The TTABlog® almost breathlessly — and, quite understandably, considering — links to Seattle Trademark Lawyer, who reports on a case, One True Vine, LLC v. The Wine Group LLC, just now being uncorked in a California District Court that could well answer a lot of the questions about application of the new “fraud on the PTO” legal standards to an old, familiar fact pattern:
This factual situation looks a lot like the facts in Medinol v. Neuro Vasx: two listed items in the identification of goods, use on only one of the two, a claim of inadvertent mistake. Of course, the Board found fraud in Medinol under the TTAB’s “should have known” standard that was recently rejected by the CAFC in Bose.
What standard will the court apply? How will defendant prove fraud? Is it enough for plaintiff to say that the error was inadvertent? Suppose the two listed goods were wine and nuclear reactors, and the Registrant claimed that the inclusion of “nuclear reactors” was inadvertently overlooked? Suppose plaintiff here had never sold any white wine at all under any label? What if Defendant showed that plaintiff had made the same error in other registrations?
Well, in vino veritas, right?
We’re all looking forward to the answers, which we will no doubt learn… though not before their time.