On Tuesday, the U.S. Supreme Court ruled that federal court decisions on “likelihood of confusion” can be precluded by earlier findings on the same issue from the Trademark Trial and Appeal Board. Here, attorneys tell Law360 why the decision in B&B Hardware Inc. v. Hargis Industries Inc. is significant.
Bryan Wheelock, St. Louis trademark attorney and Principal:
“In B&B Hardware, the Supreme Court held that issue preclusion can apply to TTAB adjudications on likelihood of confusion. The bigger story, however, is that issue preclusion only applies ‘where other ordinary elements of issue preclusion are met’ and where ‘the usages adjudicated by the TTAB are materially the same.’ Because the TTAB’s application of the DuPont factors is constrained by what is before the USPTO, not what is actually going on in the marketplace, the usages adjudicated can be materially different. Like stockbrokers, we are left to advise our clients: ‘TTAB results are not a guarantee of district court performance.’”