The Implications Of B&B Hardware: Profound Shift, Or Narrow Exception, For Litigants?

In a case that has received considerable attention in trademark circles, the U.S. Supreme Court in March ruled that Trademark Trial and Appeal Board (TTAB) decisions on likelihood of confusion are entitled to preclusive effect in later district court infringement litigation. Specifically, the Court in B&B Hardware, Inc. v. Hargis Industries, Inc. ruled that TTAB decisions are entitled to preclusive effect so long as the "ordinary elements" of issue preclusion are met. The seven-to-two decision authored by Justice Alito was a setback for some practitioners who had urged the Court to adopt a bright-line rule that TTAB findings on likelihood of confusion do not have a preclusive effect on subsequent district court litigations. In its amicus brief, the International Trademark Association (INTA) warned that failing to adopt this rule could result in "a substantial negative effect on the now-straightforward administrative proceedings before the TTAB." INTA explained that in