As we know from "Annals of Trademark Law:  It's a Bird!  It's a Boat!  It's a Super Duck!", the protectability of a trademark varies with its strength.  Generic marks get no protection, and others receive varying degrees — from "descriptive" to "suggestive" to "arbitrary" to "fanciful".

In 2000, a jury in Little Rock federal court pondered whether B&B Hardware's "Sealtight" trademark counted as suggestive or just descriptive.  B&B alleged that Hargis's "Sealtite" mark infringed.  The suggestive v. descriptive issue mattered because the owner of a descriptive mark must show that people identify the mark with a particular source — that the mark has acquired a "secondary meaning".  (E.g., you think of the company Bill Gates founded when you see a "Microsoft" or "Windows" sticker on a box.)  Interrogatory No. 1 said:

Do you find from a preponderance of the evidence that the term "Sealtight" used by Plaintiff B&B Hardware is a suggestive term or is merely descriptive?

The jurors, 11-1, wrote "NO" in the blank for Suggestive and "YES" in the one for Merely Descriptive.  They also refused to find that Sealtight "has acquired 'secondary meaning'".  The findings doomed B&B's case.

But B&B didn't give up.  Six years later, it sued Hargis again.  Hargis moved to dismiss on the ground that the jury verdict precluded — collaterally estopped — any contrary finding.  The district court granted the motion; B&B appealed.

The Eighth Circuit reversed and remanded.  B&B Hardware, Inc. v. Hargis Industries, Inc., No. 07-3866 (8th Cir. June 22, 2009).  It pointed to a "Notice of Acknowledgement" that the U.S. Patent and Trademark Office had given to B&B in 2006.  The NOA noted that, because no one contested the Sealtight mark for five years, the Sealtight mark had become "incontestable".  And incontestability saved the mark from challenges of mere descriptiveness and lack of secondary meaning.  The verdict therefore could not stand in the way of the intervening apotheosis of Sealtight.