What do “Grand Canyon West,” “Elle Belle,” and “Xel Herbaceuticals” have in common? All three are trademarks that have been canceled for reason of fraud by the Patent and Trademark Office’s Trademark Trial and Appeal Board following the TTAB’s stringent decision in Medinol Ltd. v. Neuro Vasx, Inc. Trademark owners and their lawyers have lived with fear and anxiety since that 2003 ruling, which severely ratcheted up the stakes in the trademark application process. Removing the need for an opposing party to show any intent to deceive, Medinol said that fraud was committed by a trademark applicant if it made one false material statement in an application that the applicant “knew or should have known was false.”

Now the first appeal in line from a Medinol ruling is in front of the U.S. Court of Appeals for the Federal Circuitand it has taken an unexpected twist. In the case Bose Corp. v. Hexaware, Inc., the TTAB found that Bose had committed fraud in its 2001 renewal of a registration for the mark WAVE for products including audiotape players. In the opinion of trademark lawyer John Welch of Lowrie, Lando & Anastasi and author of The TTABlog, “TTAB’s fraud jurisprudence may have reached a new high (or low)” in this case, with “the board’s ruling on the fraud issue . . . particularly precarious.” The TTAB found fraud because Bose included tape players on its Wave trademark application, and the company had ceased making tape recorders years before. But Bose says there was a justifiable reason for leaving the tape recorders on its application: The company still offers customers warranty and postwarranty repair, in which it directly handled and serviced the devices.

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