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In re Bose Corp.

United States Court of Appeals for the Federal Circuit
580 F.3d 1240 (2009)


Facts

Bose Corporation owned the trademark for “WAVE” in connection with several products, including audiotape recorders and players. Bose renewed the trademark for all goods contained in its initial registration, despite the fact that Bose had stopped selling audiotape recorders and players. Bose did continue to repair and return audiotape recorders and players that were under warranty. Mark Sullivan, who signed the renewal application, stated that he believed the repair and return of the audiotape recorders and players constituted use in commerce sufficient to warrant trademark protection. Hexawave, Inc. (plaintiff) applied for trademark registration of “HEXAWAVE.” Bose filed an opposition. Hexawave counterclaimed that Bose’s mark should be cancelled because it committed fraud on the United States Patent and Trademark Office (PTO) when it stated that the WAVE mark was still in use in commerce for audiotape recorders and players. The Trademark Trial and Appeal Board found that Sullivan should have known that the repair and return of audiotape recorders and players did not constitute a use in commerce. Consequently, the board found that Bose had committed fraud and cancelled Bose’s WAVE mark. Bose appealed.

Rule of Law

Issue

Holding and Reasoning (Michel, J.)

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