TTAB Tosses Out Yet Another Bogus Fraud Claim
In this battle of Blue Collar breweries, Opposer claimed that Applicant committed fraud on the USPTO when it included "beer" in its application to register since it had never used the mark BLUE COLLAR BREWERY in connection with beer. The Board granted applicant's motion for summary judgment on the fraud claim because applicant made no false statement. Blue Collar Brewery, Inc. v. Blue Collar Brewery, LLC., Opposition No. 91219820 (December 28, 2015) [not precedential].
Applicant originally included beer in its application, but only under a Section 1(b) intent-to-use basis for registration. The goods for which applicant claimed a Section 1(a) use basis did not include beer, but rather were: "Beer making kit; Beer wort; Extracts of hops for making beer; Hop extracts for manufacturing beer; Malt extracts for making beer; Processed hops for use in making beer."
During prosecution, applicant deleted beer and all the other Section 1(b) goods. It never claimed use of its mark for beer.
We find as a matter of law that Applicant never claimed it was using the mark in commerce in connection with “beer” or, for that matter, any of the goods applied-for under Section 1(b) of the Trademark Act as of date on which the underlying application was filed. Opposer thus cannot meet the first element of the ground of fraud, namely, that Applicant made a false statement in connection with these goods.
The Board therefore summarily dismissed the fraud claim.
Opposer also claimed that the term "brewery" in the applied-for mark is deceptively misdescriptive of the identified goods under Section 2(e)(1). The Board found that applicant failed to show the lack of a genuine issue of material fact on that issue, and so the Board denied that part of applicant's summary judgment motion.
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TTABlog comment: Another fraud claim that probably could have been knocked out at an earlier stage of the proceedings: i.e., at the discovery/settlement conference.
Text Copyright John L. Welch 2015.