hardware hargis industries dba sealtite building fasteners et et argued december decided march respondent hargis industries hargis tried register trademark sealtite patent trademark office pursuant lanham act petitioner hardware however opposed registration claiming sealtite similar sealtight trademark trademark trial appeal board ttab concluded sealtite registered likelihood confusion hargis seek judicial review decision later infringement suit district argued hargis precluded contesting likelihood confusion ttab decision district disagreed eighth circuit affirmed holding preclusion unwarranted ttab used different factors evaluate likelihood confusion ttab placed much emphasis appearance sound two marks hargis bore burden persuasion ttab bore district held long ordinary elements issue preclusion met usages adjudicated ttab materially district issue preclusion apply pp agency decision ground issue preclusion cases establish congress authorizes agencies resolve disputes courts may take given congress legislated expectation issue preclusion apply except statutory purpose contrary evident astoria fed sav loan assn solimino constitutional avoidance compel different conclusion pp neither lanham act text structure rebuts presumption favor giving preclusive effect ttab decisions ordinary elements issue preclusion met astoria case unlike astoria exhausting administrative process prerequisite suit giving preclusive effect agency determination administrative process rendered judicial suit strictly pro forma contrast registration involves separate proceeding decide separate rights pp categorical reason registration decisions never meet ordinary elements issue preclusion many registrations satisfy ordinary elements mean none pp contrary eighth circuit conclusion standard applies registration infringement factors ttab eighth circuit use assess likelihood confusion fundamentally different important operative language statute essentially hargis claims standards different noting registration provision asks whether marks resemble infringement provision directed towards use commerce marks ttab district always consider usages however mean ttab applies different standard usages consider mark owner uses mark materially ways usages included registration application ttab deciding issue district infringement litigation similar reason eighth circuit erred holding issue preclusion apply ttab relied heavily appearance sound pp fact ttab district courts use different procedures suggests sometimes issue preclusion might inappropriate always categorical reason doubt quality extensiveness fairness montana agency procedures large part exactly federal also contrary eighth circuit conclusion party opposing registration hargis bore burden persuasion ttab infringement suit pp hargis also wrong stakes registration always low issue preclusion later infringement litigation registration opposed good reason think sides take matter seriously congress creation elaborate registration scheme many important rights attached backed plenary review confirms registration decisions weighty enough ground issue preclusion pp reversed remanded alito delivered opinion roberts kennedy ginsburg breyer sotomayor kagan joined ginsburg filed concurring opinion thomas filed dissenting opinion scalia joined opinion notice opinion subject formal revision publication preliminary print reports readers requested notify reporter decisions washington typographical formal errors order corrections may made preliminary print goes press hardware petitioner hargis industries dba sealtite building fasteners dba east texas fasteners et al writ certiorari appeals eighth circuit march justice alito delivered opinion sometimes two different tribunals asked decide issue happens decision first tribunal usually must followed second least issue really allowing issue decided wastes litigants resources adjudicators time encourages parties lose one tribunal shop around another doctrine collateral estoppel issue preclusion designed prevent occurring case concerns application issue preclusion context trademark law petitioner hardware respondent hargis industries hargis use similar trademarks owns sealtight hargis owns sealtite lanham act stat amended et applicant seek register trademark administrative process within patent trademark office pto another party believes pto register mark similar party oppose registration trademark trial appeal board ttab hargis tried register mark sealtite opposed sealtite registration lengthy proceeding ttab agreed sealtite registered addition permitting party object registration mark lanham act allows mark owner sue trademark infringement registration proceeding suit trademark infringement occur time case ttab deciding whether sealtite registered hargis also litigating sealtight versus sealtite dispute federal registration proceedings infringement litigation tribunal asks whether likelihood confusion exists mark sought protected sealtight mark sealtite question whether district case applied issue preclusion ttab decision sealtite confusingly similar sealtight eighth circuit rejected issue preclusion reasons make difficult doctrine ever apply trademark disputes disagree narrow understanding issue preclusion instead consistent principles law apply innumerable contexts hold give preclusive effect ttab decisions ordinary elements issue preclusion met therefore reverse judgment eighth circuit remand proceedings trademark law long history going back least roman times see restatement third unfair competition comment principle underlying trademark protection distinctive marks words names symbols like help distinguish particular artisan goods others ibid one first uses distinct mark commerce thus acquires rights mark see mccarthy trademarks unfair competition ed hereinafter mccarthy rights include preventing others using mark see lalonde gilson trademarks hereinafter gilson though federal law create trademarks see cases congress long played role protecting congress enacted lanham act current federal trademark scheme relevant lanham act creates least two adjudicative mechanisms help protect marks first trademark owner register mark pto second mark owner bring suit infringement federal registration significant lanham act confers important legal rights benefits trademark owners register marks mccarthy see also listing seven procedural substantive legal advantages registration registration instance serves constructive notice registrant claim ownership mark also prima facie evidence validity registered mark registration mark owner ownership mark owner exclusive right use registered mark commerce connection goods services specified certificate mark registered five years become incontestable obtain benefits registration mark owner files application pto application must include among things date applicant first use mark date applicant first use mark commerce goods connection mark used drawing mark usages listed application goods mark appears along applicable channels distribution critical see mccarthy applicant right register must made basis goods described application explaining application delimit trade channels distribution limitation applied pto generally register mark resembles another mark likely used connection goods applicant cause confusion cause mistake deceive trademark examiner believes registration warranted mark published official gazette pto point ny person believes damaged registration may file opposition opposition proceedings occur ttab panels thereof ttab consists administrative trademark judges pto officials including director pto commissioner trademarks opposition proceedings ttab many ways similar civil action federal district ttab manual procedure hereinafter ttab manual online http visited mar available clerk case file proceedings instance largely governed federal rules civil procedure evidence see cfr ttab also allows discovery depositions see party opposing registration bears burden proof see burden met opposed mark must registered see primary way ttab proceedings differ ordinary civil litigation proceedings board conducted writing board actions particular case based upon written record therein ttab manual words live testimony even ttab allows parties submit transcribed testimony taken oath subject request oral argument see cfr party opposes registration believes mark proposed registered similar ttab evaluates likelihood confusion applying factors set dupont denemours ccpa ttab decides whether register mark party seek review appeals federal circuit file new action district see district parties conduct additional discovery judge resolves registration de novo see also mccarthy explaining differences forums cf kappos hyatt de novo review analogous scheme patent law lanham act course also creates federal cause action trademark infringement owner mark whether registered bring suit federal another using mark closely resembles plaintiff must decide whether defendant use mark commerce likely cause confusion cause mistake deceive regards plaintiff mark see registered marks unregistered marks infringement litigation district considers full range mark usages application petitioner respondent hargis manufacture metal fasteners manufactures fasteners aerospace industry hargis manufactures fasteners use construction trade although obvious differences space shuttles buildings aerospace construction engineers prefer fasteners seal things tightly accordingly hargis want wares associated tight seals feud nearly two decades sprung seemingly commonplace set facts registered sealtight threaded unthreaded metal fasteners related hardwar namely nuts bolts screws rivets washers captive use aerospace industry app capitalization omitted hargis sought register sealtite metal screws use manufacture metal buildings app capitalization omitted opposed hargis registration although two companies sell different products believes sealtite confusingly similar sealtight twists turns sealtight versus sealtite controversy labyrinthine question whether either marks registered one bounced around within pto two decades related infringement litigation eighth circuit three times two separate juries empaneled returned verdicts full story fill long unhappy book purposes pick story pto published sealtite official gazette prompted opposition proceedings ttab complete discovery including depositions sealtite registered confusingly similar sealtight explained instance companies online presence largest distributor fasteners sells companies products consumers sometimes call wrong company place orders hargis rejoined companies sell different products different uses different types consumers different channels trade invoking number dupont factors ttab sided board considered instance whether sealtight famous said board two products used differently much marks resemble much whether customers actually confused perhaps sometimes see app pet cert concluding critical factors likelihood confusion analysis similarities marks similarity goods ttab determined sealtite used connection metal screws use manufacture metal registered resembles sealtight used connection fasteners provide leakproof protection liquids gases fasteners captive unthreaded metal fastners related hardware use aerospace industry likely cause confusion despite right hargis seek judicial review either federal circuit district sued hargis infringement district ruled likelihood confusion however ttab announced decision series proceedings relevant argued district hargis contest likelihood confusion preclusive effect ttab decision district disagreed reasoning ttab article iii jury returned verdict hargis finding likelihood confusion appealed eighth circuit though accepting sake argument agency decisions ground issue preclusion panel majority affirmed three reasons first ttab uses different factors eighth circuit evaluate likelihood confusion second ttab placed much emphasis appearance sound two marks third hargis bore burden persuasion ttab bore district judge colloton dissented concluding issue preclusion apply calling views solicitor general granted certiorari ii first question must address whether agency decision ever ground issue preclusion district rejected issue preclusion agencies article iii courts eighth circuit adopt view given cases right take course long recognized determination question directly involved one action conclusive question second suit cromwell county sac idea straightforward decided issue forever settled parties baldwin iowa state traveling men assn thereby protect ing expense vexation attending multiple lawsuits conserv ing judicial resources foster ing reliance judicial action minimizing possibility inconsistent verdicts montana short losing litigant deserves rematch defeat fairly suffered astoria fed sav loan assn solimino although idea issue preclusion straightforward challenging implement therefore regularly turns restatement second judgments statement ordinary elements issue preclusion see bobby bies new hampshire maine baker general motors restatement explains subject certain exceptions general rule hen issue fact law actually litigated determined valid final judgment determination essential judgment determination conclusive subsequent action parties whether different claim restatement second judgments see also listing exceptions whether appellate review available whether differences quality extensiveness procedures followed cases restatement make clear issue preclusion limited situations issue two courts rather single issue administrative agency preclusion also often applies indeed explained principle issue preclusion well established common law situations congress authorized agencies resolve disputes courts may take given congress legislated expectation principle issue preclusion apply except statutory purpose contrary evident astoria supra reflects longstanding view hen administrative agency acting judicial capacity resolves disputed issues fact properly parties adequate opportunity litigate courts hesitated apply res judicata enforce repose university elliott quoting utah constr mining see also hayfield northern chicago north western transp noting utah construction kremer chemical constr characterizing utah construction discussion administrative preclusion holding restatement second judgments explaining limits valid final adjudicative determination administrative tribunal effects rules res judicata subject exceptions qualifications judgment although apparently accepting astoria utah hargis argues read lanham act presumably many federal statutes authorizing issue preclusion otherwise hargis warns confront doubtful questions lanham act consistency seventh amendment article iii constitution brief respondent quoting ex rel attorney general delaware hudson persuaded outset note hargis argue giving issue preclusive effect ttab decision unconstitutional instead hargis contends read lanham act narrowly broad reading might unconstitutional see brief respondent likely reason hargis directly advanced constitutional argument least jury trial right hargis even list seventh amendment authority appellee brief eighth circuit moreover although hargis pressed article iii argument opposition certiorari hargis seemingly ttab decisions sometimes ground issue preclusion though protests otherwise see supplemental brief opposition extent meritorious constitutional objection us see plaut spendthrift farm reject hargis statutory argument jettison administrative preclusion whole part avoid potential constitutional concerns seventh amendment instance already held right jury trial negate effect judgment even judgment entered juryless tribunal see parklane hosiery shore seem follow naturally although seventh amendment creates jury trial right suits trademark damages see dairy queen wood ttab decisions still preclusive effect suits hargis disputes reasoning even though admits party entitled jury determine issues previously chancellor equity brief respondent quoting parklane hosiery supra instead hargis contends issue preclusion apply ttab registration decisions agencies common law precedent holds seventh amendment strip competent tribunals power issue judgments preclusive effect logic seem turn nature competent tribunal time adopting hargis view dramatically undercut agency preclusion despite already said contrary nothing hargis avoidance argument weighty enough overcome weaknesses claim read lanham act narrowly avoid article iii concerns equally unavailing similar reasons hargis argues might violate article iii agency make decision preclusive effect later proceeding federal conclude statutory matter issue preclusion unavailable holding fit precedent instance elliott relying utah construction explained absent contrary indication congress presumptively intends agency determination state agency preclusive effect see also astoria recognizing presumption sure never addressed whether preclusion offends article iii cases clear ambiguity sidestep constitutional iii next question whether evident reason congress want ttab decisions receive preclusive effect even cases ordinary elements issue preclusion met astoria supra conclude nothing lanham act bars application issue preclusion cases lanham act text certainly forbid issue preclusion act structure granted one seek judicial review ttab registration decision de novo district action courts concluded congress want unreviewed ttab decisions ground issue preclusion see american heritage life ins heritage life ins conclusion follow ordinary preclusion law teaches party proceeding challenge adverse decision decision preclusive effect cases even reviewed de novo see restatement second judgments comment illustration explaining failure pursue appeal undermine issue preclusion including example apparently unappealed district dismissal failure state claim cf federated department stores moitie noting res judicata consequences final unappealed judgment merits case also unlike astoria plaintiff claiming discrimination first went agency sued alleged conduct see concluded quite sensibly structure scheme indicated agency decision ground issue preclusion exhausting administrative process prerequisite suit giving preclusive effect agency determination administrative process render judicial suit strictly pro forma ibid see also elliott supra similar analysis party urged district reviewing ttab registration decision give preclusive effect ttab decision review astoria apply case matters registration prerequisite infringement action rather separate proceeding decide separate rights neither issue preclusion street district part judgment decides issue overlaps part ttab analysis ttab gives preclusive effect judgment see app pet cert giving preclusive effect district earlier decision regarding sealtight distinctiveness issue actually litigated necessarily determined hargis also argues allowing ttab decisions effect adversely affect registration process ttab narrowness hargis contends infer ttab proceedings supposed streamlined infringement litigation see brief respondent quoting ttab manual argument goes ttab decisions effect infringement litigation parties may spend time energy ttab thus bogging registration process concern change conclusion issue preclusion available unless evident astoria supra congress want streamlined process registration matters particularly dear congress authorized de novo challenges dissatisfied ttab decisions plenary review serves many functions ensuring streamlined process one moreover explained great many registration decisions issue preclusion obviously apply ordinary elements met registrations nothing say today relevant iv last turn whether categorical reason registration decisions never meet ordinary elements issue preclusion elements set restatement second judgments although many registrations satisfy ordinary elements mean none agree professor mccarthy issue preclusion applies issues two cases indeed identical rules collateral estoppel carefully observed mccarthy see also gilson iii ultimately board decisions likelihood confusion given preclusive effect basis eighth circuit primary objection issue preclusion ttab considers different factors whereas ttab employs dupont factors assess likelihood confusion eighth circuit looks similar identical factors identified squirtco instinct sound ssues identical second action involves application different legal standard even though factual setting suits may wright miller cooper federal practice procedure ed hereinafter wright miller however standard applies registration infringement begin matter registration infringement governed different statutory provisions often single standard placed different statutes foreclose issue preclusion see smith bayer slip neither matter ttab eighth circuit use different factors assess likelihood confusion one thing factors fundamentally different inor variations application essence legal standard defeat preclusion slip important federal law provides single standard parties escape preclusion simply litigating anew tribunals apply one standard differently contrary rule encourage evils issue preclusion helps prevent real question therefore whether likelihood confusion purposes registration standard likelihood confusion purposes infringement conclude least three reasons first operative language essentially fact registration provision separates likely cause confusion cause mistake deceive change see gilson explaining statutory test applies second language congress used lanham act provisions central trademark registration since least see act mar ch stat using likely cause confusion standard registration hardly accident third district courts cancel registrations infringement litigation adjudicate infringement suits seeking judicial review registration decisions see mccarthy reason think district judge case apply two separate standards likelihood confusion hargis responds text actually registration provision asks whether marks resemble infringement provision directed towards use commerce marks indeed according hargis distinction resembl ance use key trademark law century force argument true party opposing application register mark board often relies federal registration rights usages encompassed registration board typically analyzes marks goods channels trade set forth application opposer registration regardless whether actual usage marks either party differs brief amicus curiae see also explaining board typically reviews usages encompassed registration citing gilson ii mccarthy explaining registration mark shown application used goods described application must considered mark actually used means unlike infringement litigation board determination likelihood confusion exist resolve confusion issue respect usages brief amicus curiae hargis argument falls short however mistakes reason apply issue preclusion even many cases reason never apply issue preclusion ttab always consider usages district follow board applies different standard usages mark owner uses mark ways materially usages included registration application ttab deciding issue district infringement litigation contrast mark owner uses mark ways materially unlike usages application ttab deciding issue thus ttab consider marketplace usage parties marks ttab decision later preclusive effect suit actual usage marketplace paramount issue mccarthy materiality course essential trivial variations usages set application use mark marketplace create different issues trivial variations create different marks see generally explaining adding descriptive elements another mark generally negate confusion otherwise party escape preclusive effect adverse judgment simply adding immaterial feature mark law see restatement second judgments comment explaining issue must understood broadly enough prevent repetitious litigation essentially dispute stauffer chemical applying issue preclusion party sought litigate twice issue arising virtually identical facts factual differences legal significance fortiori ttab considers different mark altogether issue preclusion apply needless say moreover ttab decided issue district reason deference warranted similar reason eighth circuit erred holding issue preclusion apply ttab relied heavily appearance sound app pet cert undoubtedly cases ttab places weight certain factors happens aggrieved party seek judicial review fact ttab may erred however prevent preclusion judge colloton observed dissent preclusion prevent relitigation wrong decisions much right ones quoting clark clark see also restatement second judgments comment explaining refusal give first judgment preclusive effect based simply conclusion patently erroneous hargis also argues registration categorically incompatible issue preclusion ttab uses procedures differ used district courts granted edetermination issues warranted reason doubt quality extensiveness fairness procedures followed prior litigation montana see also parklane hosiery similar suggests sometimes issue preclusion might inappropriate always one disputes ttab district courts use different procedures notably district courts feature live witnesses procedural differences however defeat issue preclusion equity courts used different procedures law courts bar issue preclusion see reason think state agency elliott used procedures identical federal nonetheless held preclusion apply see rather focusing whether procedural differences exist often correct inquiry whether procedures used first proceeding fundamentally poor cursory unfair see montana categorical reason doubt quality extensiveness fairness agency procedures large part exactly see cfr instance although scope discovery board proceedings generally narrower proceedings reflecting fact often fewer usages issue ttab adopted almost whole federal rule civil procedure ttab manual see also conceivable course ttab procedures may prove particular issue particular case party may tried introduce material evidence prevented ttab ttab bar live testimony may materially prejudice party ability present case ordinary law issue preclusion however already accounts rare cases compelling showing unfairness made restatement second judgments comments eighth circuit likewise erred concluding hargis bore burden persuasion ttab party opposing registration bore burden see cfr ttab manual infringement action hargis defend decision ground hargis also contends stakes registration much lower infringement issue preclusion never apply ttab decisions issue preclusion may inapt amount controversy first action small relation amount controversy second preclusion plainly unfair restatement second judgments comment ew litigants spend defend claim wright miller hargis wrong however exception issue preclusion applies every registration contrary registration opposed good reason think sides take matter seriously benefits registration substantial registration prima facie evidence validity registered mark precondition mark become incontestable incontestability powerful protection see park fly dollar park fly holding incontestable mark challenged merely descriptive see also explaining determined receive nationally greatest protection given mong new protections created lanham act statutory provisions allow federally registered mark become incontestable quoting importance registration undoubtedly congress provided de novo review ttab decisions district incredible think district adjudication particular usages preclusive effect another district unchallenged ttab decisions different congress creation elaborate registration scheme many important rights attached backed plenary review confirms registration decisions weighty enough ground issue preclusion reasons eighth circuit erred case remand apply following rule long ordinary elements issue preclusion met usages adjudicated ttab materially district issue preclusion apply judgment appeals eighth circuit reversed case remanded proceedings consistent opinion ordered ginsburg concurring hardware petitioner hargis industries dba sealtite building fasteners dba east texas fasteners et al writ certiorari appeals eighth circuit march justice ginsburg concurring rightly recognizes great many registration decisions issue preclusion obviously apply ante contested registrations often decided upon comparison marks abstract apart marketplace usage mccarthy trademarks unfair competition ed registration proceeding character preclusion likel ihood confusion issue later infringement suit ibid understanding join opinion thomas dissenting hardware petitioner hargis industries dba sealtite building fasteners dba east texas fasteners et al writ certiorari appeals eighth circuit march justice thomas justice scalia joins dissenting today applies presumption congress enacts statutes authorizing administrative agencies resolve disputes adjudicatory setting intends agency decisions preclusive effect article iii courts presumption first announced poorly supported dictum decision applied since whatever validity presumption respect statutes enacted creation justification applying lanham act passed seeing reason conclude congress implicitly authorized decisions trademark trial appeal board ttab preclusive effect subsequent trademark infringement suit affirm decision appeals presumption favor administrative preclusion applies today first announced astoria fed sav loan assn solimino case confronted question whether claimants age discrimination employment act adea collaterally estopped relitigate federal judicially unreviewed findings state administrative agency made respect claim answered question negative concluding availability administrative preclusion issue statutory construction particular statute issue carrie implication federal courts recognize preclusion despite rejecting availability preclusion nevertheless dictum announced presumption favor giving preclusive effect administrative determinations congress failed expressly impliedly evince intention issue dictum rested two premises first congress understood legislate background adjudicatory principles second long favored application doctrines collateral estoppel issues res judicata claims determinations administrative bodies attained finality quarrel first premise serious doubts second astoria offered one decision predating enactment adea shore assertion congress legislated background principle favor administrative preclusion utah constr mining see astoria supra decision read broad proposition asserted like astoria utah construction discussed administrative preclusion dictum case arose contract dispute private contractor contract issue contained disputes clause providing administrative process concerning questions fact arising th decided contracting officer subject written appeal head department wunderlich act likewise provided administrative factfinding final conclusive later action fra dulent capricious arbitrary grossly erroneous necessarily imply bad faith supported substantial evidence disputes clause contract wunderlich act categorically state administrative findings factual issues relevant questions arising contract final conclusive parties required lower courts accept findings acknowledging decision rest ed upon agreement parties modified wunderlich act go comment decision harmonious general principles collateral estoppel create presumption based solely dictum bad enough principles utah construction referred far equivocal constitute familiar background principles common law sort base statutory inferences isbrandtsen johnson although utah construction asserted hen administrative agency acting judicial capacity resolves disputed issues fact properly parties adequate opportunity litigate courts hesitated apply res judicata enforce repose admitted courts used language effect res judicata principles apply administrative proceedings contradictory signals typically stuff background rules common law made cf kirtsaeng john wiley sons slip presuming congress intended retain first sale doctrine copyright statutes based doctrine impeccable historic pedigree occasion arisen astoria examine history administrative preclusion discovered issue far settled common law principles res judicata collateral estoppel applied decision competent jurisdiction aurora city west wall accord hopkins lee wheat restatement judgments comment pp rule came corollary requirement legally constituted known recognized law black law judgments legally constituted lacked jurisdiction enter legally binding judgment thus judgment preclusive effect ibid nineteenth century courts generally understood term competent jurisdiction include courts authority jurisdiction conclusively resolve dispute see wells treatise doctrines res judicata stare decisis pp black supra thus courts law courts equity admiralty courts foreign courts satisfy requirement ourt competent jurisdiction hopkins broad definition served interest finality supports preclusion doctrines without end never put litigation however broadly ourt competent jurisdiction defined require quite leap say concept encompasses administrative agencies recognized categorically different courts pearson williams cooper administrative agencies courts taking position agencies courts determinations judgments distinction stems constitution vests judicial power administrative agencies federal courts whose independence safeguarded certain constitutional requirements art iii one consequences allocation judicial power agencies possess limited ability act judicial capacity cases resolving traditional disputes private parties see infra therefore unsurprising federal courts including far hesitant today majority extend preclusion principles decisions administrative tribunals pearson example declined recognize preclusive effect decision immigration board writing justice holmes explained board instrument executive power consisted officials whose duties declared administrative statute ecisions similar type long recognized decisions executive department constitute res judicata technical sense ibid courts likewise declined apply general preclusion principles decisions administrative agencies example late circuit rely well settled doctrine res judicata equitable estoppel ordinarily apply decisions administrative tribunals churchill tabernacle fcc restatement judgments also reflected practice contained provision administrative preclusion explained address effect decisions administrative tribunals restatement judgments scope note rejected idea consistent practice favor administrative preclusion noting question whether decisions particular tribunal binding subsequent controversies depends upon character tribunal nature procedure construction statute creating tribunal conferring powers upon ibid consistent comment federal courts approved administrative preclusion narrow circumstances arguably involving claims government congress exercises broader measure century instance effectively gave preclusive effect decisions land department respect land patents held patents unreviewable federal mere errors judgment smelting kemp patent law conclusive matters properly determined land department commentators explained cases truly understood involve application res judicata collateral estoppel administrative agencies courts rather species equitable estoppel cooper supra see also freeman law judgments ed rev explaining immunity judicial review certain administrative decisions based upon doctrine res judicata governed exactly rules one commentator put res judicata apply strict technical sense decisions administrative agencies cooper supra history undercuts suggestion utah construction administrative preclusion widely accepted common law accordingly least statutes passed astoria reject presumption administrative ii light history agree majority decision apply administrative preclusion context lanham start lanham act enacted years said even dictum administrative preclusion established principle thus even one thought dictum utah construction sufficient establish principle favor preclusion conclusion warrant applying astoria presumption enactment construing act terms see reason conclude congress intended administrative preclusion apply ttab findings fact subsequent trademark infringement suit act says nothing indicate intent several features act support contrary inference first feature indicating congress intend preclusion apply limited authority act gives ttab act authorizes ttab determine decide respective rights trademark registration thereby withholding authority ttab determine right use trademark decide broader questions infringement unfair competition ttab manual procedure limited job description indicates ttab conclusions regarding registration never meant become decisive application administrative preclusion subsequent infringement suits see providing registration mark shall prima facie evidence validity registered mark shall preclude another person proving legal equitable defense defect giving preclusive effect ttab decision likelihood confusion around statutory limitation authority parties agree likelihood confusion central issue subsequent infringement suit second indication congress intend administrative preclusion apply lanham act provision judicial review ttab issues registration decision party dissatisfied decision may either appeal federal circuit file civil action district seeking review undisputed civil action district entail de novo review ttab decision ante although ordinary preclusion principles failure pursue appeal undermine issue preclusion ante availability de novo judicial review administrative decision true judicial review afforded act marks first opportunity consideration issue article iii congress deviated usual practice affording deference factfindings initial tribunal affording de novo review ttab decisions decision provide de novo review even striking light historical background choice congress passed lanham act year passed administrative procedure act following lengthy period disagreement courts deference administrative findings fact entitled receive direct review issue subject debate years varying results see generally dickinson administrative justice supremacy law sometimes refused review factual determinations administrative agencies smelting sometimes allowed lower courts engage essentially de novo review factual determinations see icc alabama midland reckendorfer faber early century began move toward review administrative determinations involving mixed questions law fact icc union pacific reserved authority review de novo jurisdictional facts crowell benson courts struggled determine boundary jurisdictional nonjurisdictional facts thus determine appropriate standard review administrative decisions see estep frankfurter concurring result noting casuistic difficulties spawned crowell attritions case later decisions although congress provided review administrative procedure act required de novo review lanham act need take side historical debate proper level review administrative findings fact conclude existence provides yet another reason doubt congress intended administrative preclusion apply lanham act iii addition unsupported precedents historical evidence majority application administrative preclusion raises serious constitutional concerns executive agencies derive authority article ii constitution vests executive power president art ii cl executive agencies thus part political branches government make decisions fixed rules law application governmental discretion policy dickinson supra see motor vehicle mfrs assn state farm mut automobile ins rehnquist concurring part dissenting part agency entitled assess administrative records evaluate priorities light philosophy administration constituted exercise independent judgment responsive pressures political branches perez mortgage bankers ante thomas concurring judgment federal administrative agencies part executive branch clear power adjudicate claims involving core private rights constitution judicial power belongs article iii courts shared legislature executive stern marshall slip see also perez ante opinion thomas historical evidence suggests adjudication core private rights function performed article iii courts least absent consent parties adjudication another forum see nelson adjudication political branches colum rev hereinafter nelson see also department transportation association american railroads ante thomas concurring judgment explaining certain core functions require exercise particular constitutional power one branch constitutionally perform extent administrative agencies consistent constitution function courts might able respect claims involving public rights see northern pipeline constr marathon pipe line plurality opinion see also nelson dickinson supra public rights belonging public whole see nelson whereas rights statutory entitlements bestowed government individuals see ex parte bakelite discussing claims arising government others nature require judicial determination yet susceptible historical treatment administrative preclusion consistent understanding discussed administrative adjudications given preclusive effect article iii courts involved rights like land grants see smelting context land grants recognized title passed government complete form judicial review available question became one private right johnson towsley wall true new deal era sometimes gave preclusive effect administrative findings fact tax cases construed implicate private rights see sunshine anthracite coal adkins tait western maryland administrative tax determinations may simply enjoyed special historical status case practice might best understood limited deviation general distinction public private rights see nelson trademark registration lanham act characteristics right registration creature lanham act confers important legal rights benefits trademark owners register marks ante internal quotation marks omitted registration merely statutory government entitlement one disputes ttab may constitutionally adjudicate registration claim see stern supra slip nelson contrast right adopt exclusively use trademark appears private property right long recognized common law chancery courts england country cases explained addressing congress first trademark statute enacted exclusive right use trademark created act congress depend upon enforcement ibid whole system property civil remedies protection existed long anterior act remained full force since passage ibid thus appears trademark infringement suit issue case might type must decided article iii judges article iii courts stern slip majority however article iii courts decide infringement claims central issue whether likelihood consumer confusion two trademarks already decided executive agency raises two potential constitutional concerns first may deprive trademark holder opportunity core private right adjudicated article iii see slip second may effect transfer core attribute judicial power executive agency cf perez ante opinion thomas explaining interpretation regulations force effect law likely core attribute judicial power transferred executive agency administrative preclusion thus threatens sap judicial power exists federal constitution establish government bureaucratic character alien system wherever fundamental rights depend upon facts finality facts becomes effect finality law crowell minimum practice raises serious questions majority adequately confront majority address distinction private rights public rights nature power exercised administrative agency adjudicating facts disputes fails consider whether applying administrative preclusion core factual determination dispute comports separation powers hold ttab decisions entitled preclusive effect subsequent infringement suit common law support general presumption favor administrative preclusion statutes passed decision astoria text structure history lanham act provide support preclusion disagree majority willingness endorse astoria unfounded presumption apply adjudication dispute analysis raises serious constitutional questions resolve case statutory grounds however leave questions another day respectfully dissent footnotes see brief respondent acknowledging administrative reclusion status part backdrop means courts may presume application absent contrary indication congress citing astoria brief respondent explaining utah construction determined administrative board factfinding preclusive effect article iii suit raising damages claims board jurisdiction dissenting colleagues argue utah construction courts hesitated apply administrative preclusion mistaken certainly applied statutes lanham act enacted prior decide reads history better endorsed utah construction importantly neither party historical accuracy reason decide whether preclusion unconstitutional issue us compare person shall use commerce mark connection sale offering sale distribution advertising goods services connection use likely cause confusion cause mistake deceive shall liable civil action registrant remedies hereinafter provided emphasis added trademark shall refused registration unless onsists comprises mark resembles mark registered patent trademark office likely used connection goods applicant cause confusion cause mistake deceive emphasis added parties dispute whether often ttab considers usages beyond listed application registration resolve dispute suffice say ttab adjudicates usage within authority adjudication ground issue preclusion see restatement second judgments footnotes also cited university elliott decision postdated enactment adea almost two decades primarily relied utah construction evidence background principle existing relevant time distinction reaches least far back england see jaffe right judicial review harv rev explaining since century england courts identified enforcement private right administrative agencies execution public policy see also hetley boyer croc jac eng reviewing actions commissioners sewers exceeded bounds traditional jurisdiction imposed citizens core private rights occasion consider whether discussion astoria elliott utah construction understood create background principle favor administrative preclusion apply matter statutory interpretation statutes passed decisions majority insists must apply presumption administrative preclusion repeatedly endorsed utah construction parties challenge historical accuracy ante regardless whether endorsed utah construction dictum never applied presumption administrative preclusion lanham act even description presumption dictum principle stare decisis requires us extend tool statutory interpretation one statute another without first considering whether appropriate statute cf cbocs west humphries thomas dissenting tare decisis designed principle stability repose become vehicle change whereby error one area metastasizes others thereby distorting law parties lack argument treat tools statutory interpretation claims forfeited example one party peppered brief legislative history opposing party challenge propriety using legislative history still consider bound rely upon true although commented past presumption administrative preclusion apply statutes bound apply lanham act even parties assumed original lanham act provided appeal customs patent appeals see stat