WELCOME TO THE LAND OF TRADEMARK CANCELLATION––WHERE NOT ALL FRAUD IS CREATED EQUAL

The intellectual property community is buzzing about a recent decision by the U.S. Court of Appeals for the Federal Circuit handing down a ruling on trademark cancellation under the Lanham Act. A divided panel grappled with whether the Agency had authority to cancel a trademark registration as a punishment for filing a false declaration. The majority held that the Agency was precluded from canceling the registration as a remedy for fraud unrelated to the issuance or maintenance of that mark. However, the dissent took aim at the majority’s reasoning, making a compelling argument that green- lighting any type of fraud harms the general public.

Ultimately, the decision upended Agency precedent––of nearly fifty years–– presumably because stare decisis is no shield for ultra vires agency action. As such, this outcome is an important stepping stone in the ever-changing landscape of the reviewability of agency decisions.