What is collateral estoppel? Collateral estoppel may be invoked even where identity of parties is lacking, if the other prerequisites for applying the doctrine are met. This is claim preclusion, or res judicata. Express Co., 14 USPQ2d 1551, 1553 (TTAB 1990) (finding that applicant is barred by collateral estoppel from litigating the issue of descriptiveness or genericness of the proposed mark as used on the services that were the subject of the prior proceeding, but may go forward with respect to use of the mark on other services). Collateral estoppel. is binding in the current claim. 700 Lavaca, Suite 920 Austin, Texas 78701 jray@r-alaw.com (512) 457-9812 State Bar of Texas 24th ANNUAL ADVANCED ADMINISTRATIVE LAW COURSE June 7-8, 2012 Austin CHAPTER 9

Cir. The doctrine of collateral estoppel holds that an issue that has been litigated cannot be litigated again. In this Before beginning with the points of differences it is essential to draw meaning of both these doctrines. I-2-4-40, Res judicata and collateral estoppel apply only to final decisions. Res judicata and issue estoppel exist at the intersection of procedural and substantive law. Those conditions include reversible errors made by the court or the jury in the original trial, and they may be taken before an appellate court. Tysver Beck Evans, Minneapolis, MN 612-915-9633 Cir.

These doctrines are generally discussed below regarding the elements (in the case of collateral estoppel) or the identities (in the case of res judicata) required to support their application. There are two similarly related legal doctrines known as collateral estoppel and res judicata. If a proceeding is pending, the examining attorney may suspend action on the application pending termination, once all other matters are in condition for publication or final refusal. originating with the U.S. Government, including MPEP and TMEP

In the absence of res judicata, the related principle of collateral estoppel, or issue preclusion, can also bar relitigation of the same issue in a second action between the same parties or their privies. No.

Cir. The examining attorney should issue refusals based on res judicata, collateral estoppel, or stare decisis, as appropriate, but should not rely exclusively on such doctrines. In Daimler Chrysler Corp. v. Maydak, 86 USPQ2d 1945, 1950 (TTAB 2008), the Board held that it did not need to decide a collateral estoppel claim where a permanent injunction issued during civil litigation between the parties prohibits the applicant from using or registering the mark for any products or services, therefore, making its registration by the applicant "a legal impossibility.". situation, the ALJ will apply the doctrine of collateral estoppel and 1987), the Board applied collateral estoppel in an opposition proceeding based on a prior judgment in an ex parte proceeding in 1957, because the applicant had appealed the decision to federal district court and, as such, had the opportunity to introduce new evidence and had a "full and fair opportunity" to litigate the issue of functionality. See In re Honeywell Inc., 8 USPQ2d 1600, 1602–03 (TTAB 1988) (finding that res judicata did not preclude application for registration of a configuration of a circular thermostat cover based on prior decisions holding the design functional, where the marks were somewhat different, and the applicant presented evidence that conditions in the marketplace had changed in the seventeen years since the record in its prior application closed); Johanna Farms, 8 USPQ2d at 1411-12 (stating that stare decisis did not preclude registration of LA YOGURT for yogurt under §2(f) based on a prior decision holding the mark unregistrable on the Supplemental Register, where applicant submitted additional evidence in the nature of a survey and consumer letters dealing with the question of how purchasers perceive the proposed mark); Flowers Indus., 5 USPQ2d at 1584 (finding that application for registration of HONEY WHEAT for bread under §2(f) is not precluded by a forty-year old Commissioner’s decision affirming a refusal of registration of the same mark on the same grounds, because the applicant had now used the proposed mark for more than fifty years, whereas its predecessor had used it for only ten years at the time of the earlier decision); Bordo Prods., 188 USPQ at 514 (holding that application for registration of BORDO for pitted dates is not precluded by decision in an opposition by the owner of the cited registration against applicant’s earlier application for the same mark for the same goods due to changed circumstances based on affidavits that the goods move through different channels of trade, evidence of contemporaneous use for over fifty years with no known actual confusion, and failure of the owner of the cited registration to take steps to enjoin applicant from using the mark).

Res judicata does not apply unless the subsequent claim is based on that same set of transactional facts as the prior claim. Res Judicata and Collateral Estoppel. Is collateral estoppel the same thing as res judicata? All these doctrines are discretionary and will not be applied where circumstances relating to trademark use and consumer recognition have changed since the prior judgment was rendered. In re Alfred Dunhill Ltd., 224 USPQ 501, 503 n.7 (TTAB 1984); In re Multivox Corp. of Am., 209 USPQ 627 (TTAB 1981); In re Bordo Prods. All Rights Reserved. This website is produced and published at U.S. taxpayer expense. Changed Circumstances. Res Judicata. Levi Strauss & Co. v. Abercrombie & Fitch Trading Co., 719 F.3d 1367, 1372, 107 USPQ2d 1167, 1171 (Fed. The ALJ will

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