CAFC Slighlty Modifies Chutter Fraud Opinion Per USPTO Request

The CAFC granted Intervenor USPTO's petition for panel rehearing, seeking a slight modification of the CAFC's opinion in Great Concepts, LLC v. Chutter, Inc. The court then entered judgment in favor of Great Concepts, reversing the TTAB's finding of fraud and holding that "a Section 14 cancellation proceeding is not available as a remedy for a fraudulent Section 15 incontestability declaration." The Board's decision may be found here, and the CAFC's original opinion here. Great Concepts, LLC v. Chutter, Inc., Appeal No. 2022-1212 (modified January 10, 2024) [precedential].

The Board had ordered cancellation of Great Concepts' registration for the mark DANTANNA'S for restaurant services, finding that Great Concepts' counsel had signed the Section 15 Declaration with reckless disregard for the truth, and ruling for the first time that "reckless disregard is equivalent to intent to deceive and satisfies the intent to deceive requirement" for a fraud claim.

The CAFC ordered a revision of one sentence on page 13 of its original opinion. The sentence originally read as follows:

Section 14 lists numerous bases on which a third party may seek Board cancellation of a registered mark, including likelihood of confusion, abandonment, dilution, deceptiveness, and if the mark is merely descriptive or has become generic or functional. See 15 U.S.C. § 1064.

In the modified opinion, that sentence now focuses on Section 14(3), since the registration at issue was more than five years old, and the available grounds for cancellation were therefore limited:

Section 14(3) lists numerous bases on which a third party may seek Board cancellation of a registered mark at any time, including that the mark has become generic for the goods or services, is functional, has been abandoned, the registration was fraudulently obtained, or the mark is being used to misrepresent the source of the goods. See 15 U.S.C. § 1064(3).

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Text Copyright John L. Welch 2024.