Friday, December 17, 2010

Frivolous Fraud Claims: A Suggested Sanction

I've run into several frivolous fraud claims recently, which led me to wonder whether the Board should issue some kind of sanction against attorneys and parties that make such bogus allegations. Of course, monetary sanctions are not possible, but mere dismissal of the fraud claim seems not enough. Then I got to thinking about Leo Stoller, perhaps the most sanctioned litigant in TTAB history. [Are such records kept?]

My favorite sanction comes from S Industries Inc. v. S&W Sign Co., Opposition No. 102,907 (Dec. 16, 1999) [not citable]. There, aside from Stoller's usual stunts regarding questionable mailing dates and service of papers, and his reports of non-existent settlement negotiations, Stoller also filed a groundless motion for summary judgment. That did it! The TTAB ordered Leo to copy by hand Rule 11 of the Federal Rules of Civil Procedure and certain sections of the Trademark Rules of Practice, and to file a signed copy thereof with the Board.

There you have it! Suppose the Board issued a similar sanction to an attorney and/or party that files a frivolous fraud claim? Require the attorney to copy by hand Rule 11, Fed. R. Civ. P., attach a copy of the Board's sanction ruling, and send it to the client for signature, following which the document must be filed with the Board? That would open up some eyes.

We might even call it a "Stoller sanction," in honor of you-know-who.

Text Copyright John L. Welch 2010.


At 11:32 AM, Anonymous John Huff said...

Appreciate the post John. Shall we call this the Ghost of Trademark Chrismas' Past? I see your cited decision came in December as well. Still, in terms of sanctions it was hard not to see the TTAB's as akin to the many times Bart Simpson has been ordered to write sentences on the chalk board, two of which were: "This punishment is not boring and pointless." and "I do not have diplomatic immunity."

At 2:21 PM, Anonymous Josh said...

You could post that photo of Leo every day and I wouldn't get sick of it. It really captures his essence.


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