The U.S. Supreme Court this Monday agreed to hear a case on trademark tacking to resolve the current circuit split. In Hana Financial, Inc. v. Hana Bank, the high court will address whether trademark tacking is an issue of law or an issue of fact for a jury to decide.
Appeals courts are split as to who should decide this question. The Federal Circuit and the Sixth Circuit consider the issue of tacking a question of law; however, the Ninth Circuit considers it a question of fact for the jury.
The Supreme Court’s answer to the “judge-or-jury” question in tacking could have broader implications as the current circuit split over tacking parallels the circuit split as to whether a “likelihood of confusion” is an issue of fact or law.