March 24, 2015

“Attorneys React To Supreme Court’s TTAB Preclusion Ruling,”Law360, March 24, 2015

“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.’”

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