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Proving fraud 'to the hilt'

01-02-2011

Robert Kenney and Katie Peden

Since the Federal Circuit re-established the appropriate standard for proving fraud, subsequent decisions continue to provide further guidance on the application of the standard.

Since the Federal Circuit re-established the appropriate standard for proving fraud against the US Patent and Trademark Office (USPTO) to be “clear and convincing evidence” of deceptive intent in its August 2009 In Re Bose Corp. decision, subsequent decisions continue to provide further guidance on the application of the standard. In September, the Trademark Trial and Appeal Board (TTAB) offered clarification to the standard as it applies to the sufficiency of evidence in M.C.I. Foods, Inc. v Bunte.

M.C.I. Foods, Inc. (MCI) filed a petition to cancel the registration for mark ‘Cabo Chips’ owned by Brady Bunte (Bunte). MCI alleged prior use and likelihood of confusion in connection with its registrations for the marks ‘Cabo Primo’ and design, ‘Los Cabos’ and design, and ‘Cabo Classics’.

Both the MCI and Bunte marks were for food items in class 30. Bunte denied the allegations and filed a separate petition to cancel MCI’s Cabo Primo and design mark on the ground of fraud. Bunte alleged that the Cabo Primo mark had never been used on ‘tortilla chips’, which were listed in the registered goods. The TTAB proceeding consolidated both cancellation petitions.


TTAB, fraud, USPTO

WIPR

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