In a prior article (“Fraud Doctrine on Trademark Applications Remains Minefield,” NYLJ, Aug. 19, 2009), we discussed developments related to claims of fraud on the Patent and Trademark Office in obtaining trademark registrations and recent Trademark Trial and Appeal Board (TTAB) opinions on that issue. As anticipated, the U.S. Court of Appeals for the Federal Circuit weighed in on the issue in an Aug. 31 opinion titled In re Bose Corp. (Opposition No. 91/157, 315) and rejected the six-year-old standard for showing fraud—”should have known” of the falsity—which the TTAB had previously adopted in Medinol Limited v. Neuro Vasx Inc., 67 USPQ2d 1205 (TTAB 2003). That standard, according to the Federal Circuit, constituted mere negligence and did not rise to the level of fraud. Rather, fraud requires a showing of “subjective intent to deceive.” As explained in the opinion, intent to deceive generally implicates a knowing falsehood, which the facts in Bose simply did not support.
We discuss here what impact that decision will have on practice before the TTAB, what issues remain unresolved and what future developments in this area may be expected.
Standard Not Resolved
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