Case: 24-1041 Document: 27 Page: 1 Filed: 05/03/2024

NOTE: This order is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________ IFIT INC., Appellant v. KATHERINE K. VIDAL, Under Secretary of Com- merce for Intellectual Property and Director of the United States Patent and Trademark Office, Intervenor ______________________ 2024-1041 ______________________ Appeal from the United States Patent and Trademark Office, Trademark Trial and Appeal Board in No. 91264855. ______________________ ON MOTION ______________________ Before CHEN, LINN, and HUGHES, Circuit Judges.

LINN, Circuit Judge.

ORDER iFIT Inc. has filed its opening brief challenging the Trademark Trial and Appeal Board’s dismissal of its oppo- sition to registration of ERB Industries, Inc.’s (“ERB”) Case: 24-1041 Document: 27 Page: 2 Filed: 05/03/2024

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trademark. * The Director of the United States Patent and Trademark Office now moves to waive Federal Circuit Rule 27(f) and remand for further proceedings. iFIT opposes.

An agency may properly request a remand to recon- sider its previous position. SKF USA Inc. v. United States, 254 F.3d 1022, 1029 (Fed. Cir. 2001). In such cases, re- mand is usually appropriate if the agency expresses a “sub- stantial and legitimate” concern about its earlier decision or it wishes to reconsider its decision in light of a new legal decision. Id. Here, the Director raises legitimate concerns about the Board’s findings on the relatedness between ERB’s goods and iFIT’s services and also wishes to recon- sider the decision in light of Naterra International, Inc. v. Bensalem, 92 F.4th 1113, 1119 (Fed. Cir. 2024). The Direc- tor further notes that on remand the Board will “address all of Appellant’s alleged deficiencies.” Reply at 3. We agree with the Director that remanding now is the better course of action, as it will preserve judicial resources and may simplify the issues for any future appeal.

Accordingly, IT IS ORDERED THAT: (1) The Director’s motion is granted. The case is re- manded to the Trademark Trial and Appeal Board for fur- ther proceedings consistent with the motion and this order.

* In light of ERB’s non-participation in this appeal, the court granted the Director of the United States Patent and Trademark Office’s leave to intervene.

Case: 24-1041 Document: 27 Page: 3 Filed: 05/03/2024

IFIT INC. v. VIDAL 3

(2) Each side to bear its own costs.

FOR THE COURT

May 3, 2024 Date