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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…
Just over two years ago, we reported on the CAFC’s landmark trademark fraud decision of In re Bose, here, here, and here.
In addition, I wrote a piece for Thomson Reuters’ Client Times Online called True Lies, Trademark Fraud, and the Medinol Detour: The Federal Circuit Reverses In re Bose."
Our friend…
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?
A recent domain name decision under ICANN’s Uniform Domain-Name Dispute-Resolution Policy (UDRP Policy), captioned Bin Shabib & Associates (BSA) LLP v. Hebei IT Shanghai ltd c/o Domain Administrator, found reverse domain name hijacking, under some rather interesting, if not questionable circumstances. The Rules that govern the UDRP Policy define Reverse Domain Name HiJacking…