates LTDA*, Opp. No. 91277224, was mailed on November 14, 2025, and [redesignated as precedent](https://ttab-reading-room.uspto.gov/ttab-document//legal-proceeding/91277224/decision/OPP_40.pdf) on January 27, 2026. The Reading Room counts it in 2026. Second, the Reading Room lists decisions about two weeks after they issue. Third, tallies published elsewhere differ a little because they count by fiscal year or by calendar year. One law firm's newsletter counted 12 precedents among 636 decisions in 2025, and The TTABlog counted 30 for 2024. These are press sources, but every count shows the same drop.

Output did not fall. The Board decided about as many cases in 2025 as in any recent year. What fell was the share it designated as precedent, from roughly one decision in fourteen to roughly one in sixty.

## What the Board has said

We have not found a published statement of policy. According to press reports ([*Law360*, May 2026, as summarized by Holland & Knight](https://www.hklaw.com/en/news/intheheadlines/2026/05/ttabs-selective-approach-spurs-drop-in-precedents)), Board leadership has attributed the drop to fewer administrative trademark judges handling a growing docket. It has said that its criteria for designating precedent have not changed and that it is being more selective. We report that explanation as the Board's. We have not seen data on judge headcount that would let us test it.

## What a precedent does that a decision does not

A precedential decision does three things that a non-precedential one does not:

1. **It guides examination.** Examining attorneys cite the Board's precedents in refusals, and the TMEP is revised to reflect them. A precedent on a recurring refusal, such as how much third-party use defeats a slogan, can change how thousands of applications are examined. A non-precedential decision decides one application.
2. **It settles a question.** Before the Board, a cited non-precedential decision persuades only to the extent its reasoning does. A later panel can reach the opposite result without distinguishing it.
3. **It gives courts something to review.** *Brunetti* shows the cost. The Federal Circuit vacated a *precedential* failure-to-function decision because the Board had not stated a standard that a court could review. The court said the Board "must provide rational guidance that is sufficiently explained." Precedent is how the Board provides that guidance across cases.

## Where the guidance now comes from

*This section mixes summary and the editors' opinion, labeled as such.*

**The Federal Circuit has done much of the doctrinal work.** In 2025 it decided [*Curtin v. United Trademark Holdings*](https://www.cafc.uscourts.gov/opinions-orders/23-2140.OPINION.5-22-2025_2519037.pdf) (May 22), on who may oppose. It decided [*In re Vetements Group AG*](https://www.cafc.uscourts.gov/opinions-orders/23-2050.OPINION.5-21-2025_2518135.pdf) (May 21), on the doctrine of foreign equivalents, and [*Brunetti*](https://www.cafc.uscourts.gov/opinions-orders/23-1539.OPINION.8-26-2025_2563636.pdf) (August 26), on failure to function. It decided [*In re Bayou Grande Coffee Roasting Co.*](https://www.cafc.uscourts.gov/opinions-orders/24-1118.OPINION.12-9-2025_2616391.pdf) (December 9), on foreign words and genericness. In our view, more of the law of registrability is now being made on appeal than at the Board. Appeal is the slower and more expensive way to make it.

**The TMEP fills gaps but does not bind the Board.** The examination manual (currently the [May 2026 edition](https://tmep.uspto.gov/RDMS/TMEP/current)) tells examining attorneys what to do. It has no force of law before the Board or the courts.

**The remaining precedents lean cross-border.** Among the precedents designated in 2025 and 2026 are an opposition sustained for lack of a bona fide intent to use between two Mexican companies ([*Tequila Cuadra*](https://ttabvue.uspto.gov/ttabvue/v?pno=91282327&pty=OPP), Opp. No. 91282327). Another is a partly sustained opposition against an Austrian company's §66(a) application ([*SawStop v. Felder KG*](https://ttabvue.uspto.gov/ttabvue/v?pno=91255905&pty=OPP), Opp. No. 91255905). There is the DANKE/MERCI chocolate decision between German and Brazilian companies ([*Storck*](https://ttab-reading-room.uspto.gov/ttab-document//legal-proceeding/91277224/decision/OPP_40.pdf)), and a §2(d) opposition by an Italian winery against a Mexican one ([*Cielo e Terra v. Hoteles y Viñedos del Valle de Guadalupe*](https://ttab-reading-room.uspto.gov/ttab-document//legal-proceeding/91287216/decision/OPP_17.pdf), Opp. No. 91287216, Sept. 3, 2026). We cannot say whether this reflects a deliberate choice or the cases that happened to come up. For foreign counsel it does mean that a large share of the recent binding law on bona fide intent and foreign equivalents involves parties like their clients.

## What to do differently

- **Cite the source of authority.** When a point rests on a non-precedential decision, call it non-precedential and say why its reasoning applies. Pair it with the statute, the TMEP section or a Federal Circuit decision wherever one exists.
- **Read patterns, not single decisions.** With fewer precedents, a run of consistent non-precedential decisions is the best evidence of how panels currently decide an issue. A practitioner who can show five panels reaching the same result has a stronger argument than one who cites one.
- **Weigh the appeal route earlier.** If an issue turns on a question the Board has not settled, the Federal Circuit may be where it is settled. That affects how the record is built in examination, because appeals are decided on the record below.
- **Advise clients on uncertainty.** Fewer precedents means wider ranges of likely outcomes on open questions. Owners should hear that before they choose a borderline mark, not after a refusal.

We will update these counts as decisions are designated. This is general information, not legal advice. For the owner's side of an examination refusal, see the Before You File guide on [responding to an Office action](/guides/responding-to-an-office-action/).