Earlier this year, the Supreme Court announced in B&B Hardware, Inc. v. Hargis Industries that Trademark Trial and Appeal Board decisions are entitled to preclusive effect in later district court litigation, so long as the ordinary elements of issue preclusion are met. The specific question in B&B Hardware—whether the TTAB’s determination on the issue of likelihood of confusion should be accorded preclusive effect—led the Supreme Court to acknowledge that in many cases issue preclusion may not apply because the TTAB typically does not consider the full marketplace usage of the parties’ marks. The Supreme Court, however, provided no guidance regarding the preclusive effect of TTAB decisions on issues other than likelihood of confusion, such as priority, distinctiveness, or abandonment.
