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If the administrative judges at a cancellation proceeding at TTAB strike my pleading on fraud and won't allow me to amend it
Anonymous2 views6 answers
is this an appealable matter or should I take/remove it to federal court to decide the issue? The judges say that my allegations are immaterial to a fraud claim. What should be my next step?
Andra Marie VaccaroIntellectual Property Law AttorneyLos Angeles, CA ·
Honestly? You need to hire a lawyer who can review all of the materials and make a determination whether it is worth your moving forward. Usually fraud claims are very specific and require very specific evidence. Federal Courts are much less forgiving than the TTAB and if you remove it to Federal Court and your claims lack merit, you could be sanctioned and have to pay the other side's fees and costs. So my suggestion is to hire an lawyer proficient in both TTAB and Federal Trademark Law. Good luck.
You NEED to hire a trademark attorney. A cancellation proceeding at the TTAB is very involved and laymen have very, very, very little chance of succeeding. Moreover, your own trademark attorney can provide guidance on legal and business alternatives to the proceeding. Adversity is the FAILURE of people of good character who're genuinely trying to resolve a business dispute. It is the last resort, not the first [or second].
I take it that you're trying to cancel someone's trademark registration. You attempted to plead facts sufficient to find fraud in the procurement of the registration but the TTAB ruled that, even if all the facts you've plead are true, they do NOT constitute fraud.
Often in such a circumstance the TTAB will offer the opportunity to file an amended complaint that can include ADDITIONAL [but not contradictory] facts to support the dismissed claim. If you've been given that opportunity AND you can in good faith plead additional facts that you KNOW are true and which would support your fraud claim then, by all means, take advantage of that opportunity and file an amended complaint.
If you haven't been given the opportunity to amend then you're stuck with your original complaint. If that complaint asserts other grounds to cancel the registration then you can either (1) move forward to adjudicate those claims or (2) voluntarily dismiss the complaint or (3) whatever other creative strategy your own attorney believes wise. You may NOT, however, appeal that ["interlocutory"] dismissal order to a district court or the Federal Circuit because, as yet, there is no Final Judgment in the proceeding.
If the only grounds you plead in your complaint to cancel the registration was fraud, and that claim has now been dismissed with prejudice [that is, without leave to amend] then once you get a Final Judgment [which may be the dismissal order] you may appeal that judgment to a district court or the Federal Circuit. But DON'T. You clearly do not have the expertise to know how to plead a fraud claim. If you file a frivolous appeal YOU may end up having to pay the other side's attorneys' fees.
Again, you need to hire your own trademark attorney. Good luck.
Fraud must be plead with particularity, see e.g., FRCP 9(b), this is a heightened pleading standard. Additionally, you must know what each element of fraud is, and definitively allege facts which support each element. And such pleading will generally be subject to sanctions (i.e. a court order demanding you pay up) if your alleged facts have no support, see e.g., FRCP 11. Anyway, you need to hire a lawyer if you are serious about this.
Every claim of fraud in the TTAB got struck after Bose. If you're not a lawyer (and I assume you are not), and you really think that the other person committed fraud (as opposed to something else that gets you where you want to go), talk to a lawyer who does trademark law for a full time practice and knows the cases.