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What Trademark Law Could Learn From Employment Law, 12 J. Marshall Rev. Intell. Prop. L. Rev. 118 (2012), Robert A. Kearney

UIC Review of Intellectual Property Law

Trademark litigation is as unpredictable as it is expensive. The Trademark Trial and Appeal Board (“Board”) considers as many as thirteen different factors when evaluating whether a trademark causes a “likelihood of confusion.” Federal courts use many of the same factors, though which factors are chosen differ by jurisdiction, and, do not necessarily overlap with the Board. Further, a party can litigate for a time before the Board, then in federal court, and then back before the Board. And, if this were not enough, the Board’s decisions have little if any preclusive effect on the court, and, a court’s decision …