Posts Tagged: "fraud"

On November 8, a Central California jury entered a verdict awarding $3.9 million in punitive damages against Internet financial platform ConsumerDirect. The verdict comes weeks after U.S. District Judge James Selna granted a motion for sanctions  after finding that ConsumerDirect fraudulently represented its ownership of unregistered trademarks while obtaining a preliminary injunction in U.S. district court against Array.

The U.S. Court of Appeals for the Federal Circuit (CAFC) on Wednesday ruled in a precedential decision  that the U.S. Patent and Trademark Office (USPTO) Trademark Trial and Appeal Board (TTAB) cannot cancel a trademark based on the filing of a fraudulent declaration under Section 15 of the Lanham Act. Section 15 of the Lanham Act deals with acquiring incontestability status for an already-registered trademark. In the present case, the attorney for Great Concepts, LLC submitted a false declaration to the USPTO in an attempt to obtain incontestable status for the mark DANTANNA’S for a steak and seafood restaurant.

The Patent Trial and Appeal Board (PTAB) of the United States Patent and Trademark Office (USPTO) has been a lightning rod since it was established on September 16, 2012. In recent years, it is undeniable that the PTAB has become fairer, although there are still obvious improvements that can and should be made. Unfortunately, the fact that the tribunal has become more even handed and offers more meaningful process and procedural protections to patent owners does not mean that the overall PTAB process is in any way fair to patent owners, as recently evidenced by an astonishing offer to throw a case, including tanking efforts of third parties seeking to join, if the patent owner paid up.

The U.S. Court of Appeals for the Federal Circuit (CAFC) on Friday, November 12, vacated and remanded a decision of the Trademark Trial and Appeal Board (TTAB) that had found Galperti S.r.l (Galperti-Italy) had not committed fraud on the U.S. Patent and Trademark Office (USPTO) in asserting that it had substantially exclusive use of the mark GALPERTI in the five years preceding its registration. The appeal to the CAFC stems from Galperti, Inc.’s (Galperti-USA’s) petition for cancellation based on its own prior use of the same mark, in which the TTAB found that Galperti-USA had demonstrated only insignificant use of the mark and therefore had not proven fraud or falsity on the part of Galperti-Italy. The CAFC cited two legal errors in the TTAB’s analysis that warranted vacatur and remand.

On June 9, the full Senate Judiciary Committee held a hearing titled “COVID-19 Fraud: Law Enforcement’s Response to Those Exploiting the Pandemic.”  The hearing, which was led by Chairman Sen. Lindsey Graham, R-S.C., included testimony by William Hughes, Associate Deputy Attorney General United States Department of Justice, The Honorable Craig Carpenito, United States Attorney District of New Jersey, Calvin Shivers, Assistant Director Criminal Investigative Division Federal Bureau of Investigation, and Michael D’Ambrosio, Assistant Director United States Secret Service Department of Homeland Security. Following an acknowledgment of the tragic death of George Floyd by each of the witnesses, the testimony focused on the response to fraud that has resulted from the COVID-19 pandemic, including the sale of fraudulent personal protective equipment (PPE) and cyber-enabled fraud. In general, Hughes focused primarily on the Department of Justice’s response to criminal conduct relating to the COVID-19 pandemic, Carpenito focused on hoarding and price gouging, Shivers focused on fraud schemes and illicit finance activities that seek to exploit the COVID-19 pandemic, and D’Ambrosio focused on the U.S. Secret Service’s work to counter cyber and financial crimes exploiting the pandemic.

In May 2018, Scott Cooper and his companies, World Patent Marketing Inc. and Desa Industries Inc., agreed to a settlement with the Federal Trade Commission that bans them from the invention promotion business, and ordered payment of $25,987,192. The FTC charged World Patent Marketing with being nothing more than a scam, bilking millions of dollars from inventors. “The record supports a preliminary finding that Defendants devised a fraudulent scheme to use consumer funds to enrich themselves,” concluded United States District Judge Darrin P. Gayles as he issued a preliminary injunction in August 2017. Matthew G. Whitaker, the Acting Attorney General of the United States who ascended to the position with the resignation of Jeff Sessions, served on the advisory board of World Patent Marketing. Worse, Whitaker was involved in some of the egregious intimidation that led to the charges, issuance of an injunction and ultimately the settlement.

According to Eric Perrott, a trademark and copyright attorney with Gerben Law Firm, chatter among U.S. trademark officials and attorneys regarding the increase of potentially fraudulent Chinese applications became more serious about a year ago. At that time, people were noting an increase of applications from specific Chinese provinces including Shenzhen, considered by many to be the Silicon Valley of China. “There’s a clear pattern that you can tell with some of the applications,” Perrott said. “They appear to be marks with arbitrary names or made-up jumbles of words.” Perrott notes that filing for marks that have no translation in a foreign language allows an applicant to file a trademark application on the cheapest basis possible, removing the need to file a $50 translation fee.

In late December, Beyoncé’s trademark holding company lost out on a motion to amend the TTAB’s standard protective order to make certain information confidential under 37 CFR § 2.120(g). This statute allows parties to make a motion when discovery is sought if they can show good cause that a TTAB order is required to protect a party from annoyance, embarrassment, oppression or undue burden. BGK Trademark Holdings sought an order modifying the TTAB’s standard protective order regarding “private information concerning Applicant [BGK Trademark],” specifically “any and all information” related to Beyoncé, daughter Blue Ivy Carter and husband Shawn Carter, aka Jay-Z.

On Thursday, October 19th, the creators of the 1984 rock band mockumentary This Is Spinal Tap filed a second amended complaint against French mass media company Vivendi SA (EPA:VIV) in the Central District of California. The lawsuit, which includes trademark and copyright claims, alleges that Vivendi and its subsidiaries provided fraudulent accounting to the plaintiffs which resulted in greatly reduced royalty payments over the course of decades. The plaintiffs, which include the movie’s director Rob Reiner as well as performers/co-creators Christopher Guest, Harry Shearer and Michael McKean, are seeking more than $400 million in compensatory and punitive damages from Vivendi and Universal Music Group.

In the suit, Nye alleges that Buena Vista Television entered into an agreement in March 1993 to promote, market and distribute the Bill Nye the Science Guy television series. That agreement entitled the owners of the show to 50 percent of the net profits divided four ways, leaving Nye entitled to 16.5 percent of the total net profits earned by the show… Nye first became suspicious as to whether Buena Vista was upholding its end of the agreement in July 2008 after Buena Vista informed Nye they had made a mistake in calculating a participation payment sent to Nye that April; instead of earning $585,000 in net profits, Nye then owed Buena Vista nearly $500,000. Since that July 2008 statement recalculation, Nye alleges that Buena Vista ceased making participation or royalty payments, claiming that Nye first had to repay the $500,000 before receiving future payments. Nye’s suit specifically notes that Disney failed to act in good faith to resolve the dispute when counsel contacted them about the issue.

It appears that Beyoncé’s trademark filing activities raise the question as to whether she, through her trademark holding company, is attempting fraud on the USPTO. “Fraud” is a nasty legal word, but that is the proper term of art to use when there is a question about whether an applicant has been forthcoming and honest with the USPTO. Applicants before the USPTO owe a duty of candor, which if breached by the applicant is because the applicant is said to have committed fraud on the Office… It’s also possible that, if the couple never intended on making the goods and services claimed in the BLUE IVY CARTER application, they have no true intent to offer those same goods and services listed under the RUMI CARTER and SIR CARTER applications.

The Court disagreed that the district court’s sole basis for finding exceptional circumstances was that NOVA filed an action in equity. The Court noted that the district court also relied on the substantive weakness of NOVA’s position, which can independently support an exceptional-case determination. It is the substantive strength of a party’s litigating position that can lead to an exceptional case determination not correctness or success of that position. For instance, NOVA’s allegations of fraud were supported exclusively by conflicting testimony, a fact going to the strength of the action.

The old arguments that patents inhibit innovation, and non-exclusivity with compulsory licensing leads to a brave new world are now in vogue. We’ve stood at this fork in the road before. It requires courage to reject the easy path downward and restore the system which created our prosperity. If we lack the will, we have no one else to blame as we plunge deeper into the mire. That’s the last place anyone wanting to drain the swamp while growing the economy should go.

The patent trolling by MPHJ and owner, Texas lawyer Jay Mac Rust, are well known. But now the SEC is going after Jay Mac Rust in federal court for fraud. The SEC’s complaint maintains that Atlantic had “no ability or intention to obtain these loans.” Rather, of the money the two collected, the SEC alleges that Rust took $662,000 from client funds for personal pay and risky securities investments; Brenner himself took $595,000, and both made investments claiming that the money was personally theirs and not from the client funds. Investigations at a brokerage firm where these trades were taking place led the SEC to discover the fraudulent activities.