## Facts

- Bose owned a federal registration for the trademark WAVE covering multiple audio products, including “audio tape recorders and players.”
- Bose stopped manufacturing and selling tape recorders and players around 1996–1997, but continued repairing previously sold units and returning them to customers.
- In 2001, Bose filed a combined § 8 affidavit of continued use and § 9 renewal application stating the WAVE mark was “in use in commerce” for all listed goods, including tape recorders and players.
- Bose’s general counsel signed the renewal and testified he believed repair-and-return activity constituted continued “use in commerce.”
- In an opposition/cancellation proceeding, the TTAB found the statement false as to tape recorders and players, concluded the signatory “should have known” repairs were not qualifying “use in commerce,” found fraud on the USPTO, and cancelled the registration in its entirety.
- Bose appealed to the Federal Circuit.

## Issues

1. What standard governs “fraud on the USPTO” for purposes of cancelling a trademark registration under the Lanham Act: must there be intent to deceive, or is “knew or should have known” enough?
2. Whether substantial evidence supported a finding that Bose, through its signatory, intended to deceive the USPTO when it attested to continued use for goods it no longer sold.

## Decision

- The Federal Circuit reversed the TTAB’s cancellation order and remanded.
- The court held the TTAB applied an incorrect legal standard by treating “should have known” as sufficient to prove fraud.
- The court held the record lacked substantial evidence, proven by clear and convincing evidence, that Bose had the subjective intent to deceive the USPTO.

## Legal Principles

- Fraud in procuring or maintaining a trademark registration exists only when the registrant knowingly makes a false, material representation with intent to deceive the USPTO.
- Deceptive intent is an indispensable element; a negligence-like “knew or should have known” standard is legally erroneous.
- Fraud must be proved by clear and convincing evidence, “to the hilt,” with no room for speculation, inference, or surmise; doubts are resolved against the party alleging fraud.
- Intent to deceive may be inferred from circumstantial evidence, but inferences from lesser evidence cannot satisfy the clear-and-convincing requirement.
- An honest misunderstanding or mistaken legal conclusion about “use in commerce,” without willful deception, does not establish fraud.

## Conclusion

The Federal Circuit limited trademark fraud cancellation to cases of willful deception, requiring clear and convincing proof that the registrant knowingly made a material false statement with subjective intent to mislead the USPTO; mere error or “should have known” conduct cannot support cancellation for fraud.


In re Bose Corp., 580 F.3d 1240 (Fed. Cir. 2009)