Friday, November 20, 2009

TTAB Rejects Another Fraud Claim for Inadequate Pleading

The Board yesterday rejected another fraud claim for failing to meet the strict pleading requirements of Rule 9(b), Fed. R. Civ. P. Ayush Herbs, Inc. v. Hindustan Lever Ltd. Co., Opposition No. 91172885 (November 19, 2009) [not precedential]. The Board also threw in Rule 11, Fed. R. Civ. P., and Trademark Rule 11.18 as a warning shot for future pleaders.

Here, applicant’s counterclaim is insufficient because it does not set forth facts supporting its allegation that “opposer has never used or has not continuously used for five consecutive years its AYUSH HERBS mark for candy products of any kind and possibly other products, such as skin lotion,” which is made only “on information and belief” and which appears to constitute nothing more than two alternative allegations with no particular basis in facts known to applicant or which it is likely to find support following investigation or discovery. It is also insufficient because it uses the “should have known” language, clearly decried in Bose; and because there is no allegation that opposer’s statements were made with intent to deceive the USPTO.

If applicant uncovers facts during discovery which it ascertains provide a basis for a counterclaim of fraud that can be pleaded in compliance with Federal Rules 9 and 11 and USPTO Rule 11.18, then applicant may move to amend its pleading to reassert such claim. [p. 13].

Text Copyright John L. Welch 2009.


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