The Trademark Trial and Appeal Board Signals that the Obligation to Avoid Fraud in Trademark Filings Extends to Counsel

The Trademark Trial and Appeal Board (the Board) has continued its unwavering focus on fraud with a precedential decision in Hachette Filipacchi Presse v. Elle Belle, LLC, Cancellation No. 92052991 (April 9, 2007). The Board reiterated the rule established in the seminal case of Medinol Inc. v. Neuro Vasx Inc., 67 USPQ2d 1205 (TTAB 2003)—that fraud is a strict liability claim, which does not turn on subjective intent—but for the first time expressly applied the rule to counsel, as well as to applicants and registrants.

On a motion for summary judgment, the Board reviewed the registration owned by registrant Elle Belle for the mark ELLE BELLE for “clothing articles for men, women and children, namely, shirts, trousers, vests, jerseys, pants, pajamas, tshirts, socks and stockings, singlets, corsets, garters….” The Board found that it was undisputed that Elle Belle did not have any use for clothing articles for men and children, and only had use for certain of the women’s clothing articles listed in the application at the time of filing. Rejecting each of Elle Belle’s rationalizations for its inaccurate trademark filing, the Board cancelled the registration.

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