The Dynamic between Federal Courts and the TTAB: A Post-B&B Hardware Analysis

Brendan J. O’Rourke, Lee M. Popkin, and Celia V. Cohen

©2016. Published in Landslide, Vol. 8, No. , March/April 2016, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

By now, the reader is no doubt familiar with the Supreme Court’s landmark decision in B&B Hardware, Inc. v. Hargis Industries, Inc.1 In that decision, the Supreme Court held that likelihood of confusion determinations by the Trademark Trial and Appeal Board (TTAB) may have preclusive effect in infringement litigation. This decision, at a minimum, raised the stakes in TTAB opposition proceedings. But it is also certain to impact other aspects of the relationship between the federal courts and the TTAB. This article examines the B&B Hardware decision and two recent cases that highlight other aspects of the federal court/TTAB dynamic.

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