2nd Cir: Marcel v Lucky Brand Dungarees re GET LUCKY – Plaintiff Asserts Defense Preclusion

Marcel and Lucky litigated use of the GET LUCKY and LUCKY marks three times.  The first lawsuit, in 2001, resulted in a release.  The second lawsuit, in 2005, revealed in early motion practice that the parties disagreed as to the scope of the release.  However, Lucky did not assert its interpretation of the release as a defense at trial. Now, in the third lawsuit, Lucky asserts its interpretation of the release. The issue for the Second Circuit is whether claim preclusion encompasses defense preclusion, and if so, is Lucky precluded here from asserting a defense relating to the release, which defense it could have asserted in the 2005 lawsuit, but did not. As to whether claim preclusion can prohibit defenses: We are aware of no authority unequivocally prohibiting defenses from beingsubject to the principle of claim preclusion.    Lucky Brand, in essenceacknowledging this dearth of authority, depends almost entirely on language froma leading treatise,…

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