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.
Reposted from SCOTUSblog.