If there is a motion pending before the Trademark Trial and Appeal Board that will dispose of a CLAIM res judicata against the Petitioner 's one claim (not other claims) is the Petitioner allowed to file in federal district court the same wrongly pleaded claim to escape the TTAB's decision? I know that TBMP 510.02 refers to a motion which disoses a case but how about a claim?
1 Answer from Attorneys
Res judicata requires a final judgment, and not just an order on a claim. If the motion does not result in a final judgment, then there is no res judicata effect. The claim could theoretically proceed in federal court with the classic "race to judgment" scenario -- assuming that one or the other tribunal does not stay its action pending completion of the first.
You really, really need to get a lawyer here.