Trademark Fraud on the USPTO

Meeting the Challenges of Pleading and Proving Fraud After Bose

Recording of a 90-minute premium CLE webinar with Q&A

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Conducted on Wednesday, November 10, 2010

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Course Materials

This CLE course will provide guidance for counsel to trademark owners, applicants and practitioners on the rapidly developing post-Bose case law and the reckless disregard standard. The panel will offer strategies for meeting the challenges of pleading and proving fraud at the TTAB.


In the year since the Federal Circuit Court of Appeals handed down its standard changing decision in In re Bose, the Trademark Trial and Appeal Board (TTAB) has issued rulings that provide some guidance for counsel on how to plead and prove fraud.

While the Bose decision dramatically changed the landscape for pleading and proving trademark fraud, clearly rejecting the TTAB’s prior Medinol “knew or should have known” standard, and now requiring a subjective intent to deceive the USPTO, it left many unanswered questions over which to grapple.

Recent TTAB rulings shed some light on these questions. Counsel must understand how the TTAB and the district courts are now addressing fraud to be able to meet the increased challenges of pleading and proving fraud and the related claims of void ab initio and no bona fide intent.

Listen as our authoritative panel of trademark attorneys examines the rapidly developing post-Bose case law, reviews the possible reckless disregard standard, examines the arguments in favor of the different standards, and offers valuable insights and best practices for operating under the evolving standard. Now that trademark fraud is more difficult to prove, the panel will also discuss the closely-related claims concerning bona fide intent and void ab initio.



  1. TTAB post-Bose trademark fraud cases
    1. M.C.I. Foods, Inc. v. Brady Bunte (TTAB 2010)
    2. Meckatzer Löwenbräu Benedikt Weiß KG v. White Gold, LLC (TTAB 2010)
    3. DaimlerChrysler Corp. and Chrysler LLC v. American Motors Corp. (TTAB 2010)
    4. E.&J. Gallo Winery v. Quala S.A. (TTAB 2009)
    5. Ayush Herbs, Inc. v. Hindustan Lever Ltd. Co. (TTAB 2009)
    6. Asian and Western Classics BV v. Lynne Selkow (TTAB 2009)
    7. Enbridge Inc. v. Excelerate Energy (TTAB 2009)
  2. Applying the Bose standard
    1. Honest misunderstanding
    2. Inadvertance
    3. Negligence and gross negligence
    4. Reckless disregard for the truth
    5. Conduct of “sufficient culpability” to infer a subjective intent to deceive
    6. Fraud remedies and the possibilities of curing fraud
    7. Viability of any of the post-Medinol TTAB decisions
    8. Impact of CAFC decisions on patent inequitable conduct
  3. District court treatment of trademark fraud in post-Bose era
  4. The no bona fide intent and void ab initio claims
  5. Reading the tea leaves, best practices and pointers


The panel will review these and other key questions:

  • What is the current state of the law concerning allegations of fraud before the TTAB?
  • What are the next steps for plaintiffs and defendants in the event of fraud pleadings?
  • What strategies and procedures should trademark owners utilize to mitigate the risk of fraud allegations?


Baird, Stephen
Stephen R. Baird

Winthrop & Weinstine

Mr. Baird heads the Intellectual Property and Trademark and Brand Management Practice Groups, and his practice...  |  Read More

John L. Welch
John L. Welch

Of Counsel
Lando & Anastasi

Mr. Welch represents clients in patent, trademark, copyright, unfair competition, and domain name lawsuits across...  |  Read More

Joseph R. Dreitler
Joseph R. Dreitler

Bricker & Eckler

He practices all aspects of trademark, copyright, advertising and Internet law, with particular emphasis on counseling,...  |  Read More

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