March 24, 2015
In the Law360 article “Attorneys React To Supreme Court's TTAB Preclusion Ruling,” partner Andrea L. Calvaruso is quoted regarding the recent U.S. Supreme Court ruling that federal court decisions on “likelihood of confusion” can be precluded by earlier findings on the same issue from the Trademark Trial and Appeal Board (TTAB). Ms. Calvaruso says:
The Supreme Court’s decision will not have a practical effect for most litigants, as it affirms the practice of the majority of circuit courts, which apply the ordinary elements of issue preclusion to determine whether to give preclusive effect to TTAB decisions regarding likelihood of confusion. The court’s ruling requires the few circuits that previously would never give preclusive effect to TTAB decisions to follow suit. As this is a highly fact-specific analysis regarding, among other things, whether the same issues were adjudicated, trademark attorneys should carefully consider whether the TTAB or federal court is the best forum for their clients’ likelihood of confusion claims before proceeding too far down the road in the TTAB.
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