Michael P. Chisena v. Major League Baseball Players Association, Aaron Judge

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MICHAEL P. CHISENA,
Appellant
v.
MAJOR LEAGUE BASEBALL PLAYERS
ASSOCIATION, AARON JUDGE,
Appellees
______________________
2023-2073
______________________
Appeal from the United States Patent and Trademark
Office, Trademark Trial and Appeal Board in Nos.
91240180, 91242556, 91243244.
______________________
Decided: January 8, 2026
______________________
MICHAEL CHISENA, Garden City, NY, pro se.
L ORI J ANE SHYAVITZ, McCarter & English, LLP, Bos-
ton, MA, for appellees. Also represented by ALEXANDER
HORNAT ; I RENE MARY HURTADO, New York, NY.
______________________
Case: 23-2073 Document: 88 Page: 1 Filed: 01/08/2026

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CHISENA v. MAJOR LEAGUE BASEBALL PLAYERS ASSOCIATION 2
Before L OURIE and H UGHES , Circuit Judges, and
F REEMAN,1 District Judge.
L OURIE, Circuit Judge.
Michael P. Chisena appeals from the final decision of
the Trademark Trial and Appeal Board (“the Board”) refus-
ing registration of two standard character marks––ALL
RISE and HERE COMES THE JUDGE––and one design
mark, pictured below (collectively, “the proposed marks”).
See S.A. at 1–61 (“Decision”);2 see also Major League Base-
ball Players Ass’n v. Chisena, 2023 WL 2986321 (T.T.A.B.
2023).
Decision, S.A. at 2. For the following reasons, we affirm.
BACKGROUND
Chisena sought to register the proposed marks on the
Principal Register for “clothing, namely t-shirts, shirts,
shorts, pants, sweatshirts, sweatpants, jackets, jerseys,
athletic uniforms, and caps.” Decision, S.A. at 2. He filed
three intent-to-use applications and claimed constructive
use (i.e., priority) dates of July 14, 2017 for the character
1 Honorable Beth Labson Freeman, District Judge,
United States District Court for the Northern District of
California, sitting by designation.
2 S.A. refers to the Supplemental Appendix, filed at
ECF No. 75.
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CHISENA v. MAJOR LEAGUE BASEBALL PLAYERS ASSOCIATION 3
marks and October 12, 2017 for the design mark. Id. at 9–
10. Appellee Major League Baseball Players Association
(“the MLBPA”) filed Notices of Opposition, challenging reg-
istration of the proposed marks. Id. at 2. Appellee Aaron
Judge, an MLBPA member, jointly opposed registration of
the design mark. Id. The Board consolidated the three op-
position proceedings. Id. at 3.
Judge is an outfielder for the New York Yankees of Ma-
jor League Baseball, id. at 5, and is a popular and market-
able athlete, S.A. at 5424 ¶ 14. The baseball community
has played on his surname, including by using the phrases
“All rise!” and “Here comes the Judge.” Decision, S.A. at 6–
8.
Before the Board, the MLBPA and Judge (collectively,
“Opposers”) opposed registration under Section 2(d) of the
Trademark Act, 15 U.S.C. § 1052(d), alleging that
Chisena’s proposed marks would likely cause confusion
with Opposers’ marks. Decision, S.A. at 18. Opposers
claimed that they had common law trademark rights pre-
dating the constructive use dates of Chisena’s proposed
marks, including to ALL RISE and HERE COMES THE
JUDGE, as well as certain judicial symbols and legal
phrases such as a gavel, an image of a courthouse, or the
scales of justice, all of which were associated with Judge.
(“Opposers’ marks”). See id. at 14.
In making its determination, the Board first found that
the earliest priority dates on which Chisena could rely were
his constructive use filing dates: July 14, 2017 for the char-
acter marks, and October 12, 2017 for the design mark. Id.
at 19. The Board found that Opposers’ marks were distinc-
tive, id. at 32–36, used as trademarks before the priority
dates, id. at 36–42, 49–50, and functioned as trademarks,
id. at 42–48. The Board found that Opposers’ first use pre-
dated Chisena’s earliest priority dates. Id. at 50. The
Board thus found that Opposers established priority of use
of ALL RISE and HERE COMES THE JUDGE, as well as
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CHISENA v. MAJOR LEAGUE BASEBALL PLAYERS ASSOCIATION 4
judicial designs such as a gavel, courthouse image, or the
scales of justice, as trademarks on t-shirts, baseball caps,
and other athletic apparel. Id. at 50. The Board further
determined there was a likelihood of confusion between
Chisena’s proposed marks and Opposers’ marks, sustained
the Opposers’ objections, and refused registration of
Chisena’s proposed marks. Id. at 51–61.
Chisena timely appealed and we have jurisdiction un-
der 15 U.S.C. § 1071(a) and 28 U.S.C. § 1295(a)(4)(B). We
affirm.
D ISCUSSION
Section 2(d) of the Lanham Act “precludes registration
when a mark is likely to cause confusion with a mark or
trade name previously used or registered by another.”
Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156,
1161–62 (Fed. Cir. 2002) (citing 15 U.S.C. § 1052(d); Cun-
ningham v. Laser Golf Corp., 222 F.3d 943, 945 (Fed. Cir.
2000)). “Hence, a party petitioning for cancellation under
section 2(d) must show that it had priority” to the contested
marks. Id. at 1162. Chisena challenges only the Board’s
priority ruling, Op. Br. at 4, so we do not address likelihood
of confusion.
“To establish priority, the petitioner must show propri-
etary rights in the mark that produce a likelihood of confu-
sion.” Herbko Int’l, 308 F.3d at 1162 (citing Otto Roth &
Co. v. Universal Foods Corp., 640 F.2d 1317, 1320
(C.C.P.A. 1981)). “These proprietary rights may arise from
a prior registration, prior trademark or service mark use,
prior use as a trade name, prior use analogous to trade-
mark or service mark use, or any other use sufficient to es-
tablish proprietary rights.” Id. (citations omitted).
“The Board’s determination of priority is a question of
fact reviewed for substantial evidence.” Araujo v. Fram-
boise Holdings Inc., 99 F.4th 1377, 1380 (Fed. Cir. 2024)
(citing Lyons v. Am. Coll. of Veterinary Sports Med. &
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CHISENA v. MAJOR LEAGUE BASEBALL PLAYERS ASSOCIATION 5
Rehab., 859 F.3d 1023, 1028 (Fed. Cir. 2017)). As a pro se
litigant, Chisena is afforded a liberal reading of his filings.
See Harris v. Shinseki, 704 F.3d 946, 948 (Fed. Cir. 2013).
But this does not lower the standard for substantial evi-
dence, which is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
Araujo, 99 F.4th at 1380 (citation omitted).
The Board’s determination of priority was supported by
substantial evidence. First, the Board properly determined
Chisena’s priority dates by pointing to testimony that
Chisena “did not use the [proposed] marks in commerce un-
til after he filed the three involved applications.” See Deci-
sion, S.A. at 19; see also S.A. at 190–91, 209–10. Thus,
Chisena could rely only on his constructive use filing dates:
July 14, 2017 for the character marks and October 12, 2017
for the design mark. Decision, S.A. at 19 (citing Zirco Corp.
v. Am. Tel. & Tel. Co., 21 U.S.P.Q. 2d 1542, 1544 (T.T.A.B.
1991)); see also S.A. at 166, 190–95, 209–13. Indeed,
Chisena does not seem to dispute these priority dates. See,
e.g., Op. Br. at 66 (using the July 14, 2017 priority date).
Second, the Board reasonably determined that Oppos-
ers have rights in the Opposers’ marks that predate
Chisena’s priority dates. The Board considered testimony
and documentation concerning multiple officially licensed
products bearing Judge’s personal indicia and judicial
phrases or symbols, all of which came before the proposed
mark’s priority dates. See Decision, S.A. at 20–28; see also
id. at 22–24 (June 2017 shirts with Judge’s name or depic-
tion, all stating “ALL RISE”); id. at 25 (June 2017 apparel
with gavel design on baseball diamond background, stating
“HERE COMES THE JUDGE”); id. at 26 (June 2017 cloth-
ing patches bearing judicial phrases, baseball symbols, and
Judge’s surname); id. at 27–28 (June 2017 apparel with
baseball diamond design background, stating “THE
JUDGE’S CHAMBERS”). This list of products, along with
specific dates, constitutes substantial evidence that the
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CHISENA v. MAJOR LEAGUE BASEBALL PLAYERS ASSOCIATION 6
Opposers’ marks were used as trademarks before Chisena’s
priority dates. See Araujo, 99 F.4th at 1380–81.
Chisena’s arguments to the contrary are unavailing.
Chisena first argues that Opposers did not adequately
“plead” Opposers’ marks in the Notices of Opposition. Op.
Br. at 10–15. Specifically, he argues that for each Notice
of Opposition, Opposers did not identify the specific marks
at issue. See id. at 12–15. However, the Board found that
Opposers’ pleadings did afford Chisena fair notice. See De-
cision, S.A. at 31. We agree.3
Opposers’ pleadings simply needed to afford Chisena
fair notice of the claimed marks and the basis of its priority
claims, and they did that. See Bureau Nat’l Interprofes-
sionnel du Cognac v. Cologne & Cognac Ent., 110 F.4th
1356, 1373 (Fed. Cir. 2024) (finding sufficient pleading of
claim where “it was clear from the Notice, and from the na-
ture of the claim, [w]hat Opposers intended to argue”). Op-
posers’ Notices of Opposition included sufficient detail to
give Chisena fair notice, as each Notice claimed ownership
of a mark that served as a basis for opposing Chisena’s pro-
posed marks. See id.; S.A. at 77–78, 80 (Notice of Opposi-
tion to HERE COMES THE JUDGE due to a likelihood of
confusion with Opposers’ JUDGE mark); id. at 6349–50,
6352 (Notice of Opposition to ALL RISE due to a likelihood
of confusion with Opposers’ ALL RISE mark); id. at 6366–
3 Chisena also argues that Opposers waived a vari-
ety of arguments, including distinctiveness, Op. Br. at 29,
31, failure to function, id. at 40, 45, 55, and ownership and
adoption of the marks, id. at 16–17. But these arguments
are not persuasive, as Opposers’ pleadings clearly lay out
their proprietary rights, stating the Opposers’ marks are
distinctive and pointing to Judge as the primary source of
his baseball services and the secondary source of the licen-
sees’ apparel and items. See, e.g., S.A. at 80–82, 6351–54,
6368–72.
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CHISENA v. MAJOR LEAGUE BASEBALL PLAYERS ASSOCIATION 7
67, 6369–70 (Notice of Opposition to the design mark due
to a likelihood of confusion with Opposers’ marks that use
“Judge’s surname, JUDGE, HERE COMES THE JUDGE
and ALL RISE, and judicial symbols, including gavels,
alone and with other terms and design”).
Next, Chisena argues that Opposers’ ALL RISE and
HERE COMES THE JUDGE marks are not inherently dis-
tinctive and therefore ineligible for trademark protection.
See Op. Br. at 29. “A mark that is fanciful, arbitrary, or
suggestive is considered to be inherently distinctive, and
thus automatically qualifies for trademark protection.”
Nautilus Grp., Inc. v. ICON Health & Fitness, Inc.,
372 F.3d 1330, 1340 (Fed. Cir. 2004); accord In re Pacer
Tech., 338 F.3d 1348, 1350 (Fed. Cir. 2003) (denying regis-
tration where there was no inherent distinctiveness). We
review this determination for substantial evidence. Pacer
Tech., 338 F.3d at 1350.
The Board found that ALL RISE and HERE COMES
THE JUDGE were distinctive. Decision, S.A. at 32. Again,
we agree with the Board. Its conclusion on distinctiveness
was supported by substantial evidence that ALL RISE and
HERE COMES THE JUDGE are arbitrary because they do
not describe the apparel on which they appear. See Nauti-
lus, 372 F.3d at 1340 (“an arbitrary mark is a known word
used in an unexpected or uncommon way” and is “typically
strong” (citation omitted)); Decision, S.A. at 24–25 (shirts
with Judge’s likeness stating ALL RISE and HERE
COMES THE JUDGE).
In the same vein, Chisena argues that the ALL RISE
and HERE COMES THE JUDGE marks are not distinctive
because they are a surname and nickname, respectively.
See Op. Br. at 33. These arguments are unpersuasive. The
Board reasonably explained that the primary significance
of ALL RISE and HERE COMES THE JUDGE was the ju-
dicial connotation: that is, the word JUDGE is not primar-
ily merely a surname, as HERE COMES THE JUDGE has
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CHISENA v. MAJOR LEAGUE BASEBALL PLAYERS ASSOCIATION 8
a dual meaning, playing on both the judicial and surname
meanings. See Decision, S.A. at 33–34; see also id. at 25
(shirts displaying HERE COMES THE JUDGE with Judge
holding a gavel).4 The same is true for Chisena’s nickname
argument, as the Board reasonably explained that ALL
RISE is associated with Judge, regardless whether it is his
nickname. See Decision, S.A. at 35–36; see also id. at 24
(shirts stating ALL RISE and displaying Judge’s name).
Finally, Chisena argues that the Opposers’ ALL RISE
and HERE COMES THE JUDGE marks failed to function
as trademarks. See Op. Br. at 39 (arguing the marks were
“ornamentation or informational messaging”); id. at 53 (ar-
guing no evidence of secondary source identification). A
trademark must “function as a source identifier.” In re Vox
Populi Registry Ltd., 25 F.4th 1348, 1351 (Fed. Cir. 2022).
Here, we “focus[] on how the mark[s] [are] used in the mar-
ketplace and how [they are] perceived by consumers.” In
re Brunetti, 151 F.4th 1367, 1375 (Fed. Cir. 2025) (quoting
In re GO & Assocs., LLC, 90 F.4th 1354, 1356 (Fed. Cir.
2024)).
We review this determination for substantial evidence.
Id. The Board found that the marks do function as trade-
marks. Decision, S.A. at 48. We agree. Opposers pre-
sented substantial evidence that these marks were source
identifiers, as customers who would encounter those marks
on apparel would associate them with Judge. See id. at 38–
42, 44. Specifically, the Board pointed to the media articles
referring to Judge using the phrase ALL RISE, id. at 39–
4 Chisena seems to rely on 15 U.S.C. § 1052(e)(4),
which does not allow trademark registration of a mark that
“is primarily a surname.” See Op. Br. at 35–36; see also
Decision, S.A. at 33 (analyzing Chisena’s surname argu-
ments under § 1052(e)(4)). While this is a statutory re-
quirement for registration, we analyze this argument in
the context of common law distinctiveness.
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CHISENA v. MAJOR LEAGUE BASEBALL PLAYERS ASSOCIATION 9
40, the formation of a “Judge’s Chambers” in right field of
Yankee’s Stadium, id. at 40–41, and “judicially-themed”
apparel to indicate a connection with Judge. See, e.g., S.A.
4257–58 (t-shirt saying “ALL RISE” with a gavel bearing
Judge’s jersey number); id. at 5429 ¶ 30 (apparel products
featuring judicial indicia and the phrases ALL RISE,
JUDGE’S CHAMBERS, and JUDGEMENT DAY produced
in connection with Judge). Substantial evidence therefore
supports the Board’s findings that Opposers’ ALL RISE
and HERE COMES THE JUDGE marks functioned as
trademarks.
CONCLUSION
We have considered the remainder of Chisena’s argu-
ments and find them unpersuasive. For the foregoing rea-
sons, we judge that the Board’s order refusing registration
of the proposed marks was supported by substantial evi-
dence and was consistent with law.
AFFIRMED
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