text:
Rousey v. Jacoway/Opinion of the Court

Justice THOMAS delivered the opinion of the Court.

The Bankruptcy Code permits debtors to exempt certain property from the bankruptcy estate, allowing them to retain those assets rather than divide them among their creditors. 11 U.S.C. § 522. The question in this case is whether debtors can exempt assets in their Individual Retirement Accounts (IRAs) from the bankruptcy estate pursuant to § 522(d)(10)(E). We hold that IRAs can be so exempted.

I
Petitioners Richard and Betty Jo Rousey were formerly employed at Northrup Grumman Corp. At the termination of their employment, Northrup Grumman required them to take lump-sum distributions from their employer-sponsored pension plans. In re Rousey, 283 B.R. 265, 268 (Bkrtcy. App. Panel CA8 2002); Brief for Petitioners 2. The Rouseys deposited the lump sums into two IRAs, one in each of their names. 283 B.R., at 268.

The Rouseys' accounts qualify as IRAs under a number of requirements imposed by the Internal Revenue Code. Each account is "a trust created or organized in the United States for the exclusive benefit of an individual or his beneficiaries." 26 U.S.C. § 408(a) (2000 ed. and Supp. II). The Internal [p323] Revenue Code limits the types of assets in which IRA-holders may invest their accounts, §§ 408(a)(3), (a)(5), and provides that the balance in IRAs is nonforfeitable, § 408(a)(4). It also caps yearly contributions to IRAs. § 408(o)(2). Withdrawals made before the accountholder turns 59½ are, with limited exceptions, subject to a 10-percent tax penalty. § 72(t).

IRA contributions receive favorable tax treatment. In particular, the Internal Revenue Code generally defers taxation of the money placed in IRAs and the income earned from those sums until the assets are withdrawn. See § 219(a) (contributions to IRAs are tax deductible); § 408(e)(1) (IRA is tax exempt). Moreover, within a certain timeframe accountholders can, as the Rouseys did here, roll over distributions received from other retirement plans. § 408(a)(1). The Internal Revenue Code encourages such rollovers by making them nontaxable. §§ 408(d)(3), 402(c)(1), 403(b)(8), and 457(e)(16).

The Rouseys' IRA agreements, as well as relevant regulations, provide that their "entire interest in the custodial account must be, or begin to be, distributed by" April 1 following the calendar yearend in which they reach age 70½. In re Rousey, 275 B.R. 307, 310 (Bkrtcy. Ct. WD Ark. 2002). The IRA agreements permit withdrawal prior to age 59½, but note the federal tax penalties applicable to such distributions. Id., at 311.

Several years after establishing their IRAs, the Rouseys filed a joint Chapter 7 bankruptcy petition in the United States Bankruptcy Court for the Western District of Arkansas. In the schedules and statements accompanying their petition, the Rouseys sought to shield portions of their IRAs from their creditors by claiming them as exempt from the bankruptcy estate pursuant to 11 U.S.C. § 522(d)(10)(E). This exemption provides that a debtor may withdraw from the bankruptcy estate his "right to receive—

[p324] "(E) a payment under a stock bonus, pension, profitsharing, annuity, or similar plan or contract on account of illness, disability, death, age, or length of service, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor "

The Bankruptcy Court appointed respondent Jill R. Jacoway as the Chapter 7 Trustee. As Trustee, Jacoway is responsible for overseeing the liquidation of the bankruptcy estate and the distribution of the proceeds. She objected to the Rouseys' claim for the exemption of their IRAs and moved for turnover of those sums to her. The Bankruptcy Court sustained Jacoway's objection and granted her motion. 275 B.R., at 309.

The Rouseys appealed. The Bankruptcy Appellate Panel (BAP) agreed with the Bankruptcy Court that the Rouseys could not exempt their IRAs under § 522(d)(10)(E). It concluded that the IRAs were not similar plan[s] or contract[s] to stock bonus, pension, profitsharing, or annuity plans, because, by contrast to the limited access permitted in such plans, the Rouseys had "unlimited access" to the funds held in their IRAs. 283 B.R., at 272. That access also meant, the BAP reasoned, that the Rouseys had complete control over the funds in their IRAs, "subject only to a ten percent tax penalty." Id., at 273. Because they had such control, the payments from the IRAs were not "on account of any factor listed in 11 U.S.C. § 522(d)(10)(E)." Ibid.

The Rouseys again appealed, and the Court of Appeals for the Eighth Circuit affirmed. The Court of Appeals concluded that, even if the Rouseys' IRAs were similar plans or contracts to stock bonus, pension, profitsharing, or annuity plans, their IRAs gave them no right to receive payment on account of age. In re Rousey, 347 F.3d 689, 693 (2003). Like the BAP, the Court of Appeals reasoned that [p325] the Rouseys' right to payment was conditioned neither on age nor on any of the other statutory factors. Their IRAs were instead "readily accessible savings accounts of which the debtors may easily avail themselves (albeit with some discouraging tax consequences) at any time for any purpose." Ibid. The Court of Appeals recognized that several of its sister Circuits had reached a contrary result. Ibid. See In re Brucher, 243 F.3d 242, 243–244 (CA6 2001); In re McKown, 203 F.3d 1188, 1190 (CA9 2000); In re Dubroff, 119 F.3d 75, 78 (CA2 1997); In re Carmichael, 100 F.3d 375, 378 (CA5 1996).

We granted certiorari to resolve this division among the Courts of Appeals regarding whether debtors can exempt IRAs from the bankruptcy estate under 11 U.S.C. § 522(d)(10)(E). 541 U.S. 1085 (2004).

II
As a general matter, upon the filing of a petition for bankruptcy, "all legal or equitable interests of the debtor in property" become the property of the bankruptcy estate and will be distributed to the debtor's creditors. § 541(a)(1). To help the debtor obtain a fresh start, the Bankruptcy Code permits him to withdraw from the estate certain interests in property, such as his car or home, up to certain values. See, e.g., § 522(d); United States v. Security Industrial Bank, 459 U.S. 70, 72, n.1 (1982). In this case, the Rouseys claimed their IRAs as exempt under § 522(d)(10)(E). Under the terms of the statute, see supra, at 323–324, the Rouseys' right to receive payment under their IRAs must meet three requirements to be exempted under this provision: (1) The right to receive payment must be from "a stock bonus, pension, profitsharing, annuity, or similar plan or contract"; (2) the right to receive payment must be "on account of illness, disability, death, age, or length of service"; and (3) even then, the right to receive payment may be exempted only [p326] "to the extent" that it is "reasonably necessary [to] support" the accountholder or his dependents. § 522(d)(10)(E).

The dispute in this case is whether the Rouseys' IRAs fulfill the first and second requirements. This Court implied that IRAs like the Rouseys' satisfy both elements in Patterson v. Shumate, 504 U.S. 753 (1992). There, in construing another section of the Bankruptcy Code, this Court stated that IRAs could be exempted pursuant to § 522(d)(10)(E). Id., at 762–763, 112 S.Ct. 2242 ("Although a debtor's interest [in an IRA] could not be excluded under § 541(c)(2) that interest nevertheless could be exempted under § 522(d)(10)(E)" (footnote omitted)). We now reaffirm that statement and conclude that IRAs can be exempted from the bankruptcy estate pursuant to § 522(d)(10)(E).

A
We turn first to the requirement that the payment be "on account of illness, disability, death, age, or length of service." Ibid. We have interpreted the phrase "on account of" elsewhere within the Bankruptcy Code to mean "because of," thereby requiring a causal connection between the term that the phrase "on account of" modifies and the factor specified in the statute at issue. ''Bank of America Nat. Trust and Sav. Assn. v. 203 North LaSalle Street Partnership'', 526 U.S. 434, 450–451 (1999). In reaching that conclusion, we noted that "because of" was "certainly the usage meant for the phrase at other places in the [bankruptcy] statute," including the provision at issue here—§ 522(d)(10)(E). Ibid. This meaning comports with the common understanding of "on account of." See, e.g., Random House Dictionary of the English Language 13 (2d ed. 1987) (listing as definitions "by reason of," "because of"); Webster's Third New International Dictionary 13 (1981) (hereinafter Webster's 3d) (same). The context of this provision does not suggest that Congress deviated from the term's ordinary meaning. Thus, "on account of" in § 522(d)(10)(E) requires that the right to receive [p327] payment be "because of " illness, disability, death, age, or length of service.

Jacoway argues that the Rouseys' right to receive payment from their IRAs is not "because of" these listed factors. In particular, she asserts that the Rouseys can withdraw funds from their IRAs for any reason at all, so long as they are willing to pay a 10-percent penalty. Thus, Jacoway maintains that there is no causal connection between the Rouseys' right to payment and age (or any other factor), because their IRAs provide a right to payment on demand.

We disagree. The statutes governing IRAs persuade us that the Rouseys' right to payment from IRAs is causally connected to their age. Their right to receive payment of the entire balance is not in dispute. Because their accounts qualify as IRAs under 26 U.S.C. § 408(a) (2000 ed. and Supp. II), the Rouseys have a nonforfeitable right to the balance held in those accounts, § 408(a)(4). That right is restricted by a 10-percent tax penalty that applies to withdrawals from IRAs made before the accountholder turns 59½. Contrary to Jacoway's contention, this tax penalty is substantial. The deterrent to early withdrawal it creates suggests that Congress designed it to preclude early access to IRAs. The low rates of early withdrawals are consistent with the notion that this penalty substantially deters early withdrawals from such accounts. Because the 10-percent penalty applies proportionally [p328] to any amounts withdrawn, it prevents access to the 10 percent that the Rouseys would forfeit should they withdraw early, and thus it effectively prevents access to the entire balance in their IRAs. It therefore limits the Rouseys' right to "payment" of the balance of their IRAs. And because this condition is removed when the accountholder turns age 59½, the Rouseys' right to the balance of their IRAs is a right to payment "on account of" age. The Rouseys no more have an unrestricted right to payment of the balance in their IRAs than a contracting party has an unrestricted right to breach a contract simply because the price of doing so is the payment of damages. Accordingly, [p329] we conclude that the Rouseys' IRAs provide a right to payment on account of age.

B
In addition to requiring that the IRAs provide a right to payment "on account of" age or one of the other factors listed in the statute, 11 U.S.C. § 522(d)(10)(E) also requires the Rouseys' IRAs to be "stock bonus, pension, profitsharing, annuity, or similar plan[s] or contract[s]." No party contends that the Rouseys' IRAs are stock bonus, pension, profitsharing, or annuity plans or contracts. The issue, then, is whether the Rouseys' IRAs are "similar plan[s] or contract[s]" within the meaning of § 522(d)(10)(E). To be "similar," an IRA must be like, though not identical to, the specific plans or contracts listed in § 522(d)(10)(E), and consequently must share characteristics common to the listed plans or contracts. See American Heritage Dictionary of the English Language 1206 (1981) (hereinafter Am. Hert.); Webster's 3d 2120.

The Rouseys contend that IRAs are "similar" to stock bonus, pension, profitsharing, or annuity plans or contracts, in that they have the same "primary purpose," namely, "enabl[ing] Americans to save for their retirement." Reply Brief for Petitioners 13. Jacoway counters that IRAs are unlike the listed plans because those plans provide "deferred compensation," Brief for Respondent 22, whereas IRAs allow complete access to deposited funds and are therefore not deferred at all, id., at 22–24. We agree with the Rouseys that IRAs are similar to the plans specified in the statute. Those plans, like the Rouseys' IRAs, provide a substitute for wages (by wages, for present purposes, we mean compensation earned as hourly or salary income), and are not mere savings accounts. The Rouseys' IRAs are therefore [p330] "similar plan[s] or contract[s]" within the meaning of § 522(d)(10)(E).

We turn first to the characteristics the specific plans and contracts listed in § 522(d)(10)(E) share. The Bankruptcy Code does not define the terms "profitsharing," "stock bonus," "pension," or "annuity." Accordingly, we look to the ordinary meaning of these terms. United States v. LaBonte, 520 U.S. 751, 757 (1997); Perrin v. United States, 444 U.S. 37, 42 (1979). A "profitsharing" plan, of course, is "[a] system by which employees receive a share of the profits of a business enterprise." Am. Hert. 1045. Profitsharing plans may provide deferred compensation, but they may also be "cash plans" in which a predetermined percentage of the profits is distributed to employees at set intervals. J. Langbein & B. Wolk, Pension and Employee Benefit Law 48 (3d ed. 2000). A stock bonus plan is like a profitsharing plan, except that it distributes company stock rather than cash from profits. Id., at 49. A pension is defined as "a fixed sum paid under given conditions to a person following his retirement from service (as due to age or disability) or to the surviving dependents of a person entitled to such a pension." Webster's 3d 1671. Finally, an annuity is "an amount payable yearly or at other regular intervals for a certain or uncertain period (as for years, for life, or in perpetuity)." Id., at 88.

[p331] The common feature of all of these plans is that they provide income that substitutes for wages earned as salary or hourly compensation. This understanding of the plans' similarities comports with the other types of payments that a debtor may exempt under § 522(d)(10)—all of which concern income that substitutes for wages. See, e.g., § 522(d)(10)(A) ("social security benefit, unemployment compensation, or a local public assistance benefit"); § 522(d)(10)(B) ("a veterans' benefit"); § 522(d)(10)(C) ( "disability, illness, or unemployment benefit"); § 522(d)(10)(D) ("alimony, support, or separate maintenance"). But the plans are dissimilar in other respects: Employers establish and contribute to stock bonus, profitsharing, and pension plans or contracts, whereas an individual can establish and contribute to an annuity on terms and conditions he selects. Moreover, pension plans and annuities provide deferred payment, whereas profitsharing or stock bonus plans may or may not provide deferred payment. And while a pension provides retirement income, none of these other plans necessarily provides retirement income. What all of these plans have in common is that they provide income that substitutes for wages.

Several considerations convince us that the income the Rouseys will derive from their IRAs is likewise income that substitutes for wages. First, the minimum distribution requirements, as discussed above, require distribution to begin at the latest in the calendar year after the year in which the accountholder turns 70½. Thus, accountholders must begin to withdraw funds when they are likely to be retired and lack wage income. Second, the Internal Revenue Code defers taxation of money held in accounts qualifying as IRAs under 26 U.S.C. § 408(a) (2000 ed. and Supp. II) until the year in which it is distributed, treating it as income only in such years. §§ 219, 408(e) (2000 ed. and Supp. II). This tax treatment further encourages accountholders to wait until [p332] retirement to withdraw the funds: The later withdrawal occurs, the longer the taxes on the amounts are deferred. Third, absent the applicability of other exceptions discussed above, withdrawals before age 59½ are subject to a tax penalty, restricting preretirement access to the funds. Finally, to ensure that the beneficiary uses the IRA in his retirement years, an accountholder's failure to take the requisite minimum distributions results in a 50-percent tax penalty on funds improperly remaining in the account. § 4974(a). All of these features show that IRA income substitutes for wages lost upon retirement and distinguish IRAs from typical savings accounts.

We find unpersuasive Jacoway's contention that the IRAs cannot be similar plans or contracts because the Rouseys have complete access to them. At bottom, this contention rests, as did her "on account of" argument, on the premise that the tax penalty imposed for early withdrawal is modest and hence not a true limit on the withdrawal of funds. As explained above, however, that penalty erects a substantial barrier to early withdrawal. Supra, at 327–328. Funds in a typical savings account, by contrast, can be withdrawn without age-based penalty.

We also reject Jacoway's argument that the availability of IRA withdrawals exempt from the 10-percent penalty renders the Rouseys' IRAs more like savings accounts. While Jacoway is correct that the Internal Revenue Code permits penalty-free early withdrawals in certain limited circumstances, 26 U.S.C. § 72(t)(2), these exceptions do not reduce the IRAs to savings accounts.

The exceptions are narrow. For example, penalty-free early distributions for health insurance premiums are limited to unemployed individuals who have received unemployment compensation for at least 12 consecutive weeks and have taken those distributions during the same year in which the unemployment compensation is made. § 72(t)(2)(D). These payments are further limited to the actual amount paid for [p333] insurance for the accountholder, his spouse, and his dependents. § 72(t)(2)(D)(iii). The Internal Revenue Code likewise caps the amount of, and sets qualifications for, both the higher education expenses and first-time home purchases for which penalty-free early distributions can be taken. §§ 72(t)(2)(E), 72(t)(7) (higher education expenses); §§ 72(t)(2)(F), 72(t)(8) (home purchases). The Internal Revenue Code also permits penalty-free distributions to a beneficiary on the death of the accountholder or in the event that the accountholder becomes disabled. §§ 72(t)(2)(A)(ii)–(iii).

These exceptions are limited in amount and scope. Even with these carveouts, an early withdrawal without penalty remains the exception, rather than the rule. And as we explained in discussing the "on account of" requirement, withdrawals from other retirement plans receive similar tax treatment.

Our conclusion that the Rouseys' IRAs can be exempt under 11 U.S.C. § 522(d)(10)(E) finds support in clauses (i)–(iii) of § 522(d)(10)(E). These clauses bring into the estate certain rights to payment that otherwise would be exempt under § 522(d)(10)(E). They provide that a right to receive payment cannot be exempt if:

"(i) such plan or contract was established by or under the auspices of an insider that employed the debtor at [p334] the time the debtor's rights under such plan or contract arose;

"(ii) such payment is on account of age or length of service; and

"(iii) such plan or contract does not qualify under section 401(a), 403(a), 403(b) or 408 of the Internal Revenue Code of 1986."

Thus, clauses (i)–(iii) preclude the debtor from using this exemption if an insider established his plan or contract; the right to receive payment is on account of age or length of service; and the plan does not qualify under the specified Internal Revenue Code sections, including the section that governs IRAs, 26 U.S.C. § 408 (2000 ed. and Supp. II).

As a general matter, it makes little sense to exclude from the exemption plans that fail to qualify under § 408, unless all plans that do qualify under § 408, including IRAs, are generally within the exemption. If IRAs were not within 11 U.S.C. § 522(d)(10)(E), Congress would not have referred to them in its exception. McKown, 203 F.3d, at 1190. More specifically, clause (iii) suggests that plans qualifying under 26 U.S.C. § 408 (2000 ed. and Supp. II), including IRAs, are similar plans or contracts. The other sections of the Internal Revenue Code cited in clause (iii)—§§ 401(a), 403(a), and 403(b)—all establish requirements for tax-qualified retirement plans that take the form of, among other things, annuities, profitsharing plans, and stock bonus plans. By grouping § 408 with these other plans that are of the specific types listed in subparagraph (E), clause (iii) suggests that IRAs are similar to them. Thus, the text of these clauses not only suggests generally that the Rouseys' IRAs are exempt, but also supports our conclusion that they are "similar plan[s] or contract[s]" under 11 U.S.C. § 522(d)(10)(E).

In sum, the Rouseys' IRAs fulfill both of § 522(d)(10)(E)'s requirements at issue here—they confer a right to receive [p335] payment on account of age, and they are similar plans or contracts to those enumerated in § 522(d)(10)(E). The judgment of the Court of Appeals is therefore reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

title: Rousey v. Jacoway/Opinion of the Court


text:
Page:Self-help with illustrations of conduct and perseverance (IA selfhelpwithillu00smiliala).pdf/64

of the most strongly-marked features of the English people is their spirit of industry, standing out prominent and distinct in their past history, and as strikingly characteristic of them now as at any former period. It is this spirit, displayed by the commons of England, which has laid the foundations and built up the industrial greatness of the empire. This vigorous growth of the nation has been mainly the result of the free energy of individuals, and it has been contingent upon the number of hands and minds from time to time actively employed within it, whether as cultivators of the soil, producers of articles of utility, contrivers of tools and machines, writers of books, or creators of works of art. And while this spirit of active industry has been the vital principle of the nation, it has also been its saving and remedial one, counteracting from time to time the effects of errors in our laws and imperfections in our constitution.

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


text:
Thornburg v. Gingles

In 1982, the North Carolina General Assembly enacted a legislative redistricting plan for the State's Senate and House of Representatives. Appellees, black citizens of North Carolina who are registered to vote, brought suit in Federal District Court, challenging one single-member district and six multimember districts on the ground, inter alia, that the redistricting plan impaired black citizens' ability to elect representatives of their choice in violation of § 2 of the Voting Rights Act of 1965. After appellees brought suit, but before trial, § 2 was amended, largely in response to Mobile v. Bolden, 446 U.S. 55 to make clear that a violation of § 2 could be proved by showing discriminatory effect alone, rather than having to show a discriminatory purpose, and to establish as the relevant legal standard the "results test." Section 2(a), as amended, prohibits a State or political subdivision from imposing any voting qualifications or prerequisites to voting, or any standards, practices, or procedures that result in the denial or abridgment of the right of any citizen to vote on account of race or color. Section 2(b), as amended, provides that § 2(a) is violated where the "totality of circumstances" reveals that "the political processes leading to nomination or election... are not equally open to participation by members of a [protected class]... in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice," and that the extent to which members of a protected class have been elected to office is one circumstance that may be considered. The District Court applied the "totality of circumstances" test set forth in § 2(b) and held that the redistricting plan violated § 2(a) because it resulted in the dilution of black citizens' votes in all of the disputed districts. Appellants, the Attorney General of North Carolina and others, took a direct appeal to this Court with respect to five of the multimember districts.

Held: The judgment is affirmed in part and reversed in part.

590 F. Supp. 345, affirmed in part and reversed in part.

JUSTICE BRENNAN delivered the opinion of the Court with respect to Parts I, II, III-A, III-B, IV-A, and V, concluding that:

 * 1. Minority voters who contend that the multimember form of districting violates § 2 must prove that the use of a multimember electoral structure operates to minimize or cancel out their ability to elect their preferred candidates. While many or all of the factors listed in the Senate Report may be relevant to a claim of vote dilution through submergence in multimember districts, unless there is a conjunction of the following circumstances, the use of multimember districts generally will not impede the ability of minority voters to elect representatives of their choice. Stated succinctly, a bloc voting majority must usually be able to defeat candidates supported by a politically cohesive, geographically insular minority group. The relevance of the existence of racial bloc voting to a vote dilution claim is twofold: to ascertain whether minority group members constitute a politically cohesive unit and to determine whether whites vote sufficiently as a bloc usually to defeat the minority's preferred candidate. Thus, the question whether a given district experiences legally significant racial bloc voting requires discrete inquiries into minority and white voting practices. A showing that a significant number of minority group members usually vote for the same candidates is one way of proving the political cohesiveness necessary to a vote dilution claim, and consequently establishes minority bloc voting within the meaning of § 2. And, in general, a white bloc vote that normally will defeat the combined strength of minority support plus white "crossover" votes rises to the level of legally significant white bloc voting. Because loss of political power through vote dilution is distinct from the mere inability to win a particular election, a pattern of racial bloc voting that extends over a period of time is more probative of a claim that a district experiences significant polarization than are the results of a single election. In a district where elections are shown usually to be polarized, the fact that racially polarized voting is not present in one election or a few elections does not necessarily negate the conclusion that the district experiences legally significant bloc voting. Furthermore, the success of a minority candidate in a particular election does not necessarily prove that the district did not experience polarized voting in that election. Here, the District Court's approach, which tested data derived from three election years in each district in question, and which revealed that blacks strongly supported black candidates, while, to the black candidates' usual detriment, whites rarely did, satisfactorily addresses each facet of the proper standard for legally significant racial bloc voting. Pp. 52-61.

 * 2. The language of § 2 and its legislative history plainly demonstrate that proof that some minority candidates have been elected does not foreclose a § 2 claim. Thus, the District Court did not err, as a matter of law, in refusing to treat the fact that some black candidates have succeeded as dispositive of appellees' § 2 claims. Where multimember districting generally works to dilute the minority vote, it cannot be defended on the ground that it sporadically and serendipitously benefits minority voters. Pp. 74-76.

 * 3. The clearly-erroneous test of Federal Rule of Civil Procedure 52(a) is the appropriate standard for appellate review of ultimate findings of vote dilution. As both amended § 2 and its legislative history make clear, in evaluating a statutory claim of vote dilution through districting, the trial court is to consider the "totality of circumstances" and to determine, based upon a practical evaluation of the past and present realities, whether the political process is equally open to minority voters. In this case, the District Court carefully considered the totality of the circumstances and found that in each district racially polarized voting; the legacy of official discrimination in voting matters, education, housing, employment, and health services; and the persistence of campaign appeals to racial prejudice acted in concert with the multimember districting scheme to impair the ability of geographically insular and politically cohesive groups of black voters to participate equally in the political process and to elect candidates of their choice. Pp. 77-79.

JUSTICE BRENNAN, joined by JUSTICE MARSHALL, JUSTICE BLACKMUN, and JUSTICE STEVENS, concluded in Part III-C that for purposes of § 2, the legal concept of racially polarized voting, as it related to claims of vote dilution—that is, when it is used to prove that the minority group is politically cohesive and that white voters will usually be able to defeat the minority's preferred candidates—refers only to the existence of a correlation between the race of voters and the selection of certain candidates. Plaintiffs need not prove causation or intent in order to prove a prima facie case of racial bloc voting, and defendants may not rebut that case with evidence of causation or intent. Pp. 61-73.

JUSTICE BRENNAN, joined by JUSTICE WHITE, concluded in Part IV-B, that the District Court erred, as a matter of law, in ignoring the significance of the sustained success black voters have experienced in House District 23. The persistent proportional representation for black residents in that district in the last six elections is inconsistent with appellees' allegation that black voters' ability in that district to elect representatives of their choice is not equal to that enjoyed by the white majority. P. 77.

JUSTICE O'CONNOR, joined by THE CHIEF JUSTICE, JUSTICE POWELL, and JUSTICE REHNQUIST, concluded that:

 * 1. Insofar as statistical evidence of divergent racial voting patterns is admitted solely to establish that the minority group is politically cohesive and to assess its prospects for electoral success, such a showing cannot be rebutted by evidence that the divergent voting patterns may be explained by causes other than race. However, evidence of the reasons for divergent voting patterns can in some circumstances be relevant to the overall vote dilution inquiry, and there is no rule against consideration of all evidence concerning voting preferences other than statistical evidence of racial voting patterns. Pp. 100-101.

 * 2. Consistent and sustained success by candidates preferred by minority voters is presumptively inconsistent with the existence of a § 2 violation. The District Court erred in assessing the extent of black electoral success in House District 39 and Senate District 22, as well as in House District 23. Except in House District 23, despite these errors the District Court's ultimate conclusion of vote dilution is not clearly erroneous. But in House District 23 appellees failed to establish a violation of § 2. Pp. 101-105.

BRENNAN, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III-A, III-B, IV-A, and V, in which WHITE, MARSHALL, BLACKMUN, and STEVENS, JJ., joined, an opinion with respect to Part III-C, in which MARSHALL, BLACKMUN, and STEVENS, JJ., joined, and an opinion with respect to Part IV-B, in which WHITE, J., joined. WHITE, J., filed a concurring opinion, post, p. 82. O'CONNOR, J., filed an opinion concurring in the judgment, in which BURGER, C.J., and POWELL and REHNQUIST, JJ., joined, post, p. 83. STEVENS, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL AND BLACKMUN, JJ., joined, post, p. 106.

Lacy H. Thornburg, Attorney General of North Carolina, pro se, argued the cause for appellants. With him on the briefs were Jerris Leonard, Kathleen Heenan McGuan, James Wallace, Jr., Deputy Attorney General for Legal Affairs, and Tiare B. Smiley and Norma S. Harrell, Assistant Attorneys General.

Solicitor General Fried argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Assistant Attorney General Reynolds and Deputy Assistant Attorney General Cooper.

Julius LeVonne Chambers argued the case for appellees. With him on the briefs for appellees Gingles et al. were Eric Schnapper, C. Lani Guinier, and Leslie J. Winner. C. Allen Foster, Kenneth J. Gumbiner, Robert N. [p34] Hunter Jr., and Arthur J. Donaldson filed briefs for appellees Eaglin et al.

title: Thornburg v. Gingles


text:
B&B Hardware, Inc. v. Hargis Industries, Inc.

Respondent Hargis Industries, Inc. (Hargis), tried to register its trademark for SEALTITE with the United States Patent and Trademark Office pursuant to the Lanham Act. Petitioner, B&B Hardware, Inc. (B&B), however, opposed registration, claiming that SEALTITE is too similar to B&B's own SEALTIGHT trademark. The Trademark Trial and Appeal Board (TTAB) concluded that SEALTITE should not be registered because of the likelihood of confusion. Hargis did not seek judicial review of that decision.

Later, in an infringement suit before the District Court, B&B argued that Hargis was precluded from contesting the likelihood of confusion because of the TTAB's decision. The District Court disagreed. The Eighth Circuit affirmed, holding that preclusion was unwarranted because the TTAB and the court used different factors to evaluate likelihood of confusion, the TTAB placed too much emphasis on the appearance and sound of the two marks, and Hargis bore the burden of persuasion before the TTAB while B&B bore it before the District Court.

Held: So long as the other ordinary elements of issue preclusion are met, when the usages adjudicated by the TTAB are materially the same as those before a district court, issue preclusion should apply. Pp. 147–160.

(a) An agency decision can ground issue preclusion. The Court's cases establish that when Congress authorizes agencies to resolve disputes, “courts may take it as given that Congress has legislated with the expectation that [issue preclusion] will apply except when a statutory purpose to the contrary is evident.” ''Astoria Fed. Sav. & Loan Assn. v. Solimino'', 501 U.S. 104, 108. Constitutional avoidance does not compel a different conclusion. Pp. 147–151.

(b) Neither the Lanham Act's text nor its structure rebuts the “presumption” in favor of giving preclusive effect to TTAB decisions where the ordinary elements of issue preclusion are met. Astoria, 501 U.S., at 108. This case is unlike Astoria. There, where exhausting the administrative process was a prerequisite to suit in court, giving preclusive effect to the agency's determination in that very administrative process could have rendered the judicial suit “strictly pro forma.” [p139] Id., at 111. By contrast, registration involves a separate proceeding to decide separate rights. Pp. 151–153.

(c) There is no categorical reason why registration decisions can never meet the ordinary elements of issue preclusion. That many registrations will not satisfy those ordinary elements does not mean that none will. Pp. 153–160.

(1) Contrary to the Eighth Circuit's conclusion, the same likelihood-of-confusion standard applies to both registration and infringement. The factors that the TTAB and the Eighth Circuit use to assess likelihood of confusion are not fundamentally different, and, more important, the operative language of each statute is essentially the same.

Hargis claims that the standards are different, noting that the registration provision asks whether the marks “resemble” each other, 15 U.S.C. § 1052(d), while the infringement provision is directed towards the “use in commerce” of the marks, § 1114(1). That the TTAB and a district court do not always consider the same usages, however, does not mean that the TTAB applies a different standard to the usages it does consider. If a mark owner uses its mark in materially the same ways as the usages included in its registration application, then the TTAB is deciding the same likelihood-of-confusion issue as a district court in infringement litigation. For a similar reason, the Eighth Circuit erred in holding that issue preclusion could not apply because the TTAB relied too heavily on “appearance and sound.” Pp. 154–158.

(2) The fact that the TTAB and district courts use different procedures suggests only that sometimes issue preclusion might be inappropriate, not that it always is. Here, there is no categorical “reason to doubt the quality, extensiveness, or fairness,” Montana v. United States, 440 U.S. 147, 164, n.11, of the agency's procedures. In large part they are exactly the same as in federal court. Also contrary to the Eighth Circuit's conclusion, B&B, the party opposing registration, not Hargis, bore the burden of persuasion before the TTAB, just as it did in the infringement suit. Pp. 158–159.

(3) Hargis is also wrong that the stakes for registration are always too low for issue preclusion in later infringement litigation. When registration is opposed, there is good reason to think that both sides will take the matter seriously. Congress' creation of an elaborate registration scheme, with many important rights attached and backed up by plenary review, confirms that registration decisions can be weighty enough to ground issue preclusion. Pp. 159–160.

716 F.3d 1020, reversed and remanded.

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C.J., and KENNEDY, GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. [p140] GINSBURG, J., filed a concurring opinion, post, p. 160. THOMAS, J., filed a dissenting opinion, in which SCALIA, J., joined, post, p. 161.

William M. Jay argued the cause for petitioner. With him on the briefs were Jacob R. Osborn, Robert D. Carroll, Ira J. Levy, and Tim Cullen.

John F. Bash argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Verrilli, Assistant Attorney General Delery, Deputy Solicitor General Stewart, Mark K. Freeman, Sydney Foster, and Scott C. Weidenfeller.

Neal Kumar Katyal argued the cause for respondent Hargis Industries, Inc. With him on the brief were Catherine E. Stetson, Mary Helen Wimberly, James C. Martin, and Colin E. Wrabley.


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 men and many minds. Mankind at large are all the happier for such inventions, and are every day reaping the benefit of them in an increase of individual well-being as well as of public enjoyment.

Though the invention of the working steam-engine—the king of machines—belongs, comparatively speaking, to our own epoch, the idea of it was born many centuries ago. Like other contrivances and discoveries, it was effected step by step—one man transmitting the result of his labours, at the time apparently useless, to his successors, who took it up and carried it forward another stage,—the prosecution of the inquiry extending over many generations. Thus the idea promulgated by Hero of Alexandria was never altogether lost; but, like the grain of wheat hid in the hand of the Egyptian mummy, it sprouted and again grew vigorously when brought into the full light of modern science. The steam-engine was nothing, however, until it emerged from the state of theory, and was taken in hand by practical mechanics; and what a noble story of patient, laborious investigation, of difficulties encountered and overcome by heroic industry, does not that marvellous machine tell of! It is indeed, in itself, a monument of the power of self-help in man. Grouped around it we find Savary, the military engineer; Newcomen, the Dartmouth blacksmith; Cawley, the glazier; Potter, the engine-boy; Smeaton, the civil engineer; and, towering above all, the laborious, patient, never-tiring James Watt, the mathematical-instrument maker.

Watt was one of the most industrious of men; and the story of his life proves, what all experience


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 young women, for the purpose of securing their long tresses; and it is said that in negotiations of this sort he was very successful. He also dealt in a chemical hair dye, which he used adroitly, and thereby secured a considerable trade. But he does not seem, notwithstanding his pushing character, to have done more than earn a bare living.

The fashion of wig-wearing having undergone a change, distress fell upon the wig-makers; and Arkwright, being of a mechanical turn, was consequently induced to turn machine inventor or "conjurer," as the pursuit was then popularly termed. Many attempts were made about that time to invent a spinning-machine, and our barber determined to launch his little bark on the sea of invention with the rest. Like other self-taught men of the same bias, he had already been devoting his spare time to the invention of a perpetual-motion machine; and from that the transition to a spinning-machine was easy. He followed his experiments so assiduously that he neglected his business, lost the little money he had saved, and was reduced to great poverty. His wife—for he had by this time married—was impatient at what she conceived to be a wanton waste of time and money, and in a moment of sudden wrath she seized upon and destroyed his models, hoping thus to remove the cause of the family privations. Arkwright was a stubborn and enthusiastic man, and he was provoked beyond measure by this conduct of his wife, from whom he immediately separated.

In travelling about the country, Arkwright had become acquainted with a person named Kay, a clockmaker at Warrington, who assisted him in


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On September 6, 2023, the Select Committee on Strategic Competition between the United States and the Chinese Communist Party (“Select Committee”) issued its first subpoena as part of its ongoing investigation into the illegal facility that local authorities uncovered in Reedley, California. The subpoena, signed by the Chairman with an on-site visit by the Select Committee’s Chief Investigative Counsel and two investigative staffers, uncovered thousands of pages of documents, hundreds of photographs, and hours of video. This evidence, alongside interviews of local officials and other investigative steps, revealed troubling gaps in federal pathogen safeguards. These gaps allowed a wanted fugitive from Canada, who is a PRC national who had previously stolen millions of dollars of American intellectual property, to operate an illegal facility that contained “thousands of vials of potentially infectious agents” in Reedley, California.

The Select Committee engaged in this investigation based on public requests and expressions of concern from both Republican and Democratic Members of Congress and in coordination with Congressman Jim Costa, who represents the district where Reedley is located. After the Select Committee issued the subpoena, Congressman Costa stated, “It is my hope that we work in a bipartisan, coordinated manner to fully understand the scope of this lab and prevent any future labs like this one from operating illegally in our communities.” The Select Committee shares these goals and drafted this report, in part, as an essential step towards accomplishing them.

title: Page:Scc-reedley-report-11.15.pdf/5


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 warp, being chiefly made in that town and its neighbourhood. It was then customary—previous to the introduction of the factory system—for industrious yeomen with families to employ the time not occupied in the fields in weaving at home; and Robert Peel accordingly began the domestic trade of calico-making. He was honest, and made an honest article; thrifty and hardworking, and his trade prospered. He was also enterprising, and was one of the first to adopt the carding cylinder, then recently invented.

But Robert Peel's attention was principally directed to the printing of calico,—then a comparatively unknown art,—and for some time he carried on a series of experiments with the object of printing by machinery. The experiments were secretly conducted in his own house, the cloth being ironed for the purpose by one of the women of the family. It was then customary, in such houses as the Peels', to use pewter plates for dinner. Having sketched a figure or pattern on one of the plates, the thought struck him that an impression might be got from it in reverse, and printed on calico with colour. In a cottage at the end of the farm-house lived a woman who kept a calendering machine, and going into her cottage, he put the plate with colour rubbed into the figured part and some calico over it, through the machine, when it was found to leave a satisfactory impression. Such is said to have been the origin of roller-printing on calico. Robert Peel shortly perfected his process, and the first pattern he brought out was a parsley leaf; hence he is spoken of in the neighbourhood of Blackburn to this day as "Parsley Peel." The process of calico-printing


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 715–17] The Azd were his enemies all through, and he had deeply offended Temīm. Fighting thus with but a scanty following, he was slain, and his head, with those of eleven of his brethren, sent a welcome offering to the Caliph. And so the conqueror of Bokhārā, Samarķand, and Kāshghār, came to an untimely and dishonoured end. It was said of him by a Turk, Ḳoteiba at the world's end was more terrible to us than Yezīd at our very door. He had been one of the greatest heroes of Islām, were not his name stained by treachery and bloodshed, and his career cut short by a heedless rebellion.

Yezīd son of Al-Muhallab, the Caliph's minion, was at first appointed to Al-ʿIrāḳ, but unwilling to incur unpopularity in collecting the severe assessments of Al-Ḥajjāj, which barely sufficed for the now lavish expenditure at Damascus, he obtained the nomination of a financial officer to undertake the ungrateful task. He was Ṣāliḥ ibn ʿAbd ar-Raḥmān, the Maulà of Sijistān, who had procured the change of language in the government offices. Finding, however, the exchequer thus closed against his own extravagance, Yezīd prevailed on the Caliph, by the vain boast that his conquests would cast Ḳoteiba's into the shade, to give him Khorāsān. With him, the Azd again come to power, and Temīm take second rank. He also introduced Syrian government troops into Khorāsān, a thing which Al-Ḥajjāj had not done. Arriving at Merv nearly a year after the outbreak of Ḳoteiba, he felt bound to make good his boast; and casting aside his luxuries, took the lead of an immense army, recruited chiefly from Syria and Al-ʿIrāḳ. His efforts were directed to Jurjān, on the south-eastern recess of the Caspian Sea, which, as we have seen, had been overrun by Saʿīd ibn al-ʿĀṣ so long ago as the reign of ʿOthmān. But though tributary in name, the native rulers, conscious of their strength, were ever withholding payment of their dues, and no one dared to set foot within that inaccessible and rebellious region, This region formed a barrier to communication between Al-ʿIrāḳ and Merv, and a southern circuit had consequently to be made by troops and travellers for Central Asia. It was therefore an important object to reduce the intervening space. Starting from Merv, Yezīd first attacked Jurjān; and its defenders were driven back into their defiles, where, after suffering much hardship, they came to terms. Here


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 Eeyore walked all round Tigger one way, and then turned and walked all round him the other way.

“What did you say it was?” he asked.

“Tigger.”

“Ah!” said Eeyore.

“He’s just come,” explained Piglet.

“Ah!” said Eeyore again.

He thought for a long time and then said:

“When is he going?”

Pooh explained to Eeyore that Tigger was a great friend of Christopher Robin’s, who had come to stay in the Forest, and Piglet explained to Tigger that he mustn’t mind what Eeyore said because he was always gloomy; and Eeyore explained to Piglet that, on the contrary, he was feeling particularly cheerful this morning; and Tigger explained to anybody who was listening that he hadn’t had any breakfast yet.

“I knew there was something,” said Pooh. “Tiggers always eat thistles, so that was why we came to see you, Eeyore.”

“Don’t mention it, Pooh.”

“Oh, Eeyore, I didn’t mean that I didn’t want to see you”

“Quite—quite. But your new stripy friend—naturally, he wants his breakfast. What did you say his name was?”


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366 Yezīd gave first proof that he might vie with Ḳoteiba in cruelty as well as conquest; for although all who had made terms were spared, the country was ravaged, innumerable captives taken, and multitudes slain in cold blood. Leaving 4000 in Jurjān, he marched south-west to Ṭabaristān, where the Prince, notwithstanding help from Jīlān and the Deilem, was discomfited and driven into the hills. Thither the Muslims following were drawn within dangerous defiles, whence, severely punished, they were pursued again into the plain. This reverse encouraged the men of Jurjān, breaking their treaty, to fall upon the garrison, and slay them to a man. Alarmed at his rear being thus cut off from Merv, Yezīd made peace with Ṭabaristān; and turning back again to Jurjān, swore a great oath (similar to that of Khālid) that he would not stay his sword till he had eaten bread of corn ground by the blood of his enemies. The city, strongly planted on an eminence, held out for seven months, and then fell into the hands of the inhuman conqueror, who, butchering thousands of his victims in an adjoining valley, turned the stream upon a mill that overlooked the ghastly scene, and so fulfilled his oath. He also lined the approaches to the city on the right hand and on the left, for miles, with impaled bodies. Yezīd returning to Merv, reported his success to the Caliph, and with a vainglorious boast magnified the booty into an enormous sum, such as would have yielded four million dirhems for the fifth.

To counterbalance the victories in Central Asia, Suleimān had the mortification of finding the vast preparations made to storm Constantinople useless. Shortly before his death, Al-Welīd had fitted out a fleet to attack the Byzantine capital by sea, while columns from Armenia and Asia Minor co-operated by land. Everything appeared to favour the project. Rebellion at home had paralysed the Greek power, while the disloyalty of Leo the Isaurian, who joined hands with Maslama the Caliph's brother in command, afforded the


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B&B Hardware, Inc. v. Hargis Industries, Inc./Opinion of the Court

JUSTICE ALITO delivered the opinion of the Court.

Sometimes two different tribunals are asked to decide the same issue. When that happens, the decision of the first tribunal usually must be followed by the second, at least if the issue is really the same. Allowing the same issue to be decided more than once wastes litigants' resources and adjudicators' time, and it encourages parties who lose before one tribunal to shop around for another. The doctrine of collateral estoppel or issue preclusion is designed to prevent this from occurring.

This case concerns the application of issue preclusion in the context of trademark law. Petitioner, B&B Hardware, [p141] Inc. (B&B), and respondent Hargis Industries, Inc. (Hargis), both use similar trademarks; B&B owns SEALTIGHT while Hargis owns SEALTITE. Under the Lanham Act, 60 Stat. 427, as amended, 15 U.S.C. § 1051 et seq., an applicant can seek to register a trademark through an administrative process within the United States Patent and Trademark Office (PTO). But if another party believes that the PTO should not register a mark because it is too similar to its own, that party can oppose registration before the Trademark Trial and Appeal Board (TTAB). Here, Hargis tried to register the mark SEALTITE, but B&B opposed SEALTITE's registration. After a lengthy proceeding, the TTAB agreed with B&B that SEALTITE should not be registered.

In addition to permitting a party to object to the registration of a mark, the Lanham Act allows a mark owner to sue for trademark infringement. Both a registration proceeding and a suit for trademark infringement, more-over, can occur at the same time. In this case, while the TTAB was deciding whether SEALTITE should be registered, B&B and Hargis were also litigating the SEALTIGHT versus SEALTITE dispute in federal court. In both registration proceedings and infringement litigation, the tribunal asks whether a likelihood of confusion exists between the mark sought to be protected (here, SEALTIGHT) and the other mark (SEALTITE).

The question before this Court is whether the District Court in this case should have applied issue preclusion to the TTAB's decision that SEALTITE is confusingly similar to SEALTIGHT. Here, the Eighth Circuit rejected issue preclusion for reasons that would make it difficult for the doctrine ever to apply in trademark disputes. We disagree with that narrow understanding of issue preclusion. Instead, consistent with principles of law that apply in innumerable contexts, we hold that a court should give preclusive effect to TTAB decisions if the ordinary elements of issue [p142] preclusion are met. We therefore reverse the judgment of the Eighth Circuit and remand for further proceedings.

A
Trademark law has a long history, going back at least to Roman times. See Restatement (Third) of Unfair Competition § 9, Comment b (1993). The principle underlying trademark protection is that distinctive marks—words, names, symbols, and the like—can help distinguish a particular artisan's goods from those of others. Ibid. One who first uses a distinct mark in commerce thus acquires rights to that mark. See 2 J. McCarthy, Trademarks and Unfair Competition § 16:1 (4th ed. 2014) (hereinafter McCarthy). Those rights include preventing others from using the mark. See 1 A. LaLonde, Gilson on Trademarks § 3.02[8] (2014) (hereinafter Gilson).

Though federal law does not create trademarks, see, e.g., In re Trade-Mark Cases, 100 U.S. 82, 92 (1879), Congress has long played a role in protecting them. In 1946, Congress enacted the Lanham Act, the current federal trademark scheme. As relevant here, the Lanham Act creates at least two adjudicative mechanisms to help protect marks. First, a trademark owner can register its mark with the PTO. Second, a mark owner can bring a suit for infringement in federal court.

Registration is significant. The Lanham Act confers "important legal rights and benefits" on trademark owners who register their marks. 3 McCarthy § 19:3, at 19-21 see also id., § 19:9, at 19-34 (listing seven of the "procedural and substantive legal advantages" of registration). Registration, for instance, serves as "constructive notice of the registrant's claim of ownership" of the mark. 15 U.S.C. § 1072. It also is "prima facie evidence of the validity of the registered mark and of the registration of the mark, of the owner's ownership of the mark, and of the owner's exclusive right to use the registered mark in commerce on or in connection with [p143] the goods or services specified in the certificate." § 1057(b). And once a mark has been registered for five years, it can become "incontestable." §§ 1065, 1115(b).

To obtain the benefits of registration, a mark owner files an application with the PTO. § 1051. The application must include, among other things, "the date of the applicant's first use of the mark, the date of the applicant's first use of the mark in commerce, the goods in connection with which the mark is used, and a drawing of the mark." § 1051(a)(2). The usages listed in the application—i.e., those goods on which the mark appears along with, if applicable, their channels of distribution—are critical. See, e.g., 3 McCarthy § 20:24, at 20-83 ("[T]he applicant's right to register must be made on the basis of the goods described in the application"); id., § 20:15, at 20-85 (explaining that if an "application does not delimit any specific trade channels of distribution, no limitation will be" applied). The PTO generally cannot register a mark which "so resembles" another mark "as to be likely, when used on or in connection with the goods of the applicant, to cause confusion, or to cause mistake, or to deceive." 15 U.S.C. § 1052(d).

If a trademark examiner believes that registration is warranted, the mark is published in the Official Gazette of the PTO. § 1062. At that point, "[a]ny person who believes that he would be damaged by the registration" may "file an opposition." § 1063(a). Opposition proceedings occur before the TTAB (or panels thereof). § 1067(a). The TTAB consists of administrative trademark judges and high-ranking PTO officials, including the Director of the PTO and the Commissioner of Trademarks. § 1067(b).

Opposition proceedings before the TTAB are in many ways "similar to a civil action in a federal district court." TTAB Manual of Procedure § 102.03 (2014) (hereinafter TTAB Manual), online at http://www.uspto.gov (as visited Mar. 20, 2015, and available in Clerk of Court's case file). These proceedings, for instance, are largely governed by the Federal Rules [p144] of Civil Procedure and Evidence. See 37 C.F.R. §§ 2.116(a), 2.122(a) (2014). The TTAB also allows discovery and depositions. See §§ 2.120, 2.123(a). The party opposing registration bears the burden of proof, see § 2.116(b), and if that burden cannot be met, the opposed mark must be registered, see 15 U.S.C. § 1063(b).

The primary way in which TTAB proceedings differ from ordinary civil litigation is that "proceedings before the Board are conducted in writing, and the Board's actions in a particular case are based upon the written record therein." TTAB Manual § 102.03. In other words, there is no live testimony. Even so, the TTAB allows parties to submit transcribed testimony, taken under oath and subject to cross-examination, and to request oral argument. See 37 C.F.R. §§ 2.123, 2.129.

When a party opposes registration because it believes the mark proposed to be registered is too similar to its own, the TTAB evaluates likelihood of confusion by applying some or all of the 13 factors set out in In re E.I. DuPont DeNemours & Co., 476 F.2d 1357 (CCPA 1973). After the TTAB decides whether to register the mark, a party can seek review in the U.S. Court of Appeals for the Federal Circuit, or it can file a new action in district court. See 15 U.S.C. § 1071. In district court, the parties can conduct additional discovery and the judge resolves registration de novo. § 1071(b); see also 3 McCarthy § 21:20 (explaining differences between the forums); cf. Kappos v. Hyatt, 566 U.S. 431 (2012) (de novo review for analogous scheme in patent law).

The Lanham Act, of course, also creates a federal cause of action for trademark infringement. The owner of a mark, whether registered or not, can bring suit in federal court if another is using a mark that too closely resembles the plaintiff's. The court must decide whether the defendant's use of a mark in commerce "is likely to cause confusion, or to cause mistake, or to deceive" with regards to the plaintiff's mark. See 15 U.S.C. § 1114(1)(a) (registered marks); [p145] § 1125(a)(1)(A) (unregistered marks). In infringement litigation, the district court considers the full range of a mark's usages, not just those in the application.

B
Petitioner B&B and respondent Hargis both manufacture metal fasteners. B&B manufactures fasteners for the aerospace industry, while Hargis manufactures fasteners for use in the construction trade. Although there are obvious differences between space shuttles and A-frame buildings, both aerospace and construction engineers prefer fasteners that seal things tightly. Accordingly, both B&B and Hargis want their wares associated with tight seals. A feud of nearly two decades has sprung from this seemingly commonplace set of facts.

In 1993 B&B registered SEALTIGHT for "threaded or unthreaded metal fasteners and other related hardwar[e]; namely, self-sealing nuts, bolts, screws, rivets and washers, all having a captive o-ring, for use in the aerospace industry." App. 223a (capitalization omitted). In 1996, Hargis sought to register SEALTITE for "self-piercing and self-drilling metal screws for use in the manufacture of metal and post-frame buildings." App. 70a (capitalization omitted). B&B opposed Hargis' registration because, although the two companies sell different products, it believes that SEALTITE is confusingly similar to SEALTIGHT.

The twists and turns in the SEALTIGHT versus SEALTITE controversy are labyrinthine. The question whether either of these marks should be registered, and if so, which one, has bounced around within the PTO for about two decades; related infringement litigation has been before the Eighth Circuit three times; and two separate juries have been empaneled and returned verdicts. The full story could fill a long, unhappy book. For purposes here, we pick up the story in 2002, when the PTO published SEALTITE in the Official Gazette. This [p146] prompted opposition proceedings before the TTAB, complete with discovery, including depositions. B&B argued that SEALTITE could not be registered because it is confusingly similar to SEALTIGHT. B&B explained, for instance, that both companies have an online presence, the largest distributor of fasteners sells both companies' products, and consumers sometimes call the wrong company to place orders. Hargis rejoined that the companies sell different products, for different uses, to different types of consumers, through different channels of trade.

Invoking a number of the DuPont factors, the TTAB sided with B&B. The Board considered, for instance, whether SEALTIGHT is famous (it's not, said the Board), how the two products are used (differently), how much the marks resemble each other (very much), and whether customers are actually confused (perhaps sometimes). See App. to Pet. for Cert. 55a–71a. Concluding that "the most critical factors in [its] likelihood of confusion analysis are the similarities of the marks and the similarity of the goods," id., at 70a, the TTAB determined that SEALTITE—when "used in connection with 'self-piercing and self-drilling metal screws for use in the manufacture of metal and post-frame buildings—could not be registered because it "so resembles" SEALTIGHT when "used in connection with fasteners that provide leakproof protection from liquids and gases, fasteners that have a captive o-ring, and 'threaded or unthreaded metal fastners and other related hardware for use in the aerospace industry' as to be likely to cause confusion," id., at 71a. Despite a right to do so, Hargis did not seek judicial review in either the Federal Circuit or District Court.

All the while, B&B had sued Hargis for infringement. Before the District Court ruled on likelihood of confusion, however, the TTAB announced its decision. After a series of proceedings not relevant here, B&B argued to the District Court that Hargis could not contest likelihood of confusion because of the preclusive effect of the TTAB decision. The [p147] District Court disagreed, reasoning that the TTAB is not an Article III court. The jury returned a verdict for Hargis, finding no likelihood of confusion.

B&B appealed to the Eighth Circuit. Though accepting for the sake of argument that agency decisions can ground issue preclusion, the panel majority affirmed for three reasons: first, because the TTAB uses different factors than the Eighth Circuit to evaluate likelihood of confusion; second, because the TTAB placed too much emphasis on the appearance and sound of the two marks; and third, because Hargis bore the burden of persuasion before the TTAB, while B&B bore it before the District Court. 716 F.3d 1020 (2013). Judge Colloton dissented, concluding that issue preclusion should apply. After calling for the views of the Solicitor General, we granted certiorari. 573 U.S. 957 (2014).

II
The first question that we must address is whether an agency decision can ever ground issue preclusion. The District Court rejected issue preclusion because agencies are not Article III courts. The Eighth Circuit did not adopt that view, and, given this Court's cases, it was right to take that course.

This Court has long recognized that "the determination of a question directly involved in one action is conclusive as to that question in a second suit." Cromwell v. County of Sac, 94 U.S. 351, 354 (1877). The idea is straightforward: Once a court has decided an issue, it is "forever settled as between the parties," Baldwin v. Iowa State Traveling Men's Assn., 283 U.S. 522, 525 (1931), thereby "protect[ing]" against "the expense and vexation attending multiple lawsuits, conserv[ing] judicial resources, and foster[ing] reliance on judicial action by minimizing the possibility of inconsistent verdicts," Montana v. United States, 440 U.S. 147, 153–154 (1979). In short, "a losing litigant deserves no rematch after a defeat fairly suffered." ''Astoria Fed. Sav. & Loan Assn. v. Solimino'', 501 U.S. 104, 107 (1991).

[p148] Although the idea of issue preclusion is straightforward, it can be challenging to implement. The Court, therefore, regularly turns to the Restatement (Second) of Judgments for a statement of the ordinary elements of issue preclusion. See, e.g., Bobby v. Bies, 556 U.S. 825, 834 (2009); New Hampshire v. Maine, 532 U.S. 742, 748–749 (2001); Baker v. General Motors Corp., 522 U.S. 222, 233, n.5 (1998). The Restatement explains that subject to certain well-known exceptions, the general rule is that "[w]hen an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim." Restatement (Second) of Judgments § 27, p. 250 (1980); see also id., § 28, at 273 (listing exceptions such as whether appellate review was available or whether there were "differences in the quality or extensiveness of the procedures followed").

Both this Court's cases and the Restatement make clear that issue preclusion is not limited to those situations in which the same issue is before two courts. Rather, where a single issue is before a court and an administrative agency, preclusion also often applies. Indeed, this Court has explained that because the principle of issue preclusion was so "well established" at common law, in those situations in which Congress has authorized agencies to resolve disputes, "courts may take it as given that Congress has legislated with the expectation that the principle [of issue preclusion] will apply except 'when a statutory purpose to the contrary is evident. Astoria, supra, at 108. This reflects the Court's longstanding view that [w]hen an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose. University of Tenn. v. Elliott, 478 U.S. 788, 797–798 (1986) (quoting [p149] United States v. Utah Constr. & Mining Co., 384 U.S. 394, 422 (1966)); see also ''Hayfield Northern R. Co. v. Chicago & North Western Transp. Co., 467 U.S. 622, 636, n.15 (1984) (noting Utah Construction); Kremer v. Chemical Constr. Corp.'', 456 U.S. 461, 484–485, n.26 (1982) (characterizing 's discussion of administrative preclusion as a holding); Restatement (Second) of Judgments § 83(1), at 266 (explaining that, with some limits, "a valid and final adjudicative determination by an administrative tribunal has the same effects under the rules of res judicata, subject to the same exceptions and qualifications, as a judgment of a court").

Although apparently accepting Astoria and Utah Construction, Hargis argues that we should not read the Lanham Act (or, presumably, many other federal statutes) as authorizing issue preclusion. Otherwise, Hargis warns, the Court would have to confront grave and doubtful questions' as to the Lanham Act's consistency with the Seventh Amendment and Article III of the Constitution." Brief for Respondent 38 (quoting United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U.S. 366, 408 (1909)). We are not persuaded.

At the outset, we note that Hargis does not argue that giving issue preclusive effect to the TTAB's decision would be unconstitutional. Instead, Hargis contends only that we should read the Lanham Act narrowly because a broad reading might be unconstitutional. See, e.g., Brief for Respondent 37, 39, 40, 41–42. The likely reason that Hargis has not directly advanced a constitutional argument is that, at least [p150] as to a jury trial right, Hargis did not even list the Seventh Amendment as an authority in its appellee brief to the Eighth Circuit. Moreover, although Hargis pressed an Article III argument below, in its opposition to certiorari in this Court, Hargis seemingly conceded that TTAB decisions can sometimes ground issue preclusion, though it now protests otherwise. See Supplemental Brief in Opposition 2. To the extent, if any, that there could be a meritorious constitutional objection, it is not before us. See Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 231–232 (1995).

We reject Hargis' statutory argument that we should jettison administrative preclusion in whole or in part to avoid potential constitutional concerns. As to the Seventh Amendment, for instance, the Court has already held that the right to a jury trial does not negate the issue-preclusive effect of a judgment, even if that judgment was entered by a juryless tribunal. See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 337 (1979). It would seem to follow naturally that although the Seventh Amendment creates a jury trial right in suits for trademark damages, see Dairy Queen, Inc. v. Wood, 369 U.S. 469, 477 (1962), TTAB decisions still can have preclusive effect in such suits. Hargis disputes this reasoning even though it admits that in 1791 a party was not entitled to have a jury determine issues that had been previously adjudicated by a chancellor in equity. Brief for Respondent 39 (quoting Parklane Hosiery, supra, at 333). Instead, Hargis contends that issue preclusion should not apply to TTAB registration decisions because there were no agencies at common law. But our precedent holds that the Seventh Amendment does not strip competent tribunals of the power to issue judgments with preclusive effect; that logic would not seem to turn on the nature of the competent tribunal. And at the same time, adopting Hargis' view would dramatically undercut agency preclusion, despite what the Court has already said to the contrary. Nothing in Hargis' avoidance argument is weighty enough to overcome these weaknesses.

[p151] The claim that we should read the Lanham Act narrowly to avoid Article III concerns is equally unavailing—and for similar reasons. Hargis argues that because it might violate Article III if an agency could make a decision with preclusive effect in a later proceeding before a federal court, we should conclude, as a statutory matter, that issue preclusion is unavailable. Such a holding would not fit with our precedent. For instance, in Elliott, the Court, relying on Utah Construction, explained that absent a contrary indication, Congress presumptively intends that an agency's determination (there, a state agency) has preclusive effect. 478 U.S., at 796–799; see also Astoria, 501 U.S., at 110 (recognizing the "presumption"). To be sure, the Court has never addressed whether such preclusion offends Article III. But because this Court's cases are so clear, there is no ambiguity for this Court to sidestep through constitutional avoidance.

III
The next question is whether there is an "evident" reason why Congress would not want TTAB decisions to receive preclusive effect, even in those cases in which the ordinary elements of issue preclusion are met. Id., 108. We conclude that nothing in the Lanham Act bars the application of issue preclusion in such cases.

The Lanham Act's text certainly does not forbid issue preclusion. Nor does the Act's structure. Granted, one can seek judicial review of a TTAB registration decision in a de novo district court action, and some courts have concluded from this that Congress does not want unreviewed TTAB [p152] decisions to ground issue preclusion. See, e.g., ''American Heritage Life Ins. Co. v. Heritage Life Ins. Co.'', 494 F.2d 3, 9–10 (CA5 1974). But that conclusion does not follow. Ordinary preclusion law teaches that if a party to a court proceeding does not challenge an adverse decision, that decision can have preclusive effect in other cases, even if it would have been reviewed de novo. See Restatement (Second) of Judgments § 28, Comment a and Illustration 1 (explaining that the failure to pursue an appeal does not undermine issue preclusion and including an example of an apparently unappealed district court's dismissal for failure to state a claim); cf. Federated Department Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981) (noting "the res judicata consequences of a final, unappealed judgment on the merits").

This case is also unlike Astoria, where a plaintiff claiming discrimination first went to an agency and then sued in court about the same alleged conduct. See 501 U.S., at 111. The Court concluded, quite sensibly, that the structure of that scheme indicated that the agency decision could not ground issue preclusion. When exhausting an administrative process is a prerequisite to suit in court, giving preclusive effect to the agency's determination in that very administrative process could render the judicial suit "strictly pro forma." Ibid.; see also Elliott, supra, at 795–796 (similar analysis). Here, if a party urged a district court reviewing a TTAB registration decision to give preclusive effect to the very TTAB decision under review, Astoria would apply. But that is not this case.

What matters here is that registration is not a prerequisite to an infringement action. Rather, it is a separate proceeding to decide separate rights. Neither is issue preclusion a one-way street. When a district court, as part of its judgment, decides an issue that overlaps with part of the TTAB's analysis, the TTAB gives preclusive effect to the court's judgment. See App. to Pet. for Cert. 54a–55a (giving preclusive effect to the District Court's earlier decision regarding [p153] SEALTIGHT's distinctiveness because the issue "was actually litigated and necessarily determined"). Hargis also argues that allowing TTAB decisions to have issue-preclusive effect will adversely affect the registration process. Because of the TTAB's limited jurisdiction and the narrowness of the issues before it, Hargis contends, the Court should infer that TTAB proceedings are supposed to be more streamlined than infringement litigation. See Brief for Respondent 30 (quoting TTAB Manual § 402.01). But, the argument goes, if TTAB decisions can have issue-preclusive effect in infringement litigation, parties may spend more time and energy before the TTAB, thus bogging down the registration process. This concern does not change our conclusion. Issue preclusion is available unless it is "evident," Astoria, supra, at 108, that Congress does not want it. Here, if a streamlined process in all registration matters was particularly dear to Congress, it would not have authorized de novo challenges for those "dissatisfied" with TTAB decisions. 15 U.S.C. § 1071(b). Plenary review serves many functions, but ensuring a streamlined process is not one of them. Moreover, as explained below, for a great many registration decisions issue preclusion obviously will not apply because the ordinary elements will not be met. For those registrations, nothing we say today is relevant.

IV
At last we turn to whether there is a categorical reason why registration decisions can never meet the ordinary elements of issue preclusion, e.g., those elements set out in § 27 of the Restatement (Second) of Judgments. Although many registrations will not satisfy those ordinary elements, that does not mean that none will. We agree with Professor McCarthy that issue preclusion applies where "the issues in the two cases are indeed identical and the other rules of collateral estoppel are carefully observed." 6 McCarthy § 32:99, at 32-244; see also 3 Gilson § 11.08[4][i][iii][B], p. 11-319 ("Ultimately, [p154] Board decisions on likelihood of confusion should be given preclusive effect on a case-by-case basis").

A
The Eighth Circuit's primary objection to issue preclusion was that the TTAB considers different factors than it does. Whereas the TTAB employs some or all of the DuPont factors to assess likelihood of confusion, the Eighth Circuit looks to similar, but not identical, factors identified in SquirtCo v. Seven-Up Co., 628 F.2d 1086, 1091 (CA8 1980). The court's instinct was sound: "[I]ssues are not identical if the second action involves application of a different legal standard, even though the factual setting of both suits may be the same." 18 C. Wright, A. Miller, & E. Cooper, Federal Practice & Procedure § 4417, p. 449 (2d ed. 2002) (hereinafter Wright & Miller). Here, however, the same likelihood-of-confusion standard applies to both registration and infringement.

To begin with, it does not matter that registration and infringement are governed by different statutory provisions. Often a single standard is placed in different statutes; that does not foreclose issue preclusion. See, e.g., Smith v. Bayer Corp., 564 U.S. 299, 307–308 (2011). Neither does it matter that the TTAB and the Eighth Circuit use different factors to assess likelihood of confusion. For one thing, the factors are not fundamentally different, and "[m]inor variations in the application of what is in essence the same legal standard do not defeat preclusion." Id., at 312, n.9. More important, if federal law provides a single standard, parties cannot escape preclusion simply by litigating anew in tribunals that apply that one standard differently. A contrary rule would encourage the very evils that issue preclusion helps to prevent.

The real question, therefore, is whether likelihood of confusion for purposes of registration is the same standard as likelihood of confusion for purposes of infringement. We conclude it is, for at least three reasons. First, the operative [p155] language is essentially the same; the fact that the registration provision separates "likely" from "to cause confusion, or to cause mistake, or to deceive" does not change that reality. See 2 Gilson § 5.01[2][A], at 5-17 (explaining that "the same statutory test" applies). Second, the likelihood-of-confusion language that Congress used in these Lanham Act provisions has been central to trademark registration since at least 1881. See Act of Mar. 3, 1881, ch. 138, § 3, 21 Stat. 503 (using a "likely to cause confusion" standard for registration). That could hardly have been by accident. And third, district courts can cancel registrations during infringement litigation, just as they can adjudicate infringement in suits seeking judicial review of registration decisions. See 15 U.S.C. § 1119; 3 McCarthy § 21:20. There is no reason to think that the same district judge in the same case should apply two separate standards of likelihood of confusion.

Hargis responds that the text is not actually the same because the registration provision asks whether the marks "resemble" each other, 15 U.S.C. § 1052(d), while the infringement provision is directed towards the "use in commerce" of the marks, § 1114(1). Indeed, according to Hargis, the distinction between "resembl[ance]" and "use" has been key to trademark law for over a century. There is some force to this argument. It is true that "a party opposing an application to register a mark before the Board often relies only on its federal registration, not on any common-law rights in usages [p156] not encompassed by its registration," and "the Board typically analyzes the marks, goods, and channels of trade only as set forth in the application and in the opposer's registration, regardless of whether the actual usage of the marks by either party differs." Brief for United States as Amicus Curiae 23; see also id., at 5 (explaining that "the Board typically reviews only the usages encompassed by the registration") (citing 3 Gilson § 9.03[2][a][ii]); 3 McCarthy § 20:15, at 20-45 (explaining that for registration "it is the mark as shown in the application and as used on the goods described in the application which must be considered, not the mark as actually used"). This means that unlike in infringement litigation, "[t]he Board's determination that a likelihood of confusion does or does not exist will not resolve the confusion issue with respect to non-disclosed usages." Brief for United States as Amicus Curiae 23.

Hargis' argument falls short, however, because it mistakes a reason not to apply issue preclusion in some or even many cases as a reason never to apply issue preclusion. Just because the TTAB does not always consider the same usages as a district court does, it does not follow that the Board applies a different standard to the usages it does consider. If a mark owner uses its mark in ways that are materially the same as the usages included in its registration application, then the TTAB is deciding the same likelihood-of-confusion issue as a district court in infringement litigation. By contrast, if a mark owner uses its mark in ways that are materially unlike the usages in its application, then the TTAB is not deciding the same issue. Thus, if the TTAB does not consider the marketplace usage of the parties' marks, the TTAB's decision should "have no later preclusive [p157] effect in a suit where actual usage in the marketplace is the paramount issue." 6 McCarthy § 32:101, at 32-246.

Materiality, of course, is essential—trivial variations between the usages set out in an application and the use of a mark in the marketplace do not create different "issues," just as trivial variations do not create different "marks." See generally 4 id., § 23:50, at 23-265 (explaining that "adding descriptive or non-distinctive" elements to another's mark generally will not negate confusion). Otherwise, a party could escape the preclusive effect of an adverse judgment simply by adding an immaterial feature to its mark. That is not the law. See, e.g., Restatement (Second) of Judgments § 27, Comment c, at 252–253 (explaining that "issue" must be understood broadly enough "to prevent repetitious litigation of what is essentially the same dispute"); United States v. Stauffer Chemical Co., 464 U.S. 165, 172 (1984) (applying issue preclusion where a party sought to "litigate twice an issue arising  from virtually identical facts" because the "factual differences" were "of no legal significance").

A fortiori, if the TTAB considers a different mark altogether, issue preclusion would not apply. Needless to say, moreover, if the TTAB has not decided the same issue as that before the district court, there is no reason why any deference would be warranted.

For a similar reason, the Eighth Circuit erred in holding that issue preclusion could not apply here because the TTAB relied too heavily on "appearance and sound." App. to Pet. for Cert. 10a. Undoubtedly there are cases in which the TTAB places more weight on certain factors than it should. When that happens, an aggrieved party should seek judicial review. The fact that the TTAB may have erred, however, does not prevent preclusion. As Judge Colloton observed in dissent, issue preclusion prevent[s] relitigation of wrong decisions just as much as right ones. 716 F.3d, at 1029 (quoting Clark v. Clark, 984 F.2d 272, 273 (CA8 1993)); see [p158] also Restatement (Second) of Judgments § 28, Comment j, at 284 (explaining that "refusal to give the first judgment preclusive effect should not be based simply on a conclusion that [it] was patently erroneous").

B
Hargis also argues that registration is categorically incompatible with issue preclusion because the TTAB uses procedures that differ from those used by district courts. Granted, "[r]edetermination of issues is warranted if there is reason to doubt the quality, extensiveness, or fairness of procedures followed in prior litigation." Montana, 440 U.S., at 164, n.11; see also Parklane Hosiery, 439 U.S., at 331, and n.15 (similar). But again, this only suggests that sometimes issue preclusion might be inappropriate, not that it always is.

No one disputes that the TTAB and district courts use different procedures. Most notably, district courts feature live witnesses. Procedural differences, by themselves, however, do not defeat issue preclusion. Equity courts used different procedures than did law courts, but that did not bar issue preclusion. See id., at 333. Nor is there reason to think that the state agency in Elliott used procedures identical to those in federal court; nonetheless, the Court held that preclusion could apply. See 478 U.S., at 796–799. Rather than focusing on whether procedural differences exist—they often will—the correct inquiry is whether the procedures used in the first proceeding were fundamentally poor, cursory, or unfair. See Montana, 440 U.S., at 164, n.11.

Here, there is no categorical "reason to doubt the quality, extensiveness, or fairness," ibid., of the agency's procedures. In large part they are exactly the same as in federal court. See 37 C.F.R. §§ 2.116(a), 2.122(a). For instance, although "[t]he scope of discovery in Board proceedings is generally narrower than in court proceedings"—reflecting the fact that there are often fewer usages at issue—the TTAB has [p159] adopted almost the whole of Federal Rule of Civil Procedure 26. TTAB Manual § 402.01; see also id., § 401. It is conceivable, of course, that the TTAB's procedures may prove ill-suited for a particular issue in a particular case, e.g., a party may have tried to introduce material evidence but was prevented by the TTAB from doing so, or the TTAB's bar on live testimony may materially prejudice a party's ability to present its case. The ordinary law of issue preclusion, however, already accounts for those "rare" cases where a "compelling showing of unfairness" can be made. Restatement (Second) of Judgments § 28, Comments g and j, at 283–284.

The Eighth Circuit likewise erred by concluding that Hargis bore the burden of persuasion before the TTAB. B&B, the party opposing registration, bore the burden, see 37 C.F.R. § 2.116(b); TTAB Manual § 702.04(a), just as it did in the infringement action. Hargis does not defend the decision below on this ground.

C
Hargis also contends that the stakes for registration are so much lower than for infringement that issue preclusion should never apply to TTAB decisions. Issue preclusion may be inapt if "the amount in controversy in the first action [was] so small in relation to the amount in controversy in the second that preclusion would be plainly unfair." Restatement (Second) of Judgments § 28, Comment j, at 283–284. After all, "[f]ew litigants would spend $50,000 to defend a $5,000 claim." Wright & Miller § 4423, at 612. Hargis is wrong, however, that this exception to issue preclusion applies to every registration. To the contrary: When registration is opposed, there is good reason to think that both sides will take the matter seriously.

The benefits of registration are substantial. Registration is "prima facie evidence of the validity of the registered mark," 15 U.S.C. § 1057(b), and is a precondition for a mark to become "incontestable," § 1065. Incontestability is a powerful protection. See, e.g., [p160] Park 'N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 194 (1985) (holding that an incontestable mark cannot be challenged as merely descriptive); see also id., at 193 (explaining that "Congress determined that 'trademarks should receive nationally the greatest protection that can be given them and that "[a]mong the new protections created by the Lanham Act were the statutory provisions that allow a federally registered mark to become incontestable" (quoting S. Rep. No. 1333, 79th Cong., 2d Sess., 6 (1946))).

The importance of registration is undoubtedly why Congress provided for de novo review of TTAB decisions in district court. It is incredible to think that a district court's adjudication of particular usages would not have preclusive effect in another district court. Why would unchallenged TTAB decisions be different? Congress' creation of this elaborate registration scheme, with so many important rights attached and backed up by plenary review, confirms that registration decisions can be weighty enough to ground issue preclusion.

V
For these reasons, the Eighth Circuit erred in this case. On remand, the court should apply the following rule: So long as the other ordinary elements of issue preclusion are met, when the usages adjudicated by the TTAB are materially the same as those before the district court, issue preclusion should apply.

The judgment of the United States Court of Appeals for the Eighth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.


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 “Tigger.”

“Then come this way, Tigger.”

Eeyore led the way to the most thistly-looking patch of thistles that ever was, and waved a hoof at it.

“A little patch I was keeping for my birthday,” he said; “but, after all, what are birthdays? Here today and gone tomorrow. Help yourself, Tigger.”

Tigger thanked him and looked a little anxiously at Pooh.

“Are these really thistles?” he whispered.

“Yes,” said Pooh.

“What Tiggers like best?”

“That’s right,” said Pooh.

“I see,” said Tigger.

So he took a large mouthful, and he gave a large crunch.

“Ow!” said Tigger.

He sat down and put his paw in his mouth.

“What’s the matter?” asked Pooh.

“Hot!” mumbled Tigger.

“Your friend,” said Eeyore, “appears to have bitten on a bee.”

Pooh’s friend stopped shaking his head to get the prickles out, and explained that Tiggers didn’t like thistles.

“Then why bend a perfectly good one?” asked Eeyore.


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B&B Hardware, Inc. v. Hargis Industries, Inc./Concurrence Ginsburg

JUSTICE GINSBURG, concurring.

The Court rightly recognizes that "for a great many registration decisions issue preclusion obviously will not apply." Ante, at 153. That is so because contested registrations [p161] are often decided upon "a comparison of the marks in the abstract and apart from their marketplace usage." 6 J. McCarthy, Trademarks and Unfair Competition § 32:101, p. 32-247 (4th ed. 2014). When the registration proceeding is of that character, "there will be no [preclusion] of the likel[ihood] of confusion issue in a later infringement suit." Ibid. On that understanding, I join the Court's opinion.


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 715–17] best prospect of success. Unexpectedly, Leo himself was raised to the throne, and threw the unnatural alliance over. The Muslim troops on both sides of the Bosphorus were defeated, and suffered such hardship from hunger, frost, and pestilence, that after lying before Constantinople for a year, the fleet was forced to retire, and the invasion came to a disastrous and inglorious end. Greek fire played a not inconsiderable part in the defeat.

Suleimān retained as Caliph his residence at Ramleh in Palestine, but made frequent excursions to Dābiḳ, the base of the army operating against Constantinople, and there he died early in 99 A son, nominated his successor, died before him. On his deathbed the Caliph wished to appoint another son, a minor; but he was persuaded by the saintly Rajā ibn Ḥayā, whose influence had been felt under the two preceding reigns also, to name instead ʿOmar, son of his uncle ʿAbd al-ʿAzīz, so long governor of Egypt, and after him his brother Yezīd, to succeed. For the nomination of ʿOmar, the memory of Suleimān is blessed, though he himself receives but little other praise.

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 368 eunuchs. Handsome in mien and feature, it is related of him that at Dābiḳ, arrayed in a green robe and turban, he looked at himself in the mirror, and said, "Am I not the kingly youth?" slave-girl stood admiring by. "What thinkest thou?" he said to her. "I was thinking," she sang in plaintive verse, "that thou art the best of joys, if thou wouldest but remain; yet for mankind there is no continuing here. No blemish can I see in thee that is in other men, excepting only that thou, like them, must pass away." And he died within the week—having reigned two years and a half.


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title: Self-Help/Chapter 3


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 important branch of industry. In not fewer than  pieces of pottery were exported from England to other countries, besides what were made for home use. But it is not merely the quantity and value of the produce that is entitled to consideration, but the improvement of the condition of the population by whom this great branch of industry is conducted. When Wedgwood began his labours, the Staffordshire district was only in a half-civilized state. The people were poor, uncultivated, and few in number. When Wedgwood's manufacture was firmly established, there was found ample employment at good wages for three times the number of population; while their moral advancement had kept pace with their material improvement.

Men such as these are fairly entitled to take rank as the Industrial Heroes of the civilized world. Their patient self-reliance amidst trials and difficulties, their courage and perseverance in the pursuit of worthy objects, are not less heroic of their kind than the bravery and devotion of the soldier and the sailor, whose duty and pride it is heroically to defend what these valiant leaders of industry have so heroically achieved.


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