Upon seeing/hearing Orchid, how many will commit Orchard to memory instead?
Based on my experience, in residing on Orchid Lane more than a quarter-century, I’d venture to say, far more than you might believe — a real appreciable number.
Just this past weekend, during the age of “social distancing” guidance, someone having our
The United States Patents Quarterly has been a resource used by intellectual property lawyers for a very long time. Most of the decisions published in USPQ are patent decisions, but there are a large number of trademark decisions too, especially those decided by the USPTO and TTAB.
As the image above reveals, an admittedly weathered
Once upon a time, and for decades thereafter, trademark fraud claims were highly disfavored. They were criticized as unproductive litigation diversions — “often pled,” but “rarely proven.”
To succeed — during that lengthy period of time — the alleged fraud had to be “proven to the hilt,” with “clear and convincing evidence,” leaving nothing to
One of the unfortunate aspects of trademark practice is the permission that exists in the law to challenge the motives and intentions of people.
Unfortunate, because this permission is frequently abused, especially by less experienced trademark counsel, or perhaps when the strength of a case doesn’t seem like enough without injecting an unhealthy dose of
Trademark fraud claims aren’t going away, despite the fact that the Trademark Trial and Appeal Board (TTAB) has not found fraud in a single trademark opposition or cancellation since the Federal Circuit decided In re Bose in 2009, rejecting the prior “knew or should have known” standard in favor of the much more difficult
–Dan Kelly, Attorney
Last May, I reported on a Ninth Circuit Court of Appeals decision opining on the descriptiveness of the “Would You Rather…?” trademark registration. Subsequent to the Ninth Circuit’s decision, the case returned to the United States District Court for the Central District of California and is now styled Spin Master, Ltd.
Aaron Keller was busy yesterday making weighty predictions about the basis for our next economy: The Designed Economy.
As I prepare to provide attendees at the Midwest IP Institute tomorrow with a trademark fraud update — today, I thought I’d provide a preview — and even go out on a small limb — making a couple of predictions of my own, relating to the far more scintillating topic of trademark fraud before the United States Patent and Trademark Office (USPTO).
As you may recall last year, I wrote about the Court of Appeals for the Federal Circuit’s (CAFC) groundbreaking decision In re Bose, here, here, here, and here, in which the CAFC rejected the Trademark Trial and Appeal Board’s (TTAB) less stringent "knew or should have known" negligence standard of fraud, instead coming down in favor of a much more stringent — and difficult to prove standard — subjective intent to deceive the USPTO.
Over the last year, much attention has been given to the fact that the CAFC left open and chose not to decide, in In re Bose, the question of whether a "reckless disregard for the truth" may suffice in proving the necessary subjective intent to deceive. Many argue that "reckless disregard" should suffice in proving fraud for the sake of the integrity of the U.S. trademark system, to ensure that trademark owners and their counsel are kept honest and/or don’t become lazy or complacent about the solemnity of the oath in their trademark filings.
Reading the tea leaves, I’m predicting that the TTAB will not wait for the CAFC to decide the issue and the TTAB will rule that "reckless disregard" constitutes a sufficient level of culpability to infer a specific intent to deceive. If so, what does that mean? What kind of trademark conduct might satisfy a "reckless disregard" standard?Continue Reading Trademark Fraud = Reckless Disregard For The Truth?
Trademark types: As promised, here are some of my more detailed thoughts and perspectives (at least for the time being) on the most significant trademark case of the year: In re Bose.
Thanks to Thomson Reuters for asking me to share them with their readers. I look forward to some great dialogue
As promised, here are some additional thoughts (beyond the very frank and practical non-legal advice already shared by Jason Voiovich) about Lion’s Tap’s trademark infringement case against McDonald’s over the “Who’s Your Patty?” slogan.
Here’s the multi-million dollar question: What did McDonald’s know and when did they know it? Those are questions likely
Today is a really, really big day for trademark types.
As many of us have been saying for a couple of years now, trademark fraud (i.e., fraud on the U.S. Trademark Office) continues to be one of the hottest issues facing trademark owners and the attorneys who represent them. Perhaps after today, not so much,