Prove Your Fraud Case Post-Bose: Carole F Barrett and Elizabeth Wang survey lessons learned from TTAB fraud decisions since the landmark Bose decision

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Article originally published in Managing IP Magazine, March 1, 2011.

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The golden age of proving that an opponent has committed fraud in US trade mark disputes has passed. Although once a powerful line of attack in contesting trade marks, this approach has been sharply curtailed in evolving case law by the Trademark Trial and Appeal Board (TTAB) as it has applied the new standard imposed by the Court of Appeals for the Federal Circuit in its landmark August 2009 decision, In re Bose Corp. That ruling – in a case involving audio equipment manufacturer Bose – replaced the brighter-line standard embraced by the Board several years earlier with the far murkier intent to deceive standard. Since then, the Board has shown a strong reluctance to delve into fraud at all. Some general guidelines can be discerned from the Board’s more recent decisions discussed here.

Companies once relied on the ability to accuse their opponents of having committed fraud on the USPTO as an easy way of knocking out an entire trade mark registration. However, since In re Bose, a 2009 case that changed the standard for proving fraud claims, that path has become much more difficult. It remains to be seen just what combination of evidence and pleading will suffice to prove fraud to the Board. In this new environment, companies seeking to protect their own trade marks or to challenge others should proceed with a higher degree of caution and diligence than before in bringing and defending fraud claims.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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