Tuesday, March 22, 2005

TTAB Finds SOU Fraudulent, Invalidates "PHYSICIANS COMPLEX" Registration

And the hits just keep on coming on W-F-R-A-U-D! The TTAB invalidated another registration on the ground of fraud in Physicians Formula Cosmetics, Inc. v. Cosmed, Inc., Cancellation No. 92040782 (March 11, 2005) [not citable].

In its Statement of Use, Registrant Cosmed, Inc. "affirmed to the PTO that [it] had used the involved mark on all of the listed goods. . . ." During discovery, however, Cosmed's counsel stipulated that Cosmed had never used the PHYSICIANS COMPLEX mark on several of the cosmetics products listed in its registration. Cosmed's president testified that his brother, as Treasurer, signed the Statement of Use: "It was that we intended to use it."

Petitioner Physicians Formula Cosmetics, Inc. amended its Section 2(d) petition for cancellation to add a claim of fraud, and then succeeded on its partial summary judgment motion on that added ground. The Board found that Petitioner had carried its burden to prove its allegation of fraud "'to the hilt' with clear and convincing evidence."

"Specifically, the stipulation regarding respondent's non-use of certain goods [sic] identified in the registration, combined with the above-quoted testimony of respondent's president, establish that when respondent signed the statement of use, respondent knew, or should have known, that the averment regarding use of the mark on all of the goods identified therein was false."

The Board agreed with Petitioner that Cosmed's excuse -- that it intended to use the mark on all the goods in question -- was legally insufficient.

The Board needed only seven pages to recite the facts and explain its reasoning. In light of current case law, including Medinol Ltd. v. Neuro Vasx, Inc., 67 USPQ2d 1205 (TTAB 2003), no other result was possible.

Text ©John L. Welch 2005. All Rights Reserved.


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