Thursday, February 26, 2015

Recommended Reading: Benschar and Springut, Does Reckless Indifference Suffice for Fraud?

Tal S. Benschar & Milton Springut ask "Does Reckless Indifference Suffice for a Cancellation Proceeding Predicated on Fraud?," 14 J. Marshall Rev. Intell. Prop. L. 20 (2014). They answer in the affirmative.

The CAFC's decision in In re Bose Corp. left open the question of whether reckless disregard for the truth is sufficient to make out a case for fraud on the USPTO. [See FRAUD-O-METER above].

This article answers that question in the affirmative. We show that at common law, reckless disregard for the truth has long been recognized as sufficient to make out a case of fraud, and that has been carried over to several federal statutory contexts. Under the long-established rule that common law terms must be interpreted consistent with the common law absent some compelling statutory language to the contrary, the Lanham Act’s cancellation-for-fraud provision must be interpreted as extending to recklessness.

The article also examines whether the question "might depend on the form in which particular representations are verified to the Trademark Office." And it suggest some changes that the Office might consider making to its verification forms to clarify this issue.

Read comments and post your comment here

Text Copyright John L. Welch 2015.


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