CAFC Reverses TTAB's Bose Fraud Ruling, Eviscerates Medinol
Stop the fraudits! It's a whole new ballgame at the TTAB after the U.S. Court of Appeals for the Federal Circuit yesterday reversed the Board's decision in Bose Corp. v. Hexawave, Inc., 88 USPQ2d 1332 (TTAB 2007). The Board had found that Bose committed fraud in its 2001 renewal of a registration for the mark WAVE for, inter alia, audio tape recorders and players. The CAFC ruled that the Board, "[b]y equating 'should have known' with a subjective intent," had "erroneously lowered the fraud standard to a simple negligence standard." The CAFC found "no substantial evidence that Bose intended to deceive the PTO in the renewal process," and it therefore reversed. In re Bose Corporation, 91 USPQ2d 1938 (Fed. Cir. 2009). [Oral argument here].
Bose acknowledged that it stopped manufacturing and selling audio tape recorders and players in 1996-97. Nonetheless, it did not delete those goods from the WAVE registration when filing for renewal. Bose contended that the renewal was proper "because owners of audio tape recorders and players continue to send their previously purchased goods to opposer for repair services and upon completion of the repair services opposer 'transports' them back to the owner." The Board found that "inasmuch as opposer was not using the mark in connection with audio tape recorders and players, the statement in the Section 8/9 renewal was false" and "not reasonable."
The CAFC took strong issue with the Board's seminal ruling in Medinol:
[D]espite the long line of precedents from the Board itself, from this court, and from other circuit courts, the Board [held] that "[a] trademark applicant commits fraud in procuring a registration when it makes material representations of fact in its declaration which it knows or should know to be false or misleading." *** By equating "should have known" of the falsity with a subjective intent, the Board erroneously lowered the fraud standard to a simple negligence standard.
The CAFC then made it clear that proof of intent to deceive is required to establish fraud: "Thus, we hold that a trademark is obtained fraudulently under the Lanham Act only if the applicant or registrant knowingly makes a false, material representation with the intent to deceive the PTO."
Subjective intent to deceive, however difficult it may be to prove, is an indispensable element in the analysis. Of course, “because direct evidence of deceptive intent is rarely available, such intent can be inferred from indirect and circumstantial evidence. But such evidence must still be clear and convincing, and inferences drawn from lesser evidence cannot satisfy the deceptive intent requirement.” Star Scientific, Inc. v. R.J. Reynolds Tobacco Co., 537 F.3d 1357, 1366 (Fed. Cir. 2008). When drawing an inference of intent, “the involved conduct, viewed in light of all the evidence . . . must indicate sufficient culpability to require a finding of intent to deceive.” Kingsdown, 863 F.2d at 876.
Bose's general counsel, Mark E. Sullivan, testified that he believed the statement that Bose was still using the mark was true when he signed the renewal application. The appellate court pointed out that "[u]nless the challenger can point to evidence to support an inference of deceptive intent, it has failed to satisfy the clear and convincing evidence standard required to establish a fraud claim."
The CAFC held that Bose did not commit fraud in renewing its WAVE mark, and consequently that the Board erred in canceling the registration in its entirety. However it agreed with the Board that "because the WAVE mark is no longer in use on audio tape recorders and players, the registration needs to be restricted to reflect commercial reality." [Subsequent Board order here].
TTABlog comments: Perhaps the test for fraud should be referred to as "knew or must have known" instead of "knew or should have known." Since it is most unlikely that one will catch an applicant red-handed at fraud, and it is highly likely that the applicant or registrant will claim innocence, one will have to prove fraud through convincing circumstantial evidence.
Looking to the future, how likely is it that a party to a TTAB proceeding will spend the time and effort to try to prove fraud under this "prove it to the hilt" standard?
It might be argued that, in light of this CAFC decision, an applicant or registrant will be better off not bothering to ask any questions or to investigate whether a mark is in use for all the listed goods. One way to focus an applicant's or a registrant's attention on the issue of use would be adopt my recent suggestion that the PTO require a specimen of use for every item listed in the application or registration. In other words, attack the problem from the front end, not that back end.
Comments, anyone?
Additional commentary:
- Michael Hall at his blog, Registration Ruminations (here), ponders the impact of Rule 11.18(b).
- Linda McLeod summarizes at Finnegan (here).
- Jack Clifford of Merchant & Gould comments (here).
- Joe Dreitler's pre-Bose article, entitled "Why the TTAB Got It Right in Medinol" (here).
- Jonathan Hudis of Oblon Spivak comments (here).
- Steve Baird at the DuetsBlog (here).
- Husch Blackwell & Sanders comments (here).
- Wilmer Hale (here).
- Fulbright & Jaworski (here).
Text Copyright John L. Welch 2009.
posted by John L. Welch @ 9/01/2009
31 comments
31 Comments:
I am a member of INTA and not AIPLA and I think it's remarkable that INTA did not enter an appearance as an amicus in this case. It's the most important trademark case of the year and only AIPLA showed up.
I would not like to see the PTO adopt a requirement that applicant's supply a specimen for each listed good - it could significantly increase the amount of attorney/client time involved in the application process and I would also expect to see disputes about the parsing of goods/services descriptions into individual elements
"a specimen of use for every item listed in the application or registration"
Do you know how impratical that would be from an administrative position? What's next, a declaration for every good in the application. I love lawyers who are so far removed from the real world.
While the CAFC's recognition that false statements made without intent to mislead should not constitute fraud, it seems that there should a rebuttable adverse inference drawn when the question is simply use vs. non-use, rather than whether a particular kind of activity is proper use or not. The Medinol registrant was not all that sympathetic - there were two products, so determining whether the mark was in use should not have been a Herculean exercise. If the Board's experiment with Medinol encouraged registrants to read the declarations under oath carefully before signing, this cannot be regarded as a bad thing.
The specimen idea is a good one, especially since the likely reason behind the one-specimen-per-class limit was the purely practical one of storage. This is a non-issue with e-filing. While there is still some risk for this for those that are "old school" in their PTO dealings, it seems a simple matter to assess a surcharge if someone insists on filing actual physical specimens. Certainly, a specimen for each good/ service should be demanded for incontestability, and since incontestability is typically claimed with the first Section 8, there is no real added burden in just imposing the requirement on Section 8.
One thing I found very interesting in the opinion is that the panel did not expressly overrule Torres. In fact, in footnote 2, the Court seems to leave the door open to argue that Torres stands and allows for an alternative "reckless disregard" standard to prove fraud. This, I guess, is similar to your proposed "must have known" language. But I think it is a strained interpretation of Torres. I think the Court should have expressly overruled Torres.
Regarding the requirement to show proof of use on every item, one may want to consider the USPTO's system and applications like 77/975,476, which will most likely overwhelm its ability to process that many specimens. Better, perhaps, to have clients that understand the requirements or, in questionable cases, request that they prove to you that they have use on everything before submitting anything to the USPTO.
Mr. Anonymous, I assure you that I am not that far removed from the real world. However, other readers may disagree.
As to my suggested requirement of a specimen for every item, suppose that, coupled with that requirement, the PTO accepted catalogs or webpages showing the mark and displaying many goods, without necessarily showing the mark adjacent to or on every item?
I don't really care one way or the other if the PTO implements a policy of requiring evidence for each item listed. It will increase attorneys fees, and make it harder to file 1(a) applications or SOUs, but I can live with that. What I cannot live with, and what I am so relieved that the CAFC concluded, is the idea that Board judges can try to change the law of fraud and make it into some sort of ridiculous strict liability standard of analysis. This entire era has been disastrous jurisprudence and I would like to see some more judges like Judge Walsh populate the Board and a lot fewer like Mermelstein and Sams.
"the PTO accepted catalogs or webpages showing the mark and displaying many goods, without necessarily showing the mark adjacent to or on every item?"
Mr. Welch,
You raise a very good point. How effective will a requirement that a specimen show the mark for each good be when the Board accepts just about any specimen that you submit? In other words, when the level of proof showing that the mark is actually being used as a trademark has been signifcantly reduced by Board precedent, what purpose does your proposal serve?
Ury,
One panel of the court cannot overrule a prior panel. Only the entire court, sitting en banc, can do that. So this panel decided to "interpret" Torres instead.
I agree with Frank who also found it remarkable that AIPLA weighed in with a brief favoring a reversal while INTA did not even file a brief on that the standard ought to be in the TTAB. Given my comments below, it is indeed a much more significant issue to those who practice in the prosecution and clearance area than many other briefs that have been filed in the past.
• It’s a shame when a federal appeals court adopts language and cases from an amicus brief advocating a position, without (apparently) reading the cases.
• It’s a shame when a federal appeals court cites to its own decision in an appeal from a civil patent suit (Star Scientific) for its standard of the evidence required for fraud in a trademark office decision on registration without acknowledging that fact in its opinion.
• It’s a shame when a federal appeals court makes no effort to explain its unstated assumption that there is no difference between registering or renewing a trademark in the PTO and upholding a patent in civil litigation. They are totally dissimilar and only a patent lawyer would find the two can be put in the same box. Specifically, there is no recognition in the decision that the legal rights of an issued patent are totally different and vastly superior to the legal rights of a trademark registration. Nor is there even a recognition that the financial implications of enforcing a patent in patent litigation can be in the hundred of millions of dollars whereas trademark litigation rarely involves anything more than an injunction, and the monetary stake is almost never much more than a few thousand dollars, which means that it is not worth the time and effort to bring a fraud claim in the TTAB that requires tens of thousands of dollars in legal fees for no chance of any monetary recovery. (continued)
(continued from prior comment)
• Only a fool – or an appeals court clerk who had never got a client, much less had to send them a bill – would ever again recommend that a client seek to cancel or oppose a trademark application in the TTAB on the grounds of fraud. The reasons are because in the real world, the two questions clients always ask are: 1) what will it cost; and 2) what are my chances of success. The answers are a) more than $100,000 given the evidence required by the CAFC and b) about zero. If you want to keep a client you will not waste your client's money bringing a case or even alleging fraud in the TTAB.
• It’s a shame that the CAFC did not even mention that given no one who wants to keep their clients will allege fraud, that there is no real way to prevent those who commit fraud (or at least "flagrant neglect") on the Trademark Office from doing so. There is no reason to fear any adverse consequences. And, as someone who has read more search reports and Official Gazettes in the past 31 years than I can begin to count, I can state with firsthand knowledge that our Trademark Register is now filled with tens of thousands of applications and registrations that were accompanied by sworn declarations that were flat out false. The practical effect is that this decision condones that practice of not being honest with PTO, or even being a good lawyer and asking the client the right questions. Worse, any lawyer in this practice understands the import of this decision – do not under any circumstances ask your client about their use - so that if there is ever any litigation they can testify “I had no idea that it had to be real use”. Just have them sign it and file it, the PTO won’t challenge you and no 3rd party will waste their money to do so. If they do, you testify, “Gee, I can’t recall being asked if it was in use, I sure didn’t want to commit fraud.”
• And mostly, it is a shame that the US amended its trademark law in 1989 to allow intent to use applications but require legitimate use for registration and renewals, but our law is now such that the system is the worst of both worlds – we have no use required for filing and no use or token use permitted to renew or obtain registration. Since the AIPLA brief failed to mention that the law on use was dramatically changed in 1989, neither did the CAFC.
• No, the sky is not falling, but it is a very sad day to read a decision by an appeals court which did not even mention the public policy implications of what anyone who actually practices trademark law knows – we have a trademark registration system that is filled with registrations and applications that do not comply with the law requiring use/bona fide intent to use and no cost effective/practical means of ridding them from the register, much less deterring others from engaging in similar behavior going forward.
I agree with Sanjiv's statements about encouraging applicants and registrants to carefully read their allegations of use.
It may not be "fraud" if there's no intent to deceive, but I think *under some circumstances* an applicant/registrant violates Trademark Rule 11.18 when it makes a false statement. For example, if an applicant claims it's using its mark on catheters and stents, when in reality it's only using the mark on catheters, it seems to me that the applicant has almost certainly violated its certification under that Rule that it has made "an inquiry reasonable under the circumstances" that the "allegations and other factual contentions have evidentiary support."
In the Herbaceuticals case, 86 U.S.P.Q.2d 1572, the Board not only cited Medinol, but also this Rule [then Rule 10.18] in finding that the applicant "was obligated to inquiry" as to the goods on which the mark was used before signing the statement of use.
So putting fraud aside, what about an applicant's/registrant's violation of its duty to inquire under Trademark Rule 11.18?
1. If fraud is shown to the Bose standard, is the remedy still cancellation of the whole class or just the wrongly-included goods/services? Is there any chance that the remedy is voiding of the entire registration despite the TTAB's G&W Laboratories decision, which limited cancellation to the affected class (seems unlikely to me)?
2. The Bose court left open in footnote #2 the question of whether "reckless disregard of the its truth or falsity satisfies the intent to deceive requirement." That "reckless disgard" language was one way, under Medinol, for showing fraud. How much a hole is this footnote in Bose? Bose concerned a mistake OF LAW -- Bose's counsel was wrong and unsubstantiated in purportedly thinking repair services were good enough to claim tape recorders as branded goods. The common Medinol scenarios are mistakes OF FACT, not law. What about these commonplace situations: (a) the declarant made NO effort to check to see whether ALL goods/services are currently being sold or (b) the declarant must have known (not just should have known) that some goods/services were not currently being sold? Will such facts be sufficient "clear and convincing" proof of fraud?
Thoughts? Seems to me that there's a lot left to litigate.
The consensus seems to be that after this CAFC reversal, it will become too expensive to allege fraud under the new standard. At the same time, the former fraud standard had extremely harsh results, i.e., cancellation of the registration in its entirety, when at times, particularly when trying to overcome an Office action, the deletion of a class of goods/services or even particular items may be the only result you needed. In this particular BOSE decision the result feels right, because a long-standing company that uses its goods under its mark, with plenty of established goodwill, would otherwise have lost its full registration rights due to one or two items. One fair outcome for these cases would be that if the registrant was found to have committed fraud when signing its Affidavit of Use or registration declaration, that those items or Classes where the registrant is unable to demonstrate use, that said registration be limited to removing those items, rather than cancelling the entire registration.
The problem, as I see it, with the former fraud standard, was that its punishment far outweighed the crime, at times. At least the new standard restricts the harsh result to those who subjectively intended to commit fraud. Perhaps future cases will better reflect real-world issues of cost and time, while balancing fairness with administrative practicality.
I'm afraid I have to agree with my friend Joe Dreitler's comments. This is an awful decision that if applied literally will have the practical effect of eliminating fraud allegations. Think about it: the owner of a sole proprietorship can list 14 different kinds of goods in a SOU, sign the declaration, testify in a deposition that he never intended to commit fraud he simply misunderstood the rules ... and that will be the end of the fraud claim. Another practical issue: what will the TTAB do with all of the pending fraud cases?
I think it is easy to understand why the Trademark Board had used a “should know...to be false or misleading” standard, in that the language was lifted from the Federal Circuit’s very decision in Torres. How odd that the Federal Circuit chastised the Trademark Board for relying on that very language -- clearly set forth i Torres -- on the grounds that it was allegedly inconsistent with binding precedent.
One immediate question is how the Trademark Board will treat circumstantial evidence from which an inference of fraud could be recognized. The Federal Circuit’s discussion is hardly clear-cut. The court cited to an earlier decision of the Board holding that in evaluating a charge of fraud “[t]here is no room for speculation, inference [!!] or surmise.” Yet, the Federal Circuit recognized, as the Board did in Medinol, that a proper inquiry can consider “the objective manifestations” of subjective intent, which can be “inferred [!!] from the circumstances and related statement made.” The Federal Circuit now holds that the evidence from which such an inference is drawn must be “clear and convincing,” and moreover, the conduct at issue must indicate “sufficient culpability” to require a finding of intent to deceive. If this decision and its reasoning is not a recipe for further litigation, I don't know what is. The practical effect of this decision is the devolution of renewal filings into a "pure heart and empty head" standard.
Do you think the PTO should request an en banc re-hearing? Should it petition for certiorari?
As Justice Holmes said, "Great cases, like hard cases, make bad law. For great cases are called great not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment." In many ways this was a "great case" and INTA was wise to stay on the sidelines. Though the CAFC's decision strains to make the issue a straightforward one (i.e., negligence does not equal fraud), this was a nettlesome case on its facts. Consider as one example, the general counsel's admission that some of the goods listed on the underlying registration had never been sold under the mark.
I guess my issue, which I should've made clearer, is this:
If the remedy for mere non-use is deletion of the non-used goods from the application/registration, and if the remedy for *fraudulently* including non-used goods in an application/registration is still cancellation of the entire class in which the goods fall, what’s the penalty for an "intermediate" case in which the applicant/registrant failed to make the requisite inquiry under Rule 11.18 but didn’t commit fraud because it lacked an intent to deceive?
I suppose the answer might be that there’s only non-use or fraud as grounds for opposition/cancellation, and that there’s no intermediate penalty for failing to inquire under Rule 11.18. Maybe if you can’t go the distance and show flat-out fraud, then only the non-used goods will be deleted. Still though, seems like this outcome wouldn’t provide much of an incentive for an applicant to make sure it’s using its mark on the goods it’s saying it is.
I would respectfully disagree with both Mr. Dreitler and Mr. Reidl. This is an outstanding decision and to whatever extent the court relied on the AIPLA brief, such reliance was well founded. It was brilliantly written and well reasoned by Susan Hightower. Without question, careful and deliberative thought went into the formulation of the position. The attempts to justify poor reasoning in the "new" fraud as articulated by the Board the past 5 years fall short. The Board has been rescued by the CAFC from its own flawed reasoning. I have watched as judges like Judge Walsh have tried to reel in the Board in order to preserve some of their decisions. But the fact is that materiality as discussed in University Games is secondary to intent to deceive. If there is no evidence of fraud, then materiality really doesn't matter. The CAFC hit this one out the park. And finally, I would point out that prior to Medinol people successfully challenged registrations for non-use without abusing the fraud doctrine. It is shameful and wrong for practitioners to use a fraud charge as a matter of course simply because some judges decided to try to change the standard for what fraud is.
I wholeheartedly agree with Mr. Drietler on his points.
Like Mr. Drietler, I too have seen many false declarations, particularly in litigation. This decision is extremely frustrating because, as hard as it was before to show fraud, I now know that it just became significantly easier to lie to the USPTO without fear of any repercussions.
And I would add, why is there any sympathy for companies that cannot perform the simple due diligence of figuring out what they use the mark on for the renewal? For example:
"a long-standing company that uses its goods under its mark, with plenty of established goodwill, would otherwise have lost its full registration rights due to one or two items."
To this, I can only say, "so what?"
A Federal registration is not a guaranteed right under the Constitution, but provides tremendous rights to the owner. In comparison, the requirements for renewal are de minimis. If a trademark owner, in conjunction with the assistance of counsel, refuses to expend minimal effort to determine whether they are actually using the mark with the goods/services, should they really expect to maintain that registration?
If there's no punishment beyond removing unused goods/services from the registration, then there's no incentive to do any due diligence at all. Getting caught means that you lose what you shouldn't have had in the first place. That's not punishment, it's a correction.
Worse, with this decision, now it's virtually impossible for a third-party to dislodge that registration. The fraudulent registrant really has nothing to fear.
In any event, if the company has established a lot of goodwill in the mark, then they always have their common law rights to fall back on.
I think sanity has prevailed. As for John's idea that one specimen for each item in the certificate should be submitted at the time of renewal, (the so called front end attack on the problem) I do not favor that approach. We have essentially a common law system of trademark rights, and registration enhances those rights. Because of the doctrine of closely related goods, plucking an item out of a long list in a single class rarely makes much difference. Most of the time a partial cancellation under Section 7 can fix a case where there is use on most of the goods, but not all, provided the non-use has gone on for a while. Proof of fraud is not required under section 7, simply non-use for three years.
I am relatively new to the practice, and I appreciate everyone's comments tremendously. At the same time, I would like to add a thought or two. I cannot help but think that the decision in Medinol used "fraud" in order to reach the desired end in that case, and the TTAB facilitated/allowed the ensuing fraud attacks to go forward successfully in order to combat issues in the, "trademark registration system that is filled with registrations and applications that do not comply with the law requiring use/bona fide intent to use," as noted by Mr. Dreitler. That being said, perhaps with this Bose case we should move beyond the idea of "fraud" on the PTO and on to a different framework where the Trademark Rules, TTAB rules, etc. apply to the instances of concern—false statements in filings, no accountability (at least it’ll be difficult to ensure), use and bona fide intention issues, a glutted up and unreliable register, etc. That new framework could take any of a number of forms: new rules for attorneys and their clients, proof of use for all the claimed goods, proof of use for all claimed goods at the time of renewal, or a determination of already existing standards such as what it may really mean to say that an “inquiry [made by an attorney or other filing party is] reasonable under the circumstances…” 37 CFR 10.18(b)(2) et seq. (old CFR citation). I just don’t see the TTAB letting the Register be a free for all, or even permitting for too long the danger of such a level of unaccountability. “Fraud” likely was not the ideal word/standard/answer for the issue the TTAB wanted addressed in Medinol, and the resulting Cancellations may have been too harsh a penalty for such violations, but I think the TTAB will be back with another standard and parties will need to be wary of their declarations soon enough.
I have to express agreement with John Welch on his sound suggestion that the USPTO require "a specimen of use for every item listed in the application or registration." I also like Mr. Welch's additional, more practical qualification of that suggestion that perhaps a catalog or other non-specimen level documentation of use of the mark be required by the USPTO. This is because I agree with Mr. Dreitler's comments and beliefs to the extent that the USPTO does need to eliminate "deadwood" registrations and to prevent applicants from frivolously obtaining registrations covering goods/services not being used. However, this TTAB fraud jurisprudence of the past few years seems to have been a bit too draconian and its application was getting messy.
Moreover, I always thought it was inconsistent of the USPTO to require applicants and registrants to submit only one specimen per entire Class of goods/services to obtain or maintain a registration yet subsequently cancel a registration or sustain opposition to an application because the applicant/registrant could not submit proof of use of every good or service listed in each Class. That seems like a double standard and made it difficult to advise clients, especially the less sophisticated ones. How do we explain to a client in simple terms that one specimen per Class is needed to obtain/maintain the registration at the same time that we explain to them the need to be able to show use of the mark on every item in each Class?
I realize the onerousness and sometimes impractical nature of this requirement but we trademark attorneys could use some additional justification for our existence and a means to earn our keep. It seems that trademark prosecution has become so much easier over the last decade with the harmonization of our trademark rules with other countries (and online filing) - which is a good thing - that the value and necessity of needing a trademark attorney has almost come into question (consider that the USPTO almost considered allowing non-attorneys to become examiners a few years ago). And if we are to value the registry and ensure that each issued registration has meaning and complies with our laws, it should not be too much of a burden to make an applicant expend a little more effort or spend some more money to ensure that they get it right when they register their mark(s).
Two quick comments:
1) Thanks for turning on comments on The TTABLOG! It's more of a moderation pain, but in posts like this, the comments become as informative as the initial post. This has been a fascinating read
2) To the poster above who mentioned the CAFC reference to a Patent case discussing fraud without acknowledgement that it was a patent case. It's been my (admittedly brief) experience that the CAFC goes out of its way to avoid differentiating between Patent and Trademark when applying non IP specific concepts. I've seen that in a Res Judicata case, and here where they considered Fraud as well.
It is too early to ring the death knell for trademark fraud claims. The court re-aligned fraud on the PTO in the trademark context with inequitable conduct in the patent context. Inequitable conduct claims run rampant through the patent system. The practical consequences will depend greatly on how the Board judges circumstantial evidence of fraud. By not overruling Torres, the Federal Circuit opened the door to a potentially liberal interpretation of the sufficiency of such evidence. There will certainly be more to come.
It has seemed to me the USPTO has created the situation that has filled the trademark registers with non-complying marks by de-professionalizing the trademark process. The USPTO has done this by making it easy for anyone to file a trademark application; whether of not they know what they are doing. Given this approach it is ironic that the TTAB then started hammering those same people with Fraud and lack of Bona Fide Intent. This seem to be a characteristic of the Internet age, a little knowledge go a long long way. I read Bose to be a recognition of some of the practicalities of trademark registration and renewal. The CAFC is not attempting to do away with Fraud, rather is moving it away from its prior strict liability position to what fraud traditional has been based on, intentional acts. The decision leaves room for judgment calls and mistakes. Given the potential or actual value of a mark, it seems to me that clients should be cheering this decision, unless they need fraud to get themselves out of infringement.
In light of the Federal Circuit's decision on August 31 rejecting the Medinol fraud standard, is there any possibility that registrations recently restricted or canceled under Medinol could now be reinstated?
Does anyone find it important that Bose's gc signed the declaration and submitted it to outside counsel which, most definitely, should have known that use required more than repair?
Also, doesn't this open the door for pro se trademark prosecutors, which would have a lower 'subjective' standard in fraud cases?
Oh, how the pendulum swings.
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