I want one, too!
What is the FRAUD-O-METER™? Its creator, John Welch, explains:
Some say that a picture is worth a thousand words, and that is certainly true with regard to the TTABlog FRAUD-O-METER™ brand legal indicator. We all know that the CAFC in In re Bose Corporation jettisoned the TTAB’s “knew or should have known” standard for fraud set out in Medinol v. Neuro Vasx, ruling that the Board had “erroneously lowered the fraud standard to a simple negligence standard.” The appellate court also held that proof of intent to deceive is required to establish fraud and it indicated that even “gross negligence” is not enough, but it declined to address the issue of whether “reckless disregard for the truth” would suffice.
The FRAUD-O-METER™ illustrates the current state of trademark fraud jurisprudence: the now defunct Medinol standard is depicted by the grey arrow resting in the “Negligence” wedge, while the white arrow, representing our post-Bose uncertainty, unsurely leans toward the “Reckless Disregard” wedge.
If the chart looks a bit blurry, then I suggest that you (1) move closer to your computer screen; (2) check your eyeglass prescription; or (3) double click on the chart for a larger version that you can print out or save as your computer wallpaper.
Or, kids, you can collect the whole set!
This is very clever. Yet I have the sneaking feeling that John… he is not to laugh from this PTO fraud, so much.
UPDATED: The Beta for version 2.0 is out! John explains:
The Board has yet to decide whether “reckless disregard for the truth” is enough to support a fraud ruling. There are some suggestions (including a recent article by TTAB Judge Lorelei Ritchie [TTABlogged here]) that “willful blindness” may be enough. With that in mind, I have created Version 2.0 of the Fraud-O-Meter, still in beta testing.
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