After the Supreme Court’s recent decision in B&B Hardware, Inc. v. Hargis Industries, Inc., the impact and propriety of allowing TTAB decisions to preclude litigation has been widely discussed. But preclusion, the doctrine addressed in B&B, is not the only equitable doctrine of which trademark owners must be mindful when a mark is involved in successive proceedings; the doctrine of judicial estoppel can also effectively bar claims and issues.
Like issue preclusion, an underlying policy goal of judicial estoppel is to promote efficiency and consistency. Unlike issue preclusion, however, it typically operates against a party that prevails on a particular position. In sum, it bars parties from playing “fast and loose” by presenting a position inconsistent with one previously advanced, simply because it’s now advantageous to do so.
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