(D.C. Cir. 2017) (“[F]ederal courts of appeals generally are courts of review, not first view.”).
III.
The Lanham Act, 15 U.S.C. §§ 1051 et seq., “provide[s] national protection for trademarks used in interstate and foreign commerce,” Park ’N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 193, 105. S.Ct. 658, 83 L.Ed.2d 582 (1985). Under the Act, the seller or producer of a good has the exclusive right to “register” a trademark, 15 U.S.C. § 1052, and to prevent competitors from using the mark, see id. § 1114. The basic premise of trademark law, the Supreme Court has explained, is that, “by preventing others from copying a source-identifying mark,” a trademark “‘reduce[s] the customer’s costs of shopping and making purchasing decisions,’ for it quickly and easily assures a potential customer that this item—the item with this mark—is made by the same producer as other similarly marked items that he or she liked (or disliked) in the past.” Qualitex Co. v. Jacobson Products Co., 514 U.S. 159, 163–64, 115 S.Ct. 1300, 131 L.Ed.2d 248 (1995) (alteration in original) (quoting 1 J. Thomas. McCarthy, McCarthy on Trademarks and Unfair Competition § 2.01[2] (3d ed. 1994) (McCarthy)). “At the same time, the law helps assure a producer that it (and not an imitating competitor) will reap the financial, reputation-related rewards associated with a desirable product.” Id. at 164, 115 S.Ct. 1300. Put simply, trademarks “‘encourage[ ] the production of quality products,’ and simultaneously discourage[ ] those who hope to sell inferior products by capitalizing on a consumer's inability quickly to evaluate the quality of an item offered for sale.” Id. (quoting McCarthy § 2.01[2] ).
The SDOs who brought the ASTM litigation have registered numerous trademarks, including the “ASTM word mark,” “the ASTM INTERNATIONAL word mark,” and two stylized ASTM logos, which they place on the cover pages of their technical standards. ASTM Compl. ¶ 61, J.A. 84–85. Take, for example, ASTM D86-07, referenced in 40 C.F.R. § 80.47(h)(1). The first page of that standard, part of which we reproduce below, introduces the name of the work by depicting the “ASTM International” logo and placing it next to the text “Designation D 86-07.” ASTM International, Designation: D 86-07 Standard Test Method for Distillation of Petroleum Products at Atmospheric Pressure 1 (2007), J.A. 278.
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Each subsequent page of the work includes a header that again displays the ASTM logo and places it next to the text “D86-07.” See id. at 2–28, J.A. 279–305. This is typical of the technical standards at issue in this appeal.
ASTM plaintiffs contend that PRO infringed on their registered marks when it distributed its copies of the technical standards because it also reproduced the ASTM marks in connection with the distribution of those goods. ASTM Compl. ¶¶ 123–24, J.A. 102. ASTM objects to this use of its mark not simply because PRO copied the marks when it copied the works as a whole, but because PRO affixed the marks to versions of the standards that it had modified and, in the process, introduced errors into. Id. ¶ 130, J.A. 103. Acknowledging that PRO included disclaimers with its version of the standards, ASTM reiterates the district court’s finding that they “‘can hardly be called disclaimers at all,’” ASTM Br. 58 (quoting ASTM, 2017 WL 473822, at *23), because they “do not mention [PRO’s] creation of the reproductions, [the SDOs’] lack of association or authorization, or that they are even reproductions or transcriptions,”
