Fraud Ruling By TTAB Makes Obligations Clear

In Nationstar Mortgage LLC, v. Mujahid Ahmad (Opposition No. 91177036 decided Sept. 30, 2014), the Trademark Trial and Appeal Board (TTAB) made it clear that Applicants are “obligated to read and understand” what is being signed and “investigate the accuracy of his statements in the application to confirm they had evidentiary support prior to signature and submission to the USPTO.” The TTAB distinguished this case from In re Bose Corp., 580 F.3d 1240 (Fed. Cir. 2009), which involved “a nuance of trademark law that applicant may have incorrectly interpreted”. The TTAB reiterated its position that “[t]he language in the application that the ‘applicant…is using the mark…’ is clear and unambiguous.”

Not only was the credibility of the Applicant strained and ultimately rejected, but the testimony by two witnesses under oath was also rejected. The witnesses claimed to have received documents that were submitted as specimens five years prior to their depositions-- which also happened to be before the applicant’s company, identified on the documents, existed. Most telling, according to the Board was the ability of these witnesses to testify “firmly about a matter apparently beyond the recall of applicant”.

The Applicant was held to have made “false statements about his own industry and his own activities, knowing the requirements…” The evidence did not support a finding, let alone an inference, that the false statements were made with a reasonable and honest belief that they were true.

As stated by the Board: “the conclusion that applicant committed fraud on the USPTO seems, to us, to be inescapable.” Failing to obtain counsel until after the opposition was filed did not shield the Applicant from a finding of fraud. Nor was it sufficient to amend the filing basis after the opposition was filed.

Applicants who hope to gain advantage by avoiding use of counsel should take notice.