Less than three years ago, the United States Supreme Court
issued its decision in B&B Hardware, Inc. v. Hargis
Industries, Inc., 135 S. Ct. 1293 (2015), holding that so long
as other ordinary elements of issue preclusion are met, when the
usages adjudicated by the Trademark Trial and Appeal Board are
materially the same as those before the district court, issue
preclusion should apply.
As a reminder, the elements of issue preclusion are (1) that the
issues in both proceedings are identical, (2) the issue in the
earlier proceeding was fully litigated and decided, (3) there was a
full and fair opportunity for litigation in the prior proceeding,
and (4) the issue decided was necessary to support a valid and
final judgment on the merits. When all elements are present, the
earlier decision of the issue precludes re-litigation of it in the
later proceeding.
