Likelihood of Confusion Preclusion

I was doing some research today and came across B&B Hardware, Inc. v. Hargis Industries, Inc. This case was argued before the Supreme Court on December 2, 2014, little over two months ago. No decisions have been made yet. 

For those of you unfamiliar with this case, the issue in this case was whether TTAB's finding of likelihood of confusion should preclude relitigating that issue in infringement action in an Article III court. If so, whether the district court is obliged to defer to TTAB's finding. 

B&B and Hargis have been at each other's throats for some time. B&B is the owner of SEALTIGHT and Hargis is the owner of SEALTITE. Both companies sell some sort of fasteners. SEALTIGHT was a federally registered mark whereas SEALTITE was pending registration. 

The procedural history is somewhat complex, but here's what happened below the Supreme Court with respect to the likelihood of confusion issue only.

1. B&B petitioned for opposition before TTAB, which found likelihood of confusion in favor of B&B.

2. District Court refused to accord preclusive effect because the findings were made by the TTAB and not affirmed by an Article III court. Jury found no likelihood of confusion.

3. Eighth Circuit affirmed, and refused to apply issue preclusion because the same likelihood of confusion issues were not decided by the TTAB as those brought in the action before the district court. (TTAB applies 13 factor DuPont test and the Eighth Circuit has its own 6 factor test, and only some over lap).

Before the Supreme Court justices, this is what the parties argued.  

Both parties bring compelling arguments. Infringement litigation in an Article III court is certainly different from an opposition proceeding at TTAB. However, both proceedings hinge upon finding "likelihood of confusion." With that said, likelihood of confusion is the same whether you define it in a court setting at a court or in an administrative setting at TTAB. So maybe I'm leaning a little towards the petitioner's side, but this is a really close argument. I'm excited to see how the judgment comes out.