TTABlog Bonus: Your Very Own FRAUD-O-METER™
Some say that a picture is worth a thousand words, and that is certainly true with regard to the TTABlog FRAUD-O-METER™ brand legal indicator. We all know that the CAFC in In re Bose Corporation jettisoned the TTAB's "knew or should have known" standard for fraud set out in Medinol v. Neuro Vasx, ruling that the Board had "erroneously lowered the fraud standard to a simple negligence standard." The appellate court also held that proof of intent to deceive is required to establish fraud and it indicated that even "gross negligence" is not enough, but it declined to address the issue of whether "reckless disregard for the truth" would suffice.
The FRAUD-O-METER™ illustrates the current state of trademark fraud jurisprudence: the now defunct Medinol standard is depicted by the grey arrow resting in the "Negligence" wedge, while the white arrow, representing our post-Bose uncertainty, unsurely leans toward the "Reckless Disregard" wedge.
If the chart looks a bit blurry, then I suggest that you (1) move closer to your computer screen; (2) check your eyeglass prescription; or (3) double click on the chart for a larger version that you can print out or save as your computer wallpaper.
The next time you think you have a fraud case, pull out your FRAUD-O-METER™ and take a guess as to where the facts of your case fall. If you are the accused party, you apparently may safely fess up to gross negligence but not reckless disregard for the truth. For the accusing party, don't settle for proof of gross negligence; go for at least reckless disregard for the truth. [Just don't ask me how to tell the difference.]
TTABlog note: A hat tip to Nate Harris of Lando & Anastasi, LLP, for his assistance in putting the final touches (i.e., the arrows) on the chart.
Copyright John L. Welch and Nathan T. Harris 2010.