Supreme Court’s Inclination Unclear in Trademark Preclusion Case

SCOTUSblog posts a lengthy and detailed first-hand analysis of Tuesday’s oral arguments before the Supreme Court in the pending trademark case of B&B Hardware, Inc. v. Hargis Industries, Inc., No. 13-352.  As discussed in an earlier post here, the case examines the issues of (1) whether the [Trademark Trial and Appeal Board’s] finding of a likelihood of confusion precludes [a defendant] from relitigating that issue in infringement litigation, in which likelihood of confusion is an element; and (2) whether, if issue preclusion does not apply, the district court was obliged to defer to the TTAB’s finding of a likelihood of confusion absent strong evidence to rebut it.  In other words, the Court is ruling on the preclusive effect, if any, that a likelihood of confusion determination by the USPTO has on a subsequent district court action for trademark infringement.  While court watchers have long claimed the ability to predict a case’s outcome by the number and tone of the Justices’ questions, the post’s author confesses to having “no strong intuition about how the Justices will decide this case,” other than a prediction that “the Justices will regard the case as a close one” that will be “won at the argument.”  Read the full article here, and the transcript of Tuesday’s oral arguments here.

 By Steve Petteway, Collection of the Supreme Court of the United States (Roberts Court (2010-) - The Oyez Project) [Public domain], via Wikimedia Commons.

By Steve Petteway, Collection of the Supreme Court of the United States (Roberts Court (2010-) - The Oyez Project) [Public domain], via Wikimedia Commons.

Reposted from SCOTUSblog.