Consumer electronics manufacturer Bose did not commit fraud on the Patent and Trademark Office by making misstatements as to its use of the mark WAVE on certain goods in its renewal filings for the mark's registration, the U.S. Court of Appeals for the Federal Circuit has held. In the renewal, filed in 2001, Bose had stated that the WAVE mark was still in use in commerce on all the various goods listed in the original application, including audio tape recorders and players. However, Bose had stopped manufacturing and selling audio tape recorders and players sometime between 1996 and 1997.

Bose's general counsel testified before the TTAB that, in his belief, the WAVE mark was still being used in connection with those goods because Bose continued to repair previously sold tape recorders and players, some of which were still under warranty. The Trademark Trial and Appeal Board determined that Bose's activities did not constitute sufficient use to maintain a trademark registration. Thus, the TTAB decided, the WAVE registration was void ab initio and was canceled in its entirety.

In canceling the WAVE registration, the TTAB erred by failing to determine whether Bose intended to deceive the PTO, the court said. There was a legal distinction between a false representation and a fraudulent one. A false statement must be willful to constitute fraud, according to the court.

Even if Bose's repair of previously sold goods did not constitute use in commerce, Bose would not have engaged in fraud if the misrepresentation of use involved an honest misunderstanding or inadvertence without a willful intent to deceive, according to the court. Without clear and convincing evidence to support an inference of deceptive intent, the TTAB's finding of fraud was in error. Cancellation of the entire WAVE registration was reversed, but the case was remanded with instructions to restrict the registration to reflect the fact that audio tape recorders and players were no longer sold by Bose.

In re Bose Corp., Fed. Cir., ¶61,474.