Wednesday, September 05, 2007

Submitting Bogus Specimen of Use is Fraud, Says TTAB, Not Surprisingly

Well, here's a fraud finding that we can all agree with: In obtaining its registration, Respondent submitted a specimen of use that was actually a copy of Petitioner's product packaging. The Board entered judgment summarily against Respondent on the ground of fraud. "By relying on a label obtained from petitioner's videocassette box to support [its] own allegation of use, respondent knowingly made false and material misrepresentation in connection with its application." Warner Bros. Entertainment, Inc. v. The Kaplan Trust, Cancellation No. 92043813 (August 22, 2007) [not precedential].

Respondent's Specimen of Use

Petitioner sought to cancel a registration for the mark THE BOWERY BOYS for production and distribution of motion pictures and television programs, asserting likelihood of confusion and fraud. Petitioner claimed prior use of the identical mark for motion picture and television program distribution and pre-recorded videotapes. The Board had no difficulty in finding a likelihood of confusion.

As to Respondent's specimen of use, the Board found no genuine issue of material fact that "respondent submitted a fabricated specimen in support of its registration, namely a very slightly altered but essentially identical copy of one of petitioner's videocassette labels." The Board concluded that respondent fraudulently obtained its registration.

Text Copyright John L. Welch 2007.


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