(Slip Opinion)
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` OCTOBER TERM, 2014
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`Syllabus
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`1
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` NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
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`
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` being done in connection with this case, at the time the opinion is issued.
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`
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` The syllabus constitutes no part of the opinion of the Court but has been
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` prepared by the Reporter of Decisions for the convenience of the reader.
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` See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
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`SUPREME COURT OF THE UNITED STATES
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`
`
` Syllabus
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`B&B HARDWARE, INC. v. HARGIS INDUSTRIES, INC.,
`
`
` DBA SEALTITE BUILDING FASTENERS ET AL., ET AL.
`
`
`
`
`CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
`
`THE EIGHTH CIRCUIT
` No. 13–352. Argued December 2, 2014—Decided March 24, 2015
`
`Respondent Hargis Industries, Inc. (Hargis), tried to register its trade-
`mark 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 ar-
`gued that Hargis was precluded from contesting the likelihood of con-
`
`fusion because of the TTAB’s decision. The District Court disagreed.
`
`The Eighth Circuit affirmed, holding that preclusion was unwarrant-
`ed 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. 8–22.
`
`
`(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
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`B&B HARDWARE, INC. v. HARGIS INDUSTRIES, INC.
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`Syllabus
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`does not compel a different conclusion. Pp. 8–12.
`
`
`(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 exhaust-
`ing the administrative process was a prerequisite to suit in court, giv-
`ing preclusive effect to the agency’s determination in that very ad-
`
`ministrative process could have rendered the judicial suit “strictly
`
`pro forma.” Id., at 111. By contrast, registration involves a separate
`proceeding to decide separate rights. Pp. 12–14.
`
`(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. 15–22.
`
`
`
`
`(1) Contrary to the Eighth Circuit’s conclusion, the same likeli-
`hood-of-confusion standard applies to both registration and infringe-
`ment. The factors that the TTAB and the Eighth Circuit use to as-
`
`sess 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 reg-
`istration provision asks whether the marks “resemble” each other, 15
`U. S. C. §1052(d), while the infringement provision is directed to-
`
`wards 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 us-
`ages 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. 15–19.
`
`
`(2) The fact that the TTAB and district courts use different pro-
`cedures suggests only that sometimes issue preclusion might be in-
`appropriate, not that it always is. Here, there is no categorical “rea-
`son 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 con-
`trary to the Eighth Circuit’s conclusion, B&B, the party opposing reg-
`istration, not Hargis, bore the burden of persuasion before the TTAB,
`just as it did in the infringement suit. Pp. 19–21.
`
`
`(3) Hargis is also wrong that the stakes for registration are al-
`ways too low for issue preclusion in later infringement litigation.
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`2
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` Cite as: 575 U. S. ____ (2015)
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`Syllabus
`When registration is opposed, there is good reason to think that both
`sides will take the matter seriously. Congress’ creation of an elabo-
`rate 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. 21–22.
`716 F. 3d 1020, reversed and remanded.
`ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
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`and KENNEDY, GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined.
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`GINSBURG, J., filed a concurring opinion. THOMAS, J., filed a dissenting
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`opinion, in which SCALIA, J., joined.
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` Cite as: 575 U. S. ____ (2015)
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`Opinion of the Court
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`1
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` NOTICE: This opinion is subject to formal revision before publication in the
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` preliminary print of the United States Reports. Readers are requested to
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` notify the Reporter of Decisions, Supreme Court of the United States, Wash-
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` ington, D. C. 20543, of any typographical or other formal errors, in order
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` that corrections may be made before the preliminary print goes to press.
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`SUPREME COURT OF THE UNITED STATES
`
`_________________
`
` No. 13–352
`_________________
`B&B HARDWARE, INC., PETITIONER v. HARGIS
`
`INDUSTRIES, INC., DBA SEALTITE BUILDING
`
`FASTENERS, DBA EAST TEXAS
`
` FASTENERS ET AL.
`
`
`ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
`
`
`APPEALS FOR THE EIGHTH CIRCUIT
`
`[March 24, 2015]
`
` 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’ re-
`sources 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
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`the context of trademark law. Petitioner, B&B Hardware,
`Inc. (B&B), and respondent Hargis Industries, Inc. (Har-
`gis), 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 be-
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` B&B HARDWARE, INC. v. HARGIS INDUSTRIES, INC.
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`Opinion of the Court
`lieves 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 regis-
`tration 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 regis-
`tered, B&B and Hargis were also
`litigating
`the
`
`SEALTIGHT versus SEALTITE dispute in federal court.
`In both registration proceedings and infringement litiga-
`tion, 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 ele-
`ments of issue preclusion are met. We therefore reverse
`the judgment of the Eighth Circuit and remand for further
`proceedings.
`
`
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`
`
`I
`A
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`Trademark law has a long history, going back at least to
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`Opinion of the Court
`Roman times. See Restatement (Third) of Unfair Compe-
`tition §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., Trade-Mark Cases, 100 U. S. 82, 92 (1879), Congress
`has long played a role in protecting them. In 1946, Con-
`gress enacted the Lanham Act, the current federal trade-
`
`mark 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
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`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). Regis-
`
`tration, 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 the goods or services specified in the
`certificate.” §1057(b). And once a mark has been regis-
`tered for five years, it can become “incontestable.” §§1065,
`1115(b)
`
`To obtain the benefits of registration, a mark owner files
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`

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` B&B HARDWARE, INC. v. HARGIS INDUSTRIES, INC.
`
`Opinion of the Court
`an application with the PTO. §1051. The application
`must include, among other things, “the date of the appli-
`cant’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 (ex-
`plaining that if an “application does not delimit any spe-
`cific 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 of Civil Procedure and Evidence. See 37
`CFR §§2.116(a), 2.122(a) (2014). The TTAB also allows
`discovery and depositions. See §§2.120, 2.123(a). The
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`Opinion of the Court
`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
`CFR §§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 apply-
`ing 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 regis-
`tration de novo. §1071(b); see also 3 McCarthy §21:20
`(explaining differences between the forums); cf. Kappos v.
`Hyatt, 566 U. S. ___ (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 de-
`fendant’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) (regis-
`tered marks); §1125(a)(1)(A) (unregistered marks). In
`infringement litigation, the district court considers the full
`
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`

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` B&B HARDWARE, INC. v. HARGIS INDUSTRIES, INC.
`
`Opinion of the Court
`range of a mark’s usages, not just those in the application.
`B
`Petitioner B&B and respondent Hargis both manufac-
`
`ture 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 wash-
`ers, 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 sepa-
`rate 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 prompted opposition proceedings before the TTAB,
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` Cite as: 575 U. S. ____ (2015)
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`Opinion of the Court
`complete with discovery, including depositions. B&B ar-
`gued 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 com-
`pany 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 regis-
`
`tered because it “so resembles” SEALTIGHT when “used
`in connection with fasteners that provide leakproof protec-
`tion 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 indus-
`try’ 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 Dis-
`trict Court that Hargis could not contest likelihood of
`confusion because of the preclusive effect of the TTAB
`
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` B&B HARDWARE, INC. v. HARGIS INDUSTRIES, INC.
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`Opinion of the Court
`decision. The 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. ___ (2014).
`
`
`
`8
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`
`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 straightfor-
`ward: 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
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`Opinion of the Court
`litigant deserves no rematch after a defeat fairly suffered.”
`
`
` Astoria Fed. Sav. & Loan Assn. v. Solimino, 501 U. S. 104,
`107 (1991).
`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 preclu-
`sion. 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 preclu-
`sion 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 Con-
`gress 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
`
`
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`B&B HARDWARE, INC. v. HARGIS INDUSTRIES, INC.
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`Opinion of the Court
`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 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
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`Construction); Kremer v. Chemical Constr. Corp., 456 U. S.
`461, 484–485, n. 26 (1982) (characterizing Utah Construc-
`tion’s discussion of administrative preclusion as a hold-
`ing); Restatement (Second) of Judgments §83(1), at 266
`(explaining that, with some limits, “a valid and final adju-
`dicative 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”).
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`Although apparently accepting Astoria and Utah Con-
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`struction,1 Hargis argues that we should not read the
`Lanham Act (or, presumably, many other federal statutes)
`as authorizing issue preclusion. Otherwise, Hargis warns,
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`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
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`giving issue preclusive effect to the TTAB’s decision would
`be unconstitutional. Instead, Hargis contends only that
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`1See Brief for Respondent 28 (acknowledging that administrative
`“[p]reclusion’s status as part of the common-law backdrop means that
`courts may presume its application” absent contrary indication from
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`Congress) (citing Astoria 501 U. S., at 110); Brief for Respondent 34
`(explaining that Utah Construction determined that “an administrative
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`board’s factfinding . . . could . . . have preclusive effect in an Article III
`suit raising damages claims over which the board had no jurisdiction”).
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` Cite as: 575 U. S. ____ (2015)
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`Opinion of the Court
`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 argu-
`ment is that, at least 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 oppo-
`sition to certiorari in this Court, Hargis seemingly con-
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`ceded that TTAB decisions can sometimes ground issue
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`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,
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`it is not before us. See Plaut v. Spendthrift Farm, Inc.,
`514 U. S. 211, 231–232 (1995).
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`We reject Hargis’ statutory argument that we should
`jettison administrative preclusion in whole or in part to
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`avoid potential constitutional concerns. As to the Seventh
`Amendment, for instance, the Court has already held that
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`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, 479–480
`(1962), TTAB decisions still can have preclusive effect in
`such suits. Hargis disputes this reasoning even though it
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`admits that in 1791 “‘a party was not entitled to have a
`jury determine issues that had been previously adjudi-
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`cated 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
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`B&B HARDWARE, INC. v. HARGIS INDUSTRIES, INC.
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`Opinion of the Court
`power to issue judgments with preclusive effect; that logic
`would not seem to turn on the nature of the competent
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`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 over-
`come these weaknesses.
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`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
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`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 preclu-
`sion offends Article III. But because this Court’s cases are
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`so clear, there is no ambiguity for this Court to sidestep
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`through constitutional avoidance.2
`III
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`The next question is whether there is an “evident” rea-
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`son why Congress would not want TTAB decisions to
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`2Our dissenting colleagues argue that Utah Construction’s conclu-
`sion that courts “have not hesitated” to apply administrative preclu-
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`sion, 384 U. S., at 422, was mistaken and certainly should not be
`applied to statutes—such as the Lanham Act—enacted prior to 1966.
`We do not decide who reads the history better. The Court has repeat-
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`edly endorsed Utah Construction and, importantly, neither party chal-
`lenges its historical accuracy. For the same reason, we do not decide
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`whether such preclusion is unconstitutional because the issue is not
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`before us.
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`Opinion of the Court
` receive preclusive effect, even in those cases in which the
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`ordinary elements of issue preclusion are met. Astoria,
`supra, at 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
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`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 con-
`cluded from this that Congress does not want unreviewed
`TTAB 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 deci-
`sion, 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 De-
`partment Stores, Inc. v. Moitie, 452 U. S. 394, 398 (1981)
`(noting “the res judicata consequences of a final, unap-
`pealed judgment on the merits”).
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`This case is also unlike Astoria, where a plaintiff claim-
`ing discrimination first went to an agency and then sued
`in court about the same alleged conduct. See 501 U. S., at
`111. The Court conclude