ITC's Trademark Decisions May Have Preclusive Effect, After All

The Federal Circuit recently vacated part of its decision from three months ago, which held that "the Commission's trademark decisions, like its patent decisions, do not have preclusive effect." We reported on that decision here. This issue arose because the ITC did not explicitly consider Swagway's motion for partial termination based on a proposed consent decree in which Swagway agreed to stipulate that its use of the SWAGWAY designation infringed Segway's trademark. Instead, the ALJ issued a Final Initial Determination (ID) after an evidentiary hearing finding infringement by Swagway. In a footnote within the ID, the ALJ indicated that "[a]ny pending motion that has not been adjudicated is denied, unless other-wise noted."