The United States Court of Appeals for the 8th Circuit recently ruled that the Trademark Trial and Review Board refusal to register a mark based upon a finding of likelihood of confusion does not preclude the filing of subsequent trademark infringement lawsuit in Federal Court. The case, B and B Hardware, Inc. v Hargest Industries, 716 F.3d 1020, denied the preclusive effect of a TTAB finding and also held that the District Court had properly excluded the finding from evidence. The TTAB had refused to register a trademark due to a likelihood of consumer confusion refusal. However, a jury found that there was no likelihood of confusion between the marks, after the judge had refused to allow evidence of the TTAB decision to go before the jury. In doing so, the 8th Circuit recognized that the TTAB is not an Article 3 court, the factors the TTAB considers for trademark registration purposes are different from those under the 8th Circuit likelihood of confusion test, and the burden of proof differed.