Amicus Brief

B & B Hardware, Inc. v. Hargis Industries, Inc.

Published: September 26, 2014


U.S. Supreme Court

Our Position

Although preclusion should not apply, district courts should be able to decide whether to give any deference to a prior determination of the Trademark Trial and Appeal Board on individual factors that might be considered in the broader analysis of whether confusion is likely.


The Supreme Court refused to adopt a blanket rule that preclusion should automatically apply, but held that, so long as all other elements of issue preclusion are met, preclusion should apply when the usages adjudicated by the Trademark Trial and Appeal Board are materially the same as those before a district court. In a concurring opinion, Justice Ginsburg observed that preclusion should not apply where the TTAB does not consider use of the mark in the marketplace. Read the decision here.