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<i>B&B</i> Offers Rest And Repose

By Jonathan Moskin

The U.S. Supreme Court, in B&B Hardware, Inc. v. Hargis Industries, 575 U.S. ____, No. 13-352 (March 24, 2015), concluded that a Trademark Trial and Appeal Board (TTAB) finding of likelihood of confusion can have preclusive effect in a later infringement litigation. “So long as the other ordinary elements of issue preclusion are met, when the usages adjudicated by the TTAB are materially the same as those before the district court, issue preclusion should apply.” Slip op. at 22. There have been immediate suggestions that Patent Trial and Appeal Board findings should likely also have preclusive effect (which seems unremarkable), and also concerns that B&B Hardware suddenly made trademark opposition proceedings more expensive by raising the stakes.

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