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Articles

Confusion Over Likelihood of Confusion

January 17, 2014

Articles

Confusion Over Likelihood of Confusion

January 17, 2014

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What happens when the Trademark Trial and Appeal Board (TTAB) of the USPTO finds that two trademarks are confusingly similar – is that finding binding on a court in subsequent litigation?  Not according to the 8th Circuit Court of Appeals in B & B Hardware, Inc. v. Hargis Indus., Inc., 716 F.3d 1020 (8th Cir. 2013). There, the court concluded that a finding of likelihood of confusion by the TTAB  does not preclude re-litigating the same issue later in federal court because the TTAB and courts apply different tests and consider different facts. The plaintiff in that case, B &B Hardware, asked the Supreme Court to take up the issue. This week, in considering whether to hear the case, the U.S. Supreme Court asked the Justice Department to weigh in. My recent comments to IP Law360 can be found here.

This is a blog post that originally appeared on Fish’s Litigation blog. This blog covers developments and trends in nationwide litigation and can be viewed here.

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