Higher Standard to Prove Fraud on the Trademark Office

The Federal Circuit recently reversed a decision by the Trademark Trial and Appeal Board (TTAB) involving fraud on the Trademark Office.  The TTAB had ruled that the registrant committed fraud in renewing its trademark registration by maintaining goods in the registration that it no longer manufactured.  In this and numerous pervious cases, the TTAB had been equating a “should have known” standard with subject intent to defraud.  The Federal Circuit held that, in using this test, the TTAB had “erroneously lowered the fraud standard to a simple negligence standard.”  The Federal Circuit further held that proof of intent to deceive is required to establish fraud.  In this particular situation, the Federal Circuit found no evidence of an intent to deceive the Trademark Office and reversed the TTAB’s decision canceling the registration.  However, the Federal Circuit did note that the registration needs to be restricted to the appropriate goods.  In re Bose Corp., Appeal No. 2008-1448 (Fed. Cir. 2009).