Petition for Writ of Certiorari Seeks Preclusive Effect of TTAB Decisions

B&B Hardware, Inc. filed, on September 13, 2013, a petition for writ of certiorari with the U.S. Supreme Court, seeking review of the Eight Circuit’s decision in B&B Hardware, Inc. v. Hargis Industries, Inc., 106 USPQ2d 1660 (8th Cir. 2013). B&B had filed suit against Hargis Industries for trademark infringement, following a decision by the Trademark Trial and Appeal Board that Hargis Industries’ trademark application for the mark SEALTITE did, indeed, infringe B&B’s rights in the mark SEALTIGHT. The district court not only did not give the TTAB decision preclusive effect as to the question of likelihood of confusion, but also excluded evidence of that decision before the jury. The Eight Circuit then affirmed the district court’s ruling, based on the fact that the TTAB is not an Article III Court, and therefore it’s decisions are not entitled to preclusive effect. The Eight Circuit further ruled that the TTAB’s decisions are not entitled to deference. B&B now presents the following questions in its petition to the Supreme Court:

1. Whether the TTAB’s finding of a likelihood of confusion precludes Hargis from relitigating that issue in infringement litigation, in which likelihood of confusion is an element. 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.

Source: http://thettablog.blogspot.com/2014/02/certiorari-petition-seeks-clarification.html

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