In a decision reflecting the increasing importance of adversary proceedings in the Patent and Trademark Office, the Supreme Court held in B&B Hardware, Inc. v. Hargis Indus., Inc., No. 13-352 (U.S. Mar. 24, 2015) that Trademark Trial and Appeal Board decisions regarding likelihood of confusion are binding on district courts, so long as the ordinary elements of issue preclusion are satisfied. Subject to certain exceptions discussed by the Court, a determination regarding likelihood of confusion between two marks by the TTAB during an opposition or cancellation proceeding precludes a district court from deciding the issue of likelihood of confusion of the same marks in a trademark infringement proceeding. Issue preclusion attaches to the administrative agency's ruling even without federal court review and even in cases in which the TTAB may have erred.
Given their potential preclusive effect, TTAB proceedings are an important alternative to district court litigation for trademark confusion issues. This parallels the rise of inter partes review in the PTO, which has become the proceeding of choice for challenging patent validity quickly and at lower cost. As intellectual property disputes are increasingly being fought in the PTO, companies should turn to the expertise of a firm that specializes in intellectual property matters, and has far-reaching experience in matters before all PTO tribunals.