906    Standards Of Review Of Board Decisions

As stated at the outset of this chapter, after the Board determines and decides "the respective rights of registration" under Trademark Act § 17, 15 U.S.C. § 1067, any party dissatisfied with the Board’s decision may seek review of the decision either by appealing to the United States Court of Appeals for the Federal Circuit or by filing a civil action in a federal district court. [ Note 1.]

NOTES:

 1.   Trademark Act § 21, 15 U.S.C. § 1071.

906.01    Appeal To Federal Circuit Or Review By Civil Action

In an appeal to the Federal Circuit, the case proceeds on the closed administrative record and no new evidence is permitted. [ Note 1.] In contrast, an appeal to the district court is both an appeal and a new action, which allows the parties to submit new evidence and, in inter partes cases, to raise additional claims. [ Note 2.]

Questions of fact. In a district court civil action under Trademark Act § 21(b), 15 U.S.C. § 1071(b), the district court’s standard of review for agency fact finding depends on whether new evidence is introduced on a disputed issue of fact. If new evidence is introduced on a disputed question of fact, the district court "must make de novo factual findings that take account of both the new evidence and the administrative record before the PTO" on the issue about which the new evidence is offered. [ Note 3.] In cases where no new evidence is adduced on a disputed factual issue, the district court applies the same deferential APA substantial evidence standard in reviewing the TTAB fact findings on that issue as would the Federal Circuit reviewing the same issue. [ Note 4.] In inter partes cases where additional legal causes of action have been pled, the district court will make its own factual findings as to those additional claims. [ Note 5.]

The degree of deference that the reviewing courts must afford Board’s findings of fact was decided by the U.S. Supreme Court in Dickinson v. Zurko, 527 U.S. 150, 50 USPQ2d 1930 (1999). In that decision, the Supreme Court held that the proper standard of judicial review of findings of fact made by the USPTO is not the traditional "clearly erroneous" standard of review, but rather the "slightly more" deferential standard of the Administrative Procedure Act (APA), 5 U.S.C. § 706(2). [ Note 6.] Thus, whether a party elects direct review by the Federal Circuit or initiates a new action in the district court, the APA standard of review should be applied to the Board’s fact-finding. [ Note 7.]

The Supreme Court did not decide which of the two standards of review under APA § 706(2), 5 U.S.C. §§ 706(2)(A) and (E), the "arbitrary, capricious" test under APA §§ 706(2) and 706(2)(A) or the "substantial evidence" test under § 706(2)(E), should be applied. [ Note 8.] Of the two tests, the Federal Circuit has determined that the "substantial evidence" standard is the appropriate standard of review for USPTO findings of fact. [ Note 9.] A number of circuit courts of appeals have also indicated that "substantial evidence" review is appropriate. [ Note 10.]

The substantial evidence standard requires the reviewing court to ask whether a reasonable person might accept that the evidentiary record supports the agency’s conclusion. [ Note 11.] Considered to be less deferential than the "arbitrary, capricious" standard of the APA, "substantial evidence" requires a stricter judicial review of agency fact-finding. [ Note 12.] A review for substantial evidence "involves examination of the record as a whole, taking into account evidence that both justifies and detracts from an agency’s decision." [ Note 13.] Moreover, "the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence." [ Note 14.] "Where two different conclusions may be warranted based on the evidence of record, the Board’s decision to favor one conclusion over the other is the type of decision that must be sustained by this court as supported by substantial evidence." [ Note 15.] Substantial evidence is "‘more than a mere scintilla’ and ‘such relevant evidence as a reasonable mind would accept as adequate’ to support a conclusion." [ Note 16.]

Examples of findings of fact include abandonment [ Note 17.]; functionality [ Note 18.]; descriptiveness [ Note 19.]; whether trade dress is product design [ Note 20.]; whether an asserted mark is generic [ Note 21.]; whether the later version of a mark creates the same continuing commercial impression [ Note 22.]; whether applicant had a bona fide intent to use the mark in commerce [ Note 23.]; whether a mark is merely descriptive or generic [ Note 24.]; and priority/ownership. [ Note 25.]

Conclusions of law. While the Board’s findings of fact are reviewed for substantial evidence, conclusions of law are reviewed de novo. [ Note 26.]

Examples of legal conclusions that receive de novo review include whether the Board properly granted summary judgment or a motion to dismiss, and whether it was proper for the Board to consider certain types of evidence. [ Note 27.] The U.S. Court of Appeals for the Federal Circuit treats the issue of likelihood of confusion as a question of law, based on underlying factual determinations. [ Note 28.]

The Board’s interpretations of the Trademark Act are legal determinations, but under general principles of administrative law, courts have given deference to the Board’s reasonable interpretations of the statute the agency is charged with administering. [ Note 29.] "Substantial deference" is given to the USPTO's interpretation of its own regulations. [ Note 30.]

Collateral Estoppel effect. In B & B Hardware, Inc. v. Hargis Industries, Inc., 135 S. Ct. 1293, 113 USPQ2d 2045, 2048 (2015), the Supreme Court held that issue preclusion can be based on a decision by the Trademark Trial and Appeal Board in an inter partes case in which the ordinary elements of issue preclusion are met. [ Note 31.] The District Court for the Eastern District of Virginia, citing B&B Hardware, gave preclusive effect to a TTAB decision that found the defendant had committed fraud. [ Note 32.] Similarly, in an infringement case, the District Court for Maryland gave preclusive effect to a TTAB decision concerning priority. [ Note 33.]

NOTES:

 1.   Trademark Act § 21(a)(4), 15 U.S.C. § 1071(a)(4).

 2.   See Swatch AG v. Beehive Wholesale, LLC, 739 F.3d 150, 109 USPQ2d 1291, 1295 (4th Cir. 2014) (when an inter partes Board decision is challenged by filing a civil action in district court, the parties have the right to submit further evidence and additional claims); Autodesk, Inc. v. Lee, 113 USPQ2d 1161, 1162 (E.D. Va. 2014) (where new evidence is submitted in civil action under § 1071(b), court "reviews the record de novo and acts as the finder of fact based on the entire record"), appeal withdrawn (4th Cir. Jan. 28, 2015); CAE Inc. v. Clean Air Engineering Inc., 267 F.3d 660, 60 USPQ2d 1449, 1458 (7th Cir. 2001) (appeal from district court's review of Board’s finding of no likelihood of confusion, and from district court's decision on added claims of infringement, unfair competition and dilution).

 3.   See Swatch AG v. Beehive Wholesale, LLC, 739 F.3d 150, 109 USPQ2d 1291, 1295 (4th Cir. 2014) ("[W]here new evidence is presented to the district court on a disputed fact question, a de novo finding will be necessary to take such evidence into account together with the evidence before the board") (internal citations omitted). See also Kappos v. Hyatt, 132 S. Ct. 1690, 1701, 102 USPQ2d 1337 (2012) (interpreting 35 U.S.C. § 145). Although Kappos v. Hyatt concerned a district court civil action under 35 U.S.C. § 145 challenging the USPTO’s rejection of a patent application, the Court’s holding on this point applies to district court civil actions challenging refusals to register trademarks because of the relationship and similarities between 35 U.S.C. § 145 and 15 U.S.C. § 1071 (b). Prior to 1962, the Lanham Act incorporated the patent review procedures in 35 U.S.C. § 145. In 1962, Congress revised 15 U.S.C. § 1071 (b), to incorporate "with necessary changes in language, the various provisions of title 35 relating to such appeals and review." See S. Rep. No. 87-2107 (1962), 1962 U.S.C.C.A.N. 2844, 2850.

 4.   See CAE Inc. v. Clean Air Engineering Inc., 267 F.3d 660, 60 USPQ2d 1449, 1458 (7th Cir. 2001).

 5.   See Swatch AG v. Beehive Wholesale, LLC, 739 F.3d 150, 109 USPQ2d 1291, 1295 (4th Cir. 2014) ("The district court has authority independent of the PTO to . . . decide any related matters such as infringement and unfair competition claims."); CAE Inc. v. Clean Air Engineering Inc., 267 F.3d 660, 60 USPQ2d 1449, 1458 (7th Cir. 2001).

 6.   See CAE Inc. v. Clean Air Engineering Inc., 267 F.3d 660, 60 USPQ2d 1449, 1458 (7th Cir. 2001) (quoting Dickinson v. Zurko, 527 U.S. 150, 165, 50 USPQ2d 1930 (1999)).

 7.   Dickinson v. Zurko, 527 U.S. 150, 50 USPQ2d 1930, 1936 (TTAB 1999) (rejecting the argument that the "two paths" for review would create "an anomaly" in the standard of review). See Pro-Football Inc. v. Harjo, 284 F. Supp. 2d 96, 68 USPQ2d 1225, 1239 (D.D.C. 2003) (district court review of Board decision is "commensurate with the ‘substantial evidence’ standard of review articulated in the APA."), remanded, 415 F.3d 44, 75 USPQ2d 1525 (D.C. Cir. 2005), aff’d, 565 F.3d 880, 90 USPQ2d 1593 (D.C. Cir. 2009), cert. denied, 130 S. Ct. 631 (2009).

 8.   5 U.S.C. §§ 706(2)(A) and (E). See In re Gartside, 203 F.3d 1305, 53 USPQ2d 1773, 1773 (Fed. Cir. 2000).

 9.   In re TriVita, Inc., 783 F.3d 872, 114 USPQ2d 1574, 1576 (Fed. Cir. 2015) (Substantial evidence supports Board’s findings); In re Louisiana Fish Fry Products, Ltd., 797 F.3d 1332, 116 USPQ2d 1262, 1264 (Fed. Cir. 2015) (Board’s factual determinations are reviewed for substantial evidence); Couture v. Playdom, Inc., 778 F.3d 1379, 113 USPQ2d 2042, 2043 (Fed. Cir. 2015), cert. denied, 136 S. Ct. 88 (2015); Coach Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1716 (Fed. Cir. 2012); In re Gartside, 203 F.3d 1305, 53 USPQ2d 1773, 1775 (Fed. Cir. 2000). See also Aycock Engineering Inc. v. Airflite Inc., 560 F.3d 1350, 90 USPQ2d 1301, 1304 (Fed. Cir. 2009) ("Substantial evidence is ‘more than a mere scintilla’ and ‘such relevant evidence as a reasonable mind would accept as adequate to support a conclusion.’ [internal cites omitted]"); On-line Careline Inc. v. America Online Inc., 229 F.3d 1080, 56 USPQ2d 1471, 1475 (Fed. Cir. 2000) ("The substantial evidence standard requires the reviewing court to ask whether a reasonable person might find that the evidentiary record supports the agency’s conclusion.").

 10.   See CAE Inc. v. Clean Air Engineering Inc., 267 F.3d 660, 60 USPQ2d 1449, 1459 (7th Cir. 2001). See also In re Gartside, 203 F.3d 1305, 53 USPQ2d 1773, 1775 (Fed. Cir. 2000).

 11.   Jack Wolfskin Ausrustung Fur Draussen GmbH v. New Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1133 (Fed. Cir. 2015), cert. denied, 136 S. Ct. 982 (2016); In re Gartside, 203 F.3d 1305, 53 USPQ2d 1773, 1775 (Fed. Cir. 2000), (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229-30 (1938) ("substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.... Mere uncorroborated hearsay or rumor does not constitute substantial evidence."); Dickinson v. Zurko, 527 U.S. 150, 165, 50 USPQ2d 1930 (1999).

 12.   In re Gartside, 203 F.3d 1305, 53 USPQ2d 1773, 1775 (Fed. Cir. 2000) (the "arbitrary, capricious" standard of review is the most deferential of the APA standards of review).

 13.   In re Gartside, 203 F.3d 1305, 53 USPQ2d 1773, 1775 (Fed. Cir. 2000).

 14.   In re Gartside, 203 F.3d 1305, 53 USPQ2d 1773, 1775 (Fed. Cir. 2000) (quoting Consolo v. Federal Maritime Commission, 383 U.S. 607, 620 (1966)).

 15.   In re Bayer Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828, 1836 (Fed. Cir. 2007) (citing In re Jolley, 308 F.3d 1317, 64 USPQ2d 1901, 1904 (Fed. Cir. 2002)).

 16.   In re i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017) (quoting Consolidated Edison v. NLRB, 305 U.S. 197, 229 (1938)); In re N.C. Lottery, 866 F.3d 1363, 123 USPQ2d 1707, 1709 (Fed. Cir. 2017); Coach Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1716 (Fed. Cir. 2012) (quoting Consolidated Edison v. NLRB, 305 U.S. 197, 229 (1938)); Juice Generation, Inc. v. GS Enterprises, LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1674 (Fed. Cir. 2015) (substantial evidence is more than a mere scintilla, but is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion); Princeton Vanguard, LLC v. Frito-Lay North America, Inc., 786 F.3d 960, 114 USPQ2d 1827, 1829 (Fed. Cir. 2015), original decision aff’d, Frito-Lay North America v. Princeton Vanguard, LLC, 124 USPQ2d 1184 (TTAB 2017), on appeal sub nom Snyder’s Lance, Inc. v. Frito-Lay North America, Inc., No 3:17-CV-00652 (W.D.N.C. November 6, 2017); In re Mouttet, 686 F.3d 1322, 1331 (Fed. Cir. 2012) ("Substantial evidence is something less than the weight of the evidence but more than a mere scintilla of evidence.") (citation omitted).

 17.   On-line Careline Inc. v. America Online Inc., 229 F.3d 1080, 56 USPQ2d 1471, 1476 (Fed. Cir. 2000) (abandonment is a question of fact).

 18.   Valu Engineering Inc. v. Rexnord Corp., 278 F.3d 1268, 61 USPQ2d 1422, 1424 (Fed. Cir. 2002) (functionality is a question of fact).

 19.   In re TriVita, Inc., 783 F.3d 872, 114 USPQ2d 1574, 1575 (Fed. Cir. 2015) ("The Board's determination that a mark is merely descriptive is a factual finding that is reviewed for support by substantial evidence."); Towers v. Advent Software Inc., 913 F.2d 942, 16 USPQ2d 1039, 1040 (Fed. Cir. 1990) (descriptiveness is a question of fact). See also In re Chippendales USA, 622 F.3d 1346, 96 USPQ2d 1681, 1684 (Fed. Cir. 2010) ("The issue of inherent distinctiveness is a factual determination made by the Board.") (quoting Hoover Co. v. Royal Appliances Mfg. Co., 238 F.3d 1357, 1359, 57 USPQ2d 1720 (Fed. Cir. 2001)); In re Oppedahl & Larson LLP, 373 F.3d 1171, 71 USPQ2d 1370, 1371 (Fed. Cir. 2004) ("The Board’s placement of a mark on the fanciful-suggestive-descriptive-generic continuum is a question of fact, which this court reviews for substantial evidence."); In re Compagnie Generale Maritime, 993 F.2d 841, 845, 26 USPQ2d 1652, 1654 (Fed. Cir. 1993) ("Whether a mark is primarily geographically descriptive or deceptively misdescriptive is a question of fact.").

 20.   In re Slokevage, 441 F.3d 957, 78 USPQ2d 1395, 1397 (Fed. Cir. 2006) (similar to question of descriptiveness, issue of whether trade dress is product design is question of fact, as is inquiry into whether mark is unitary).

 21.   In re Louisiana Fish Fry Products, Ltd., 797 F.3d 1332, 116 USPQ2d 1262, 1264 (Fed. Cir. 2015); Princeton Vanguard, LLC v. Frito-Lay North America, Inc., 786 F.3d 960, 114 USPQ2d 1827, 1829 (Fed. Cir. 2015), original decision aff’d, Frito-Lay North America v. Princeton Vanguard, LLC, 124 USPQ2d 1184 (TTAB 2017), on appeal sub nom Snyder’s Lance, Inc. v. Frito-Lay North America, Inc., No 3:17-CV-00652 (W.D.N.C. November 6, 2017).

 22.   Jack Wolfskin Ausrustung Fur Draussen GmbH v. New Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1133 (Fed. Cir. 2015), cert. denied, 136 S. Ct. 982 (2016) (noting Supreme Court’s holding in Hana Financial, Inc. v. Hana Bank, 135 S. Ct. 907 (2015), in connection with a priority dispute, that "same continuing commercial impression" is a question of fact," Federal Circuit no longer treats this question as a question of law subject to de novo review; therefore substantial evidence standard applies to continuing commercial impression in determining both priority and abandonment).

 23.   M.Z. Berger & Co. v. Swatch AG, 787 F.3d 1368, 114 USPQ2d 1892, 1893 (Fed. Cir. 2015).

 24.   Earnhardt v. Kerry Earnhardt, Inc., 864 F.3d 1374, 123 USPQ2d 1411, 1413 (Fed. Cir. 2017) ("The [PTO's] placement of a mark on the fanciful-suggestive-descriptive-generic continuum is a question of fact, which this court reviews for substantial evidence.") (quoting In re Oppedahl & Larson LLP, 373 F.3d 1171, 71 USPQ2d 1370 (Fed. Cir. 2004)).

 25.   Lyons v. American College of Veterinary Sports Medicine & Rehabilitation, 859 F.3d 1023, 123 USPQ2d 1024, 1030 (Fed. Cir. 2017) (Board’s findings regarding disputed ownership of mark were supported by substantial evidence).

 26.   In re N.C. Lottery, 866 F.3d 1363, 123 USPQ2d 1707, 1709 (Fed. Cir. 2017) (Federal Circuit reviews conclusions of law de novo); In re i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017) (Board’s findings of fact are reviewed for substantial evidence; conclusions of law are reviewed de novo); Lyons v. American College of Veterinary Sports Medicine & Rehabilitation, 859 F.3d 1023, 123 USPQ2d 1024, 1026-27 (Fed. Cir. 2017) (same); In re Louisiana Fish Fry Products, Ltd., 797 F.3d 1332, 116 USPQ2d 1262, 1264 (Fed. Cir. 2015) (Federal Circuit reviews Board’s legal conclusions de novo); Princeton Vanguard, LLC v. Frito-Lay North America, Inc., 786 F.3d 960, 114 USPQ2d 1827, 1829 (Fed. Cir. 2015) (whether Board applied correct legal standard in assessing a mark for genericness is question of law that Court reviews de novo), original decision aff’d, Frito-Lay North America v. Princeton Vanguard, LLC, 124 USPQ2d 1184 (TTAB 2017), on appeal sub nom Snyder’s Lance, Inc. v. Frito-Lay North America, Inc., No 3:17-CV-00652 (W.D.N.C. November 6, 2017); Couture v. Playdom, Inc., 778 F.3d 1379, 113 USPQ2d 2042, 2043 (Fed. Cir. 2015), cert. denied, 136 S. Ct. 88 (2015); Coach Services Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1716 (Fed. Cir. 2012) ("We review the Board’s legal conclusions de novo …) (citing In re Pacer Tech., 338 F.3d 1348, 1349, 67 USPQ2d 1629 (Fed. Cir. 2003)); On-line Careline Inc. v. America Online Inc., 229 F.3d 1080, 56 USPQ2d 1471, 1475 (Fed. Cir. 2000); Glendale International Corp. v. USPTO, 374 F. Supp. 2d 479, 75 USPQ2d 1139, 1143 (E.D. Va. 2005).

 27.   See In re N.C. Lottery, 866 F.3d 1363, 123 USPQ2d 1707, 1709 (Fed. Cir. 2017) (Board did not err as matter of law by considering explanatory text of specimens in concluding that applicant's "First Tuesday" mark in connection with lottery services and games is merely descriptive of applicant’s goods and services); Herbko International Inc. v. Kappa Books Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1377 (Fed. Cir. 2002) (conclusions of law are reviewed without deference, and on grant of summary judgment, court must decide for itself whether moving party has shown that it is entitled to judgment as a matter of law); Sunrise Jewelry Mfg. Corp. v. Fred, S.A., 175 F.3d 1322, 50 USPQ2d 1532, 1534 (Fed. Cir. 1999) (whether Board properly granted defendant’s motion to dismiss is a question of law that is reviewed "independently"); Spraying Systems Co. v. Delavan Inc., 975 F.2d 387, 24 USPQ2d 1181, 1184 (7th Cir. 1992) (Board’s grant of summary judgment is reviewed de novo).

 28.   See In re i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017) ("Likelihood of confusion is a question of law based on underlying findings of fact.") (citing In re Chatam International, Inc., 380 F.3d 1340, 71 USPQ2d 1944 (Fed. Cir. 2004)); Juice Generation, Inc. v. GS Enterprises, LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1674 (Fed. Cir. 2015) (conclusion regarding a likelihood of confusion is a question of law that the Federal Circuit reviews de novo, although underlying factual findings are reviewed for substantial evidence); In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1259 (Fed. Cir. 2010) ("The Board’s legal conclusion receives plenary review, while the factors relevant to likelihood of confusion are reviewed for support by substantial evidence, in accordance with the criteria of the Administrative Procedure Act."); Palm Bay Imports Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005); In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003).

 29.   See ITC Ltd. v. Punchgini, Inc., 482 F.3d 135, 159, 82 USPQ2d 1414, 1429 (2nd Cir. 2007) (under general principles of administrative law deference is due to the Board’s interpretation of the statute the agency is charged with administering); Star Industries Inc. v. Bacardi & Co. Ltd., 412 F.3d 373, 75 USPQ2d 1098, 1102 n.2 (2nd Cir. 2005); International Bancorp, LLC v. Societe des Bains de Mer et du Cercle des Etrangers a Monaco, 329 F.3d 359, 66 USPQ2d 1705, 1719-20 (4th Cir. 2003); In re Hacot-Colombier, 105 F.3d 616, 41 USPQ2d 1523, 1525 (Fed. Cir. 1997) ("[T]his court defers to the agency’s reasonable statutory interpretation."); Eastman Kodak Co. v. Bell & Howell Document Management Prods., Co., 994 F.2d 1569, 26 USPQ2d 1912, 1915-16 (Fed. Cir. 1993) (applying Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) to a decision of the Board, which is treated as if it were the "agency," and holding the Board’s interpretation of an ambiguous provision of the trademark statute reasonable, rather than undertaking a de novo interpretation of law); Kohler Co. v. Moen Inc., 12 F.3d 632, 634, 29 USPQ2d 1231, 1243 (7th Cir. 1993) (affording Chevron deference to the Board’s interpretation of the Lanham Act). But see In re Save Venice New York Inc., 259 F.3d 1346, 59 USPQ2d 1778, 1781 (Fed. Cir. 2001) (validity of the Board’s adaptation of the related goods test to geographic marks is a question of law that is reviewed de novo); In re International Flavors & Fragrances, Inc., 183 F.3d 1361, 51 USPQ2d 1513, 1515 (Fed. Cir. 1999).

 30.   See Custom Computer Services Inc. v. Paychex Properties Inc., 337 F.3d 1334, 67 USPQ2d 1638, 1639 (Fed. Cir. 2003).

 31.   Accord MaxLinear, Inc. v. CF Crespe LLC, 880 F.3d 1373, 125 USPQ2d 1577, 1579 (Fed. Cir. 2018) ("B & B Hardware is particularly relevant here, as the Court held that ‘issue preclusion should apply’ to the final written decision of the Trademark Trial and Appeal Board (" TTAB "). … The TTAB , at issue in B & B Hardware, and [PTAB] in this case, are indistinguishable for preclusion purposes."); Cesari S.r.L. v. Peju Province Winery L.P., No. 17-873, 2017 WL 6509004, (S.D.N.Y. Dec. 11, 2017) (court discusses issue and claim preclusion, and applies B&B Hardware to grant partial summary judgment on likelihood of confusion in infringement case).

 32.   Nationstar Mortgage, LLC v. Ahmad, 155 F. Supp. 3d 585, 592-93 (E.D. Va. 2015) (citing Nationstar Mortgage, LLC v. Ahmad, 112 UPQ2d 1361 (TTAB 2014)), appeal dismissed, No. 16-1422 (4th Cir. July 13, 2016).

 33.   Ashe v. The PNC Financial Services Group, Inc., 165 F.Supp.3d 357 (D. Md. 2015).

906.02    Petition To Director

In reviewing non-final rulings of the Board, the Director will exercise supervisory authority under 37 C.F.R. §  2.146(a)(3)  and reverse the Board’s ruling only where there is a clear error or abuse of discretion. [ Note 1.]

NOTES:

 1.   See In re Sasson Licensing Corp., 35 USPQ2d 1510, 1511 (Comm’r 1995); Huffy Corp. v. Geoffrey Inc., 18 USPQ2d 1240, 1242 (Comm’r 1990); Paolo's Associates Ltd. Partnership v. Bodo, 21 USPQ2d 1899, 1902 (Comm’r 1990).