Posts Tagged: "bad faith"

On Wednesday, June 21, the U.S. Court of Appeals for the Federal Circuit (CAFC) ruled in a nonprecedential opinion that a Florida district court correctly dismissed a UK-based patent owner’s infringement case after he willfully disobeyed the court and disrupted the enforcement of a court order. The ruling is the second time that the UK resident, Yoldas Askan, lost a patent infringement lawsuit against FARO Technologies. Askan first sued FARO, alleging that the firm’s 3D scanner product infringed on claims in three of his U.S. patents. In the first case, Askan was sanctioned twice by the court and failed to respond to a court order demanding that he show cause.

On August 11, the U.S. Department of Commerce Office of Inspector General (OIG) published a final report on the audit of the United States Patent and Trademark Office (USPTO) trademark registration process. Since 2015, the USPTO has seen a rapid uptick in potentially fraudulent trademark applications, and a previous audit in 2012 found that more than 50% of audited trademark maintenance filings contained goods/services not in use in commerce. The current audit determined whether inaccurate trademark applications are prevented by the USPTO from being entered and maintained on the trademark register, and further assessed the USPTO’s management of fraud on the register. The report ultimately found that the trademark registration process was ineffective in this respect.

Followers of European trademark developments will be familiar with the Sky v SkyKick litigation, in which the UK courts and the Court of Justice of the EU have addressed questions concerning trademark invalidity (see IPWatchdog report here). In the latest twist, the England and Wales Court of Appeal has reversed one of the main first instance findings. In its judgment, the Court allowed Sky’s appeal against a finding that its asserted trademarks for SKY were partially invalid due to lack of intention to use amounting to bad faith. The Court ruled that it was essential to determine whether the parts of the trademark registrations which were relied on were or were not applied for in good faith.

The Court of Justice of the European Union has provided reassurance to European trademark owners in its judgment today in the SkyKick case. (Case C?371/18 Sky plc, Sky International AG, Sky UK Limited v SkyKick UK Limited, SkyKick Inc.) The case involves questions referred from the UK in a dispute over SkyKick’s alleged infringement of five of Sky’s EU and UK national trademarks. Sky is a well-known broadcaster and telecoms services provider, and SkyKick is a cloud services provider. The Court stated that “a lack of clarity and precision of the terms designating the goods or services covered by a trade mark registration cannot be considered contrary to public policy, within the meaning of those provisions” and that therefore the lack of clarity and precision in a specification is not a ground for invalidity: “a Community trade mark or a national trade mark cannot be declared wholly or partially invalid on the ground that terms used to designate the goods and services in respect of which that trade mark was registered lack clarity and precision.”

The strategy also includes legislative changes to ensure ethical standards among patent and trademark agents and to “remove barriers to innovation, particularly any loopholes that allow those seeking to use IP in bad faith to stall innovation for their own gain.” And just who are these loophole-seeking bad faith actors seeking to bring the innovation economy of Canada to a grinding halt? Well, patent trolls, of course… It’s easy to point to the boogeyman of the patent troll but, in reality, concerns regarding such bad-faith actors tend to be overblown and have had the effect of nearly destroying the U.S. patent system in recent years. That decline has occurred even as the Federal Trade Commission has publicly said that the use of the term “patent troll” is prejudicial.

On December 1st, Niwot, CO-based shoe manufacturer Crocs, Inc. (NASDAQ:CROX) filed a motion for sanctions against Las Vegas, NV-based rival firm USA Dawgs Inc., which outlined a series of harassing legal moves in which Dawgs has engaged in recent years. Crocs is asking the District of Nevada to award Crocs costs and attorneys’ fees incurred by a lawsuit which Crocs alleges that Dawgs has pursued in bad faith.