Precedential No. 18 (Part I): Fraud! TTAB Grants Petition to Cancel BLOOKE Registration for Bicycles

Findings of fraud by the TTAB are rarer than a White Sox fan in Boston. The last fraud ruling was tossed out by the CAFC (Chutter) because Section 14 of the Lanham Act, which lists the bases for cancellation of a registration, does not include fraud committed in connection with a Section 15 incontestability declaration (as opposed to fraud in obtaining or maintaining a registration). [TTABlogged here]. In this case, the Board found fraud in respondent's underlying application for the mark BLOOKE for bicycles, parts, and accessories, notably ruling that respondent's false statements regarding use of its mark were made either with the intention to deceive the USPTO or with reckless disregard for the truth. Look Cycle International v. Kunshan Qiyue Outdoor Sports Goods Co., Ltd., 2024 USPQ2d 1424 (TTAB 2024) [precedential] (Opinion by Judge Karen S. Kuhlke).

Petitioner Look Cycle, owner of the mark LOOK for bicycles and bicycle parts, alleged likelihood of confusion, nonuse, and fraud. This blog post, the first of two, will focus on the fraud claim, the most important of the three claims for our purposes.

The Board, seemingly determined to nail this Chinese registrant, noted that "to the extent the petition for cancellation does not adequately plead fraud, fraud has been tried by implied consent pursuant to Fed. R. Civ. P. 15(b), and the petition is deemed amended to conform to the evidence."

The Board found that the evidence demonstrated "knowing intentional deception." But "even if the evidence were not sufficient to reveal such intention directly, at a minimum, the facts of this case demonstrate reckless disregard for the truth from which we infer the requisite intent." "[T]he Board has held that intent to deceive can be inferred from recklessness, in particular a reckless disregard for the truth." Chutter, Inc. v. Great Mgmt. Grp., LLC, Opp. No. 91223018, 2021 WL 4494251, at *6 (TTAB 2021), reversed on other grounds sub nom. Great Concepts, LLC v. Chutter, Inc., 90 F. 4th 1333 (Fed. Cir. 2023).

Respondent’s specimen of use (for pumps for bicycle tyres) included purported invoices from three transactions prior to the filing date of its underlying application, but the addresses for the three purchases were non-existent. Furthermore, respondent offered no testimony or evidence regarding "use [sic] of the 'pumps for bicycle tyres'" displayed in the specimens of use, but did produce documents during discovery supposedly disclosing an event held prior to April in 2021 in the United States but shown to be referencing a 2023 event in Shanghai China.

In addition, respondent submitted a declaration signed on its behalf by its attorney - whose actions are imputed to respondent - falsely verifying that the specimen showed respondent's use of the mark for the goods identified in the application, and including an averment that "[t]o the best of the signatory’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, the allegations and other factual contentions made above have evidentiary support."

[B]ased on the record in this case, the statements in this declaration have been shown to be false, constitute material representations, and were signed by Respondent’s attorney on behalf of Respondent. In view of the evidence in this case, we find this constitutes intentional deception, or at a minimum, reckless disregard for the truth from which we infer intent to deceive. In sum, Respondent submitted the application declaration containing false material representations of fact with the intent to deceive the USPTO

And so, the Board sustained the claim of fraud.

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TTABlogger comment: The Board did not mention that the attorney who filed the underlying use-based application, Jonathan G. Morton, was suspended from practice before the U.S. Patent and Trademark Office for a period of twenty-four months, commencing on April 24, 2022., as stated in the Final Order of suspension (pdf here), Morton acknowledged that did not conduct reasonable inquiries regarding the specimens of use that he submitted on behalf of his clients.

Text Copyright John L. Welch 2024.