CAFC Hears Oral Argument in Bose Fraud Appeal

Oral argument (slow-loading .mp3 here) was held before the CAFC yesterday, May 6th, in Bose Corp. v. Hexawave, Inc., Appeal No. 2008-1448. The TTAB, in Bose Corp. v. Hexawave, Inc., 88 USPQ2d 1332 (TTAB 2007) [not precedential], found that Bose had committed fraud in its 2001 renewal of a registration for the mark WAVE for, inter alia, audio tape recorders and players. [TTABlogged here and here].


Bose acknowledged that it stopped manufacturing and selling audio tape recorders and players in 1996-97. Nonetheless, it did not delete those goods from the WAVE registration when filing for renewal. Bose contended that the renewal was proper "because owners of audio tape recorders and players continue to send their previously purchased goods to opposer for repair services and upon completion of the repair services opposer 'transports' them back to the owner." The Board found that, "inasmuch as opposer was not using the mark in connection with audio tape recorders and players, the statement in the Section 8/9 renewal was false" and "not reasonable."

Interestingly (at least to me), the argument begins with a quotation from my December 2008 Allen's Trademark Digest article (here) at page 8, questioning the Board's ruling in Bose:

The Board’s ruling on the fraud issue seems particularly precarious. There may have been no case law that supported Bose’s position on the use issue, but there did not seem to be any case law directly to the contrary. So one must ask whether the Board went a bit overboard in finding Bose’s position so unreasonable as to be fraudulent?

After listening to the oral argument, I think the CAFC is going to agree with me.

Text Copyright John L. Welch 2009.