Two days ago, I somewhat critiqued Judge Nelson's analysis of when circuit precedent is sufficiently inconsistent with a subsequent Supreme Court decision to no longer bind a panel.
Today, Judge Bress authors a lengthy opinion that, in my view, is exactly the right way to do about doing precisely that.
Personally, I hope (and think) that the defendant will prevail in this trademark dispute, just as it did in the district court and in the Ninth Circuit's original opinion. I'm not at all sure why the plaintiff even thinks it's worth the money to litigate this one.
But Judge Bress nonetheless thinks that the intervening Supreme Court opinion requires that the district court take another look at this one, notwithstanding the panel's original affirmance, and presents a darn good argument for that result.
Regardless, it's a good exegesis on how intervening and circuit precedent properly interact.
