be was applying was incorrect and ever since then the board has declined to find fraud in a single base affectively turning one hundred eighty degrees from a per se fraud rule to a rule that required a perfectly fine cases correctly decided on its facts and in the holes within it those are the seeds of what to teach katie should be doing now what it's been reluctant to do which basically says in an appropriate case you review the evidence you make an inference of awful based on what is presented the objective facts and you may make an inference of fraud and both does of doesn't particularly express that but the t been reluctant to do that and perhaps it's an appropriate time to remind the g t a p d that that inference still can be made it can be rebutted on life in the medical error of the cases and the t v did not really presumption may arise and in the case of some facts are shown then the other party has the burden of coming going forward with evidence to rebut the presumption out the old man proof still river lies with the party that's on this issue of intent that has really raised the issue before and in in it seems a sort of if you will in the an older teach here sorry older c c p eight pages of that there was an inference was made based on a false statement and there was really not a whole lot further discussion of what was the process for evaluating that inference that was made and perhaps this case is an opportunity to discuss what would be an appropriate process  and perhaps we you know we take this inference and we take some other evidence we put it all in a bucket and we make a judgement perhaps we're going to have a of shifting presumption type analysis such as we use  in abandonment cases and trademarks where party might say ok we've got three years of nonuse that's a presumption of abandonment and it has to be rebutted by the other party or impacted cases that the latch is presumption that we have six years of non users presumption of latches and then the other party has to come forward with evidence to rebut that that might be an appropriate process to use and that's what the people we propose in this particular case but you're right that it hasn't been done and there is no other circuit have you seen  issues like that where there is a presumption of fraud and i have i have to confess i haven't looked into the if you will criminal side of the case law where you know you have you have evidence of personal intent of some sort and how that like everybody that but that might be an interesting avenue to look into i tried to look into that whole bit of a generally find anything in the same way where you have issues of intent and fraud in you know in the financial transactions or you know where you know we had the other the robo signing of a series of scandals now you know and i don't know what the what the intent process was applied there but no but i you know i think that at some point we read we have this inference of intent that we need to decide how we're going to use it and that's the purpose of being the discussion today even  a legal issue that the truth review is a noble but i but addressing that particular evidence or that they relied on i think you have two different what sort of ways is a legal issue when no fact finding that took place in this particular case it where the if there's no direct evidence of intent there's no testimony of the soul to soul finding is of physics as an inference of no intent that was made by the be based on the fact of section seven amendments to correct the overplaying of goods in the registration and that filing arose patrick but it's an evidentiary conclusion as opposed otherwise determinations made from evidence would be legal determination it's a relevance determination and if you know what's a justifiable inference determination and i i think that's a legal issue but i  and in this particular case i mean we read that the two thousand and seven amendment have a couple different aspects to them it's not a cure just you because you can't cure a fraud ok so already heard but it but it's been argued that this is evidence of the filings in two thousand and seven or evidence that back in two thousand and six that the intent was was innocent that it was not a fraudulent intent at the time and so we're making an inference based on the two thousand and seven filings of what what the intent was back in two thousand and six and i think in this case it's even conceded in unity closings brief that we don't know which it's hard to know what the meaning of the section seven amendment was was it wasn't made in order to cover up a fraud or was it made in order to avoid litigation was a reflection of an innocent intent we don't really know because it took place after the deficiency of it called out by letter from the clarks saying hey your of your trademark for destruction seems to have a defect of overclaiming and and we think there's fraud if if that correction had occurred perhaps before a notice of some of you know th i think that's it's a reasonable correlation to say well that since the two thousand and seven amendment so good and then you place yourself on a continuum of interpretation  of course we're the three judges here and on my sirius i says yes but the votes does not and does not necessarily prevent making it a presumption it doesn't prevent weighing what to what are appropriate presumptions to make in view of the objective evidence and i think that is appropriate subject for a series of cases to elaborate on what is where the lines are what is reasonable or not is reasonable very sparse record as typical of a t v proceedings and it's almost you know it's almost a law school exam and so you know it's hard to just make bad law this is a very simple case and maybe it's an opportunity to make good last he didn't like didn't you ask the ultimate question and you got your request to admit why don't you ask the questions you know did you intend to mislead to the borg well if we had asked asked and so that is you know we would have this interesting appeal if if that had been the case and then that's a and in the same way we chose not to take testimony of unity clothings president  waiting to see if they would come up or come forward with that evidence and so we have a very sparse record and you know if it lends itself to some kind of decision i think  the discovery comes before pose came out wrong what sort of came out why didn't you after reopen discovery for purposes of pursuing that issue a unity closing scene this case provides an opportunity for this court to reaffirm the requirements set forth and then write those that an evidence to support the intent to deceive the p t o element of the claim and instead seeks to rely on the other elements of the fraud claim to be allegedly sufficient to imply that was part of its concern was to do away with the should have known it was concerned that the local the other decisions had lowered the standard to a near negligence standard and the bows were seeking to return the standards of proper intensional towards standard which that essential element is an attempt to harm or in this case and intends to deceive the patent and trademark office with that intention  i think is what what those court was most concerned had been lost right that that's what i'm trying to understand is that it's clear from our case law priebus which poses south says it's bound by that is l that a trademark is obtained fraudulently under the animal act only if the applicant for registering knowingly makes a false material representation with the intent to deceive the p t o the discussion  my even but if they but if it's clear that they knew and they submitted it anyway and here what what we have is an actual admission that i knowingly submitted false information to the   there is an eighth circuit case after post and it is fair isaac court versus experience information solutions inc it's six fifty after eleven thirty nine of two thousand and eleven perception in that decision the jury did find that there is no intent to deceive regarding a requested trademark to refer to three hundred two hundred fifty mark which is reference to  and they just said you can't have it you don't think rejected the explanation and here it is but it appears that the board never rejects the explanation that came here they didn't even give you an explanation at least not one that was admissible and you sort of came up with a first of all as recognized by the blows court a fraud claim whether it be trademark fraud or any other type of fraud is does require a showing of intent and therefore it is an essential element and i think both doesn't say anything about how you sh so who have there's the burden of proof agreeing forbes the evidence and you know what i would say is you know i don't argue that both sets forth exactly what's required to satisfy in order to show that there is evidence of intent to deceive you are claiming that  man and remove some of the items at issue does show an intent to get into correctly a sure there wasn't an intent to deceive that it was as opposed knowledge as is added but there was a misunderstanding or there correct that registration and so that is another point the i'd like to bring out is the fact that this is a fraud claim which does have a heightened standard of review for already a high tide and burden of proof on the presbyterian convincing evidence which again upon to seeking essentially to lower that standard to return it to something that's more along the lines of a negligence standard rather than the intentional sta given the fact that that there is no way that the appellant or counsel could have been aware of phones at the time that this matter with initiated and that at the time their threats to have met were submitted would it make sense for they tell them because december of two thousand and thirteen thirty days so were they serve in november so they had actually been served prior to earlier in the year i believe in april and the parties had to stay on the proceeding the both decision did indeed come out prior to the close of discovery and even prior to the admissions having been deemed to be made and so i do i would suggest that the deposing counsel didn't was we need city i know there's the settlement stay began in april twenty third sorry two thousand and nine and it was stayed until october of two thousand and nine i don't have the exact date us here  ut i believe it reopened in october and that my client at that time had about a month left to respond and to do so the last the last point that i'd like to make is  is the nature of the relief that account the seeking which is that they are speaking to the state not merely amanda the registration to correct it because that's already occurred they are seeking to outright cancel this trademark and even though it's undisputed that the trademark is valid that was properly granted for forty five different items of clothing the dispute is over these several items and i believe as indicated in our papers like he was doing some amendment that really not the thing brought it which is true and that's where it comes back to who bears the burden of proof there because i would say after that it's impossible to tell whether it's more likely than not that we've got three and a half minutes left for  proceedings was filed by unity clothing for a six month period until october one there was still pending requests to admit the motion suspend was filed after the close discovery so there was served its discovery requests that were pending discovery closed and the suspension was granted so leaving sort of when that when they came back in in and out of branding but it's still part of the line will certainly less of now than it was six years ago and they do like to have a trademark registration for all their logos for purposes of registering with the customs to seize counterfeits and all  well separately and outside this record though there was a claim by unity clothing that the use of the un on footwear was an infringement of their trademark rights and us and so we also have an interest cancelling the registration as a defensive step to say well you know if you if you say you're you're over to introduce your trademark or you obtain that functionally and you don't have a trademark registration anymore that you know anything else i think as you pointed out to be subjective intent is difficult and that we do have to rely on instances frequently and both cases we can and the both case explicitly to shoot through fraud and so i think that's all them needs to be done in this case is to rule is to review you know remind ourselves that you know those doesn't rule out the existence of fraud and the board needs to be reminded of that because of a number of their rulings such as information builders dying or chrysler sensually allow an applicant to sign this application under penalty of perjury with no risk of any sort of  damage or you know any sort of loss of their trademark despite making these false statements under oath and this needs to be addressed t