One Year Later: B&B Hardware Update

Attorneys in Barclay Damon's Branding, Trademarks and Copyrights practice group, Jason Nardiello, Eric Galvez, and Liz Cominolli have written an article for Law360, surveying and analyzing relevant district court and Trademark Trial Appeal Board (TTAB) decisions in the year since the Supreme Court's decision in B&B Hardware Inc. v. Hargis Indus., 135 S. Ct. 1293 (2015), which held that TTAB decisions can have a preclusive effect on federal court decisions. Under B&B Hardware, the district courts are applying issue preclusion in a variety of contexts. However, the limits of its reach are also clear given the ability of a litigant to escape a negative, TTAB final decision.

The Barclay Damon authors' analysis shows that far from revolutionizing trademark litigation practice as some had predicted, B&B Hardware's effects are only slowly becoming apparent in federal court trademark litigation. Further, the limits of the Supreme Court decision are now coming into focus. Companies in trademark disputes and with important brands to protect and enforce should monitor the effects of B&B Hardware to track how TTAB and federal court litigation interact and is affected by this decision. An advanced understanding of how trademark rights are treated in both venues could position a company for commercial success.

The article can be found here: 1 Year Since B&B Hardware.