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No Repose at This B & B? The Supreme Court Weighs Collateral Estoppel from the TTAB

By Jonathan E. Moskin

Jonathan E. Moskin is a partner and intellectual property lawyer with Foley & Lardner LLP. He has acted as lead trial counsel and litigated trademark, copyright and patent cases, contract disputes, privacy matters, false advertising and right of publicity cases in numerous federal, trial and appellate courts.

After 18 years of litigation, including one trademark infringement action in federal court, a cancellation action and an opposition proceeding in the Trademark Trial and Appeal Board (“TTAB”) and then a second trademark infringement action (and three appeals to the Eighth Circuit), the Eighth Circuit refused, in B&B Hardware, Inc. v. Hargis Industries, 716 F.3d 1020 (8th Cir. 2013), to give collateral estoppel effect to the prior TTAB finding that Hargis’s mark SEALTITE for self-drilling and self-tapping screws was likely to be confused with B&B’s mark SEALTIGHT for fasteners used in the aerospace industry. The purpose of collateral estoppel, of course, is to give finality to previously decided issues by preventing their relitigation in a second suit. By ensuring finality, the rule also prevents needless conflict between tribunals asked to adjudicate the same issue. For almost two decades, however, this B&B is one where rest and repose thus far have proven entirely elusive.

The chief issue before the Supreme Court is whether the manner in which the TTAB co...

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