On May 14, 2020, the Supreme Court of the United States issued its decision in Lucky Brand Dungarees v. Marcel Fashions Group, a trademark case that questions whether a litigant can be precluded from raising a defense that it could have asserted, but didn’t, in a previous trademark action against the same opponent. the Court ruled Lucky’s defense was not precluded, because the new lawsuit did not raise the same trademarks and the same conduct. Law.com contacted Finnegan partner Naresh Kilaru for his thoughts on the case.
Justice Sotomayor cautioned that claim preclusion presents particular challenges in the trademark context, as marks and the items accused of infringing them are always evolving over time. Naresh said, “Here, the differences were not minor, but the takeaway people might have is that claim preclusion might never apply.”
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