Takeaway: Litigants are not barred by res judicata to raise every possible defense early on in litigation.
After a decade long trademark battle involving Lucky Brand, a famous jean manufacturing company, and Marcel Fashions Group, a small rival company, the Supreme Court weighed in on the case. The Supreme Court, by unanimous vote, ruled that Lucky Brand was not barred by res judicata from raising a defense that the Second Circuit said it could have raised at a much earlier stage in the litigation. The Supreme Court reasoned that the earlier case was much too different for preclusion to apply and different action was challenged, as well as different claims in the 2011 and 2005 actions. Therefore, Lucky Brand was not precluded from raising new defenses as the case progressed and “involved different marks, different legal theories, and different conduct.” The issue of res judicata is particularly important in the “the trademark context, where the enforceability of a mark and likelihood of confusion between marks often turns on extrinsic facts that change over time.”
Image Credit: www. supremecourt.gov/DocketPDF/18/18-1086/122111/20191112144946360_18-1086.bs.brief.pdf