In this long-running trademark dispute, two competing businesses litigated the trademarked names “Sealtight” and “Sealtite.” B&B lost at trial in federal court in Little Rock. Cullen was retained to appeal the verdict to the U.S. Court of Appeals for the 8th Circuit. The 8th Circuit heard oral arguments on April 17, 2012.
At the conclusion of the oral argument, Judge Loken stated it was a complex case that was very well briefed and argued. The main issue on appeal involved whether the trial court erred in excluding a prior decision from the Trademark Trial and Appeal Board in favor of B&B. The three-judge panel issued an opinion on May 1, 2013, affirming the trial court’s exclusion of the TTAB decision, but reversing on the award of attorneys fees.
Judge Colloton authored a pesuasive dissent stating in part:
I reach a different conclusion on the question of collateral estoppel that is raised in this case. Because the Trademark Trial and Appeal Board previously decided the same question about likelihood of confusion that was at issue in the trial of this case, Hargis Industries should not have been permitted to relitigate that point. I would therefore vacate the judgment of the district court and remand for further proceedings.
B&B plans to seek rehearing en banc. Because of divergent opinions from different circuits on this issue, B&B may also seek certiorari.
Here is an article about the decision. http://www.law360.com/appellate/articles/437854