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.