Friday, May 23, 2008

Ten TTABlog Questions About Fraud

While I traveled from Berlin to London yesterday, questions kept popping into my head regarding the Board's "Twenty Questions" fraud decision, TTABlogged yesterday. It seems to me that University Games raises more questions than it answers. Here are ten questions that came to my mind:

1. Shouldn't an applicant who corrects an alleged error in its verified listing of goods or services have the burden to explain how the error occurred and why it should be correctable, rather than presuming the error to be innocent?

2. Is there to be no consequence whatsoever to filing a verified but false declaration as long as it is corrected prior to publication and applicant has an acceptable excuse?

3. Does the fact that third parties, when conducting a trademark search, may be influenced by the erroneous listing of goods or services in a pending use-based application, deserve any consideration on the fraud issue?

4. Should the declaration form be changed to say that the applicant verifies the listing of goods and services, except that applicant retains the right to correct any errors?

5. What evidence would overcome the rebuttable presumption of no bad intent?

6. Would an applicant who does not speak English be more likely to avoid a fraud ruling by proving innocent error than an English-speaking applicant?

7. Why deem precedential a ruling in which only two of the three judges agree on the parameters of the fraud doctrine?

8. Rather than issue broad pronouncements regarding correction of an erroneous declaration, should the panel members, and particularly Judge Walsh, have confined their rulings to the actual facts at hand?

9. If discovery reveals that the original error was not deliberate but was reckless, would that overcome the rebuttable presumption, or would that be fraud?

10. Does it make sense that correction of an error one day before publication eliminates fraud, but if the correction is made two days later, applicant is deemed to have committed fraud?

Text Copyright John L. Welch 2008.


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