Federal Circuit disposition — 23-1993

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
IN RE: AGADIA SYSTEMS INC.,
Appellant
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2023-1993
______________________
Appeal from the United States Patent and Trademark
Office, Trademark Trial and Appeal Board in No.
88943465.
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Decided: February 20, 2025
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J AYSON MACYDA , Canton, MI, argued for appellant.
MICHAEL CHAJON, Office of the Solicitor, United States
Patent and Trademark Office, Alexandria, VA, argued for
appellee Coke Morgan Stewart. Also represented by ERICA
J EUNG D ICKEY , CHRISTINA J. HIEBER , F ARHEENA Y ASMEEN
RASHEED.
______________________
Before P ROST , BRYSON, and REYNA, Circuit Judges.
REYNA, Circuit Judge.
Agadia Systems Inc. sought to register the proposed
trademark FORMULARYHUB with the United States Pa-
tent and Trademark Office. The PTO refused registration,
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IN RE: AGADIA SYSTEMS INC. 2
and the Trademark Trial and Appeal Board affirmed. Aga-
dia timely appeals. For the following reasons, we affirm.
BACKGROUND
Agadia Systems Inc. (“Agadia”) filed trademark regis-
tration applications for the proposed marks
FORMULARYHUB and FORMULARYHUB.com with the
United States Patent and Trademark Office (“PTO”).1 The
PTO refused both trademark registration applications
based on mere descriptiveness under 15 U.S.C.
§ 1052(e)(1).2 Agadia appealed both refusals to the Trade-
mark Trial and Appeal Board (“Board”). First, the Board
addressed the FORMULARYHUB.com appeal. In that ap-
peal, the PTO withdrew the refusal of registration based
on mere descriptiveness because the examiner believed
that the evidence supporting the refusal “was not properly
made of record due to a technical error.” J.A. 264. The
Board dismissed Agadia’s FORMULARYHUB.com appeal
as moot due to the PTO’s withdrawal of its refusal and re-
manded the case for further proceedings. J.A. 410. On re-
mand, the PTO stayed all further proceedings for the
FORMULARYHUB.com application pending Agadia’s
FORMULARYHUB appeal. J.A. 372–73.
The Board next addressed the FORMULARYHUB ap-
peal. The Board affirmed the PTO’s refusal of registration
based on mere descriptiveness. First, the Board rejected
Agadia’s arguments that waiver, judicial estoppel, and
1 Only the resolution of the FORMULARYHUB ap-
plication is at issue in this appeal. Agadia’s arguments on
appeal, however, refer to the FORMULARYHUB.com ap-
plication. As such, we detail the history of both applica-
tions.
2 The PTO also refused registration of the
FORMULARYHUB mark under 15 U.S.C. §§ 1051, 1127.
This separate refusal is not at issue on appeal.
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IN RE: AGADIA SYSTEMS INC. 3
equitable estoppel preclude the application of any descrip-
tiveness refusal to Agadia’s FORMULARYHUB applica-
tion based on the Board’s disposition of the PTO’s similar
refusal in the FORMULARYHUB.com proceeding. In re
Agadia Sys. Inc., No. 88943465, 2023 WL 2988198, at *1–2
(T.T.A.B. Apr. 6, 2023) (“Decision”). Turning to the merits
of Agadia’s FORMULARYHUB application, the Board af-
firmed the PTO’s descriptiveness refusal. The Board
adopted Agadia’s definition of the term “formulary” to
mean “[a] list of prescription drugs covered by a prescrip-
tion drug plan or another insurance plan offering prescrip-
tion drug benefits,” such as “a drug list.” Id. at *5–6. The
Board determined that a “hub” is best defined as “the effec-
tive center of an activity, region, or network.” Id. at *6.
Taking these two terms together, the Board ruled that
FORMULARYHUB is descriptive of Agadia’s software ser-
vices, which function “as a centralized location for a collec-
tion of formularies.” Id. at *5–8.
Agadia appeals. We have jurisdiction under 28 U.S.C.
§ 1295(a)(4)(B).
S TANDARD OF REVIEW
We review the Board’s legal conclusions de novo and its
factual findings for substantial evidence. In re Hotels.com,
L.P., 573 F.3d 1300, 1302 (Fed. Cir. 2009) (citation omit-
ted). Whether a mark is merely descriptive is question of
fact reviewed for substantial evidence. In re TriVita, Inc.,
783 F.3d 872, 874 (Fed. Cir. 2015).
We review the Board’s rulings on waiver, judicial es-
toppel, and equitable estoppel for an abuse of discretion.
Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1565 (Fed. Cir.
1996); Mabus v. Gen. Dynamics C4 Sys., Inc., 633 F.3d
1356, 1359 (Fed. Cir. 2011); Qualcomm Inc. v. Broadcom
Corp., 548 F.3d 1004, 1019 (Fed. Cir. 2008). The Board
abuses its discretion when its “decision rests on an error of
law or on erroneous findings of fact, or if the decision man-
ifests an unreasonable exercise of judgment in weighing
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IN RE: AGADIA SYSTEMS INC. 4
relevant factors.” Bridgestone/Firestone Rsch., Inc. v.
Auto. Club de l’Ouest de la France, 245 F.3d 1359, 1361
(Fed. Cir. 2001).
D ISCUSSION
Agadia advances two primary arguments on appeal.
First, Agadia argues that the Board erred in rejecting its
assertions that waiver, judicial estoppel, and equitable es-
toppel preclude any descriptiveness refusal to Agadia’s
FORMULARYHUB application. Second, Agadia argues
that the Board erred in ruling that the proposed mark
FORMULARYHUB is descriptive. We address each argu-
ment in turn.
I
We begin with waiver. Agadia argues that the PTO
waived its right to maintain its descriptiveness refusal to
the proposed FORMULARYHUB mark by withdrawing its
descriptiveness refusal to the proposed
FORMULARYHUB.com mark. Appellant Br. 18–19.
Waiver is the intentional relinquishment or abandonment
of a known right. In re Google Tech. Holdings LLC, 980
F.3d 858, 862 (Fed. Cir. 2020) (citation omitted). The
PTO’s withdrawal of its descriptiveness refusal in a sepa-
rate proceeding due to a perceived technical error is not an
intentional relinquishment or abandonment of any right to
sustain a similar refusal in the proceeding before us today.
Our conclusion is reinforced by the principle that “the PTO
must decide each application on its own merits, and deci-
sions regarding other registrations do not bind either the
agency or this court.” In re Boulevard Ent., Inc., 334 F.3d
1336, 1343 (Fed. Cir. 2003) (citation omitted). Such is the
case even if the PTO erred in registering another mark. Id.
Given this well-established principle, without more, the
Board correctly concluded that the PTO did not waive any
right in this proceeding based on its actions in the separate
FORMULARYHUB.com proceeding.
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IN RE: AGADIA SYSTEMS INC. 5
We turn next to judicial estoppel. Agadia argues that
the PTO is judicially estopped from asking the Board to af-
firm its descriptiveness refusal to the proposed
FORMULARYHUB mark because the Board “accepted”
the PTO’s withdrawal of its descriptiveness refusal to the
proposed FORMULARYHUB.com mark. Appellant
Br. 19–23. Agadia, as the party asserting judicial estoppel,
must show that the PTO previously succeeded in persuad-
ing a tribunal to accept an earlier position that is clearly
inconsistent with the position the PTO now takes, among
other requirements. Trustees in Bankr. of N. Am. Rubber
Thread Co., Inc. v. United States, 593 F.3d 1346, 1354
(Fed. Cir. 2010). Judicial estoppel cannot apply in this
case because the PTO did not succeed in persuading the
Board of anything regarding the descriptiveness of the pro-
posed FORMULARYHUB.com mark. Notably, the Board
did not address the merits of any issue of descriptiveness
in that appeal. Instead, the PTO withdrew its descriptive-
ness refusal in the FORMULARYHUB.com proceeding,
thus rendering the issue moot and depriving the Board of
jurisdiction to adopt any position advocated by either
party. For these reasons, the Board properly rejected Aga-
dia’s judicial estoppel theory.
We turn last to equitable estoppel. Agadia argues that
the PTO is equitably estopped from maintaining its de-
scriptiveness refusal in the current proceeding because it
withdrew a similar refusal in the FORMULARYHUB.com
proceeding. Appellant Br. 22–27. As relevant here, for eq-
uitable estoppel to apply, the PTO must have engaged in
misleading conduct that led Agadia to “reasonably infer
that rights will not be asserted against it.” Lincoln Logs
Ltd. v. Lincoln Pre-Cut Log Homes, Inc., 971 F.2d 732, 734
(Fed. Cir. 1992). For the same reasons as discussed in con-
nection with waiver, the PTO’s withdrawal of its descrip-
tiveness refusal in the FORMULARYHUB.com proceeding
was not misleading. Namely, the PTO must decide each
application on its own merits, even if the PTO erred in
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IN RE: AGADIA SYSTEMS INC. 6
registering another similar mark. In re Boulevard Ent.,
Inc., 334 F.3d at 1343. For the same reason, Agadia could
not have reasonably inferred that the PTO would withdraw
its descriptiveness refusal in the FORMULARYHUB pro-
ceeding, given the same principle that the PTO must decide
each application on its own merits. Accordingly, the Board
correctly concluded that equitable estoppel does not apply.
To be clear, we do not mean that separate trademark
application proceedings may never impact one another. In-
deed, we note that the PTO stayed proceedings for the
FORMULARYHUB.com application pending Agadia’s ap-
peal in the FORMULARYHUB matter, seemingly in recog-
nition that the FORMULARYHUB proceedings may affect
the separate FORMULARYHUB.com proceedings. We
only hold that waiver, judicial estoppel, and equitable es-
toppel do not apply in the specific case before us today.
II
Agadia advances two primary arguments to support its
position that the proposed mark FORMULARYHUB is not
descriptive. First, Agadia argues that the Board failed to
evaluate the mark in relationship to Agadia’s customizing
computer software services. Appellant Br. 27–29. Next,
Agadia argues that the Board erred in adopting a non-
hardware-based definition of the term “hub.” Id. at 32–38.
Agadia’s arguments on descriptiveness fail under the
substantial evidence standard of review. To determine
whether the proposed mark FORMULARYHUB is merely
descriptive, the Board analyzed the specimen that Agadia
submitted with its application. The Board determined that
the specimen shows that Agadia’s “software functions for
users as a centralized location for a collection of formular-
ies.” Decision, 2023 WL 2988198, at *5. Next, the Board
considered several dictionary definitions of the term “for-
mulary,” excerpts from various third-party websites that
use the term “formulary,” and testimony from Sri Swarna,
Agadia’s Chief Executive Officer, about both formularies
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IN RE: AGADIA SYSTEMS INC. 7
and Agadia’s services. Id. at *5–6. Then, the Board con-
sidered several definitions of the term “hub.” Id. at *6–7.
Finally, the Board concluded that the words “formulary”
and “hub” separately, as well as the proposed mark
FORMULARYHUB in its entirety, are merely descriptive.
Id. at *8. This is substantial evidence. As such, we decline
Agadia’s invitation to reweigh evidence on appeal, which
we cannot do. Impax Lab’ys Inc. v. Lannett Holdings Inc.,
893 F.3d 1372, 1382 (Fed. Cir. 2018).
Agadia argues that the Board did not evaluate the pro-
posed mark in light of Agadia’s services because it failed to
discuss certain portions of testimony from Mr. Swarna that
provide details about Agadia’s services. We have recog-
nized that the Board is not required to discuss every piece
of evidence, so long as the Board does not “short-cut its con-
sideration of the factual record before it.” Princeton Van-
guard, LLC v. Frito-Lay N. Am., Inc., 786 F.3d 960, 970
(Fed. Cir. 2015). In analyzing Agadia’s services, the Board
discussed Agadia’s specimen, other portions of Mr.
Swarna’s testimony, and Agadia’s characterizations of its
services. Decision, 2023 WL 2988198, at *5–6. We see no
indication that the Board ignored the portions of Mr.
Swarna’s testimony that Agadia now relies on, and at the
very least, the Board was not required to discuss every por-
tion of Mr. Swarna’s testimony that might be relevant.
This is especially true given that Agadia only argues that
the additional portions of Mr. Swarna’s testimony describe
specific implementation details of Agadia’s services, not
that the Board misconstrued Agadia’s services altogether.
Appellant Br. 29. We conclude that the Board did not
“short-cut” its analysis and thus did not err.
Next, Agadia argues that the Board erred in rejecting
Agadia’s proposed hardware-based definition of the term
“hub” and adopting an “abstract,” non-computer-related
definition. Id. at 38. The Board must evaluate the mean-
ing of a proposed mark in relation to the particular goods
or services for which registration is sought. In re Bayer
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IN RE: AGADIA SYSTEMS INC. 8
Aktiengesellschaft, 488 F.3d 960, 963–64 (Fed. Cir. 2007).
The Board was confronted with several definitions of the
term “hub,” one of which was Agadia’s hardware-based def-
inition. Notably, Agadia argued before the Board that its
proposed definition of “hub” refers to hardware devices that
“don’t have any software associated with it.” Decision,
2023 WL 2988198, at *7 (citations omitted). The Board
evaluated the proposed definitions in the context of Aga-
dia’s custom software services and chose a different defini-
tion instead of Agadia’s proposed hardware-based
definition. In doing so, the Board properly evaluated the
term “hub” in relation to Agadia’s software services. Aga-
dia appears to conflate its services, software customization,
with computers generally, and thus hardware. The Board
was not legally required to adopt a hardware or computer-
based definition, but instead, needed to evaluate the mean-
ing of the term “hub” in light of Agadia’s software custom-
ization services. Bayer, 488 F.3d at 963–64. And that is
what the Board did. At best, Agadia’s proposed definition
is an alternate reasonable conclusion. The Board’s decision
to adopt one reasonable conclusion over another must be
sustained as supported by substantial evidence. In re
Viterra Inc., 671 F.3d 1358, 1361 (Fed. Cir. 2012).
CONCLUSION
We have considered Agadia’s remaining arguments
and find them unpersuasive. For the reasons stated, we
affirm the Board’s decision.
AFFIRMED
COSTS
Costs against Agadia.
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