On Tuesday, the Supreme Court issued its decision in B&B Hardware v. Hargis Industries, ruling that decisions of the Trademark Trial and Appeal Board (TTAB) on “likelihood of confusion” in trademark opposition proceedings can have issue preclusive effect in infringement litigation brought in federal district courts. The ruling reversed a decision by the Eighth Circuit, which had found that determinations by the TTAB should not be given preclusive effect or even deference in later court proceedings.
Both the TTAB and district courts may issue decisions on the “likelihood of confusion” between similar marks – but for different purposes. The TTAB determines whether a federal trademark registration should be issued or canceled. A federal district court decides whether trademark infringement has occurred and whether remedies such as monetary damages or injunctive relief should be awarded. The question before the Supreme Court was whether a prior ruling made by the TTAB in the context of registration can preclude re-litigation of the same issue in a district court suit for infringement.
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