Case: 22-1212    Document: 55    Page: 1    Filed: 10/18/2023




   United States Court of Appeals
       for the Federal Circuit
                 ______________________

                GREAT CONCEPTS, LLC,
                      Appellant

                            v.

                    CHUTTER, INC.,
                       Appellee

  KATHERINE K. VIDAL, UNDER SECRETARY OF
  COMMERCE FOR INTELLECTUAL PROPERTY
    AND DIRECTOR OF THE UNITED STATES
      PATENT AND TRADEMARK OFFICE,
                  Intervenor
            ______________________

                       2022-1212
                 ______________________

     Appeal from the United States Patent and Trademark
 Office, Trademark Trial and Appeal Board in Nos.
 91223018, 92061951.
                  ______________________

                Decided: October 18, 2023
                 ______________________

     LAUREN ANN DEGNAN, Fish & Richardson P.C., Wash-
 ington, DC, argued for appellant. Also represented by
 JARED HARTZMAN; CYNTHIA WALDEN, Boston, MA.

    BRUCE WILLIAM BABER, King & Spalding LLP, Atlanta,
 GA, argued for appellee. Also represented by KATHLEEN E.
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 2                       GREAT CONCEPTS, LLC v. CHUTTER, INC.




 MCCARTHY, New York, NY.

    MARY BETH WALKER, Office of the Solicitor, United
 States Patent and Trademark Office, Alexandria, VA, ar-
 gued for intervenor. Also represented by CHRISTINA J.
 HIEBER, THOMAS W. KRAUSE, FARHEENA YASMEEN
 RASHEED.
                 ______________________

      Before DYK, REYNA, and STARK, Circuit Judges.
     Opinion for the court filed by Circuit Judge STARK.
     Dissenting Opinion filed by Circuit Judge REYNA.
 STARK, Circuit Judge.
     Great Concepts, LLC (“Great Concepts”) appeals the
 Trademark Trial and Appeal Board’s (“Board”) decision
 cancelling registration of its trademark, “DANTANNA’S,”
 due to the filing of a fraudulent declaration by a former at-
 torney for Great Concepts. The attorney submitted the
 false declaration to the U.S. Patent and Trademark Office
 (“PTO”) in connection with Great Concepts’ effort to obtain
 incontestable status for its registered trademark. Because
 the pertinent part of the applicable statute limits the
 Board’s authority to cancel registration of a mark to cir-
 cumstances in which the “registration was obtained fraud-
 ulently,” and here there is no claim that this occurred, the
 Board was not permitted to cancel Great Concepts’ trade-
 mark. Thus, we reverse and remand.
                               I
    Great Concepts applied to register “DANTANNA’S” as
 a mark for a “steak and seafood restaurant” in 2003. Its
 application issued as 

 (the “’764
 Registration”) in 2005.
     In 2006, Chutter, Inc.’s (“Chutter”) predecessor-in-in-
 terest, Dan Tana, petitioned the Board to cancel the ’764
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 GREAT CONCEPTS, LLC v. CHUTTER, INC.                        3



 Registration, based on an alleged likelihood of confusion
 with Mr. Tana’s common law “DAN TANA” mark for res-
 taurant services. The cancellation proceeding was sus-
 pended during the pendency of a civil action in the
 Northern District of Georgia, in which Mr. Tana sued
 Great Concepts for trademark infringement. On Septem-
 ber 15, 2009, the district court granted summary judgment
 in favor of Great Concepts, a ruling that was affirmed by
 the Eleventh Circuit on July 15, 2010. See Tana v. Dan-
 tanna’s, No. 08-cv-975-TWT, 

 (N.D. Ga.
 2009), aff’d, 

 (11th Cir. 2010). Eventually, on
 December 14, 2010, the Board dismissed Mr. Tana’s can-
 cellation proceeding “based on petitioner’s apparent loss of
 interest,” after he failed to respond to the Board’s order to
 show cause. J.A. 310.
     Meanwhile, on March 8, 2010, Great Concepts’ former
 attorney, Frederick Taylor, filed with the PTO a combined
 declaration of use, pursuant to Section 8 of the Lanham
 Act, and declaration of incontestability, pursuant to Sec-
 tion 15 of the same Act. See 

, 1065. In
 the Section 15 portion of the declaration, relating to Great
 Concepts’ effort to obtain incontestable status for its al-
 ready-registered mark, Mr. Taylor declared, among other
 things, “there is no proceeding involving said rights pend-
 ing and not disposed of either in the U.S. Patent and Trade-
 mark Office or in the courts.” J.A. 51, 87; see also 

(d), (e) (noting requirements for Section 15 declara-
 tion); 

. This statement was false: as of
 March 2010, both the cancellation proceeding in the PTO
 and the Eleventh Circuit appeal from Mr. Tana’s district
 court action were still pending.
     In July 2015, Chutter petitioned the PTO for cancella-
 tion of Great Concepts’ “DANTANNA’S” mark based on Mr.
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 4                       GREAT CONCEPTS, LLC v. CHUTTER, INC.




 Taylor’s 2010 false Section 15 affidavit. 1 On September 30,
 2021, the Board issued a decision finding that Mr. Taylor’s
 Section 15 declaration was fraudulent and cancelling Great
 Concepts’ registration of its trademark under Section 14 of
 the Lanham Act. Great Concepts timely appealed. We
 have jurisdiction pursuant to 

(a)(4)(B) and
 

(a)(1). We apply de novo review to the
 Board’s legal conclusions. See Bose, 580 F.3d at 1243.
                               II
     Resolution of this appeal turns on our interpretation of
 various provisions of the Lanham Act. We reproduce below
 a portion of the Supreme Court’s helpful background on the
 Lanham Act, which notes several trademark concepts that
 are pertinent to our analysis:
         Trademark law has a long history, going back
         at least to Roman times. The principle under-
         lying trademark protection is that distinctive
         marks – words, names, symbols, and the like
         – can help distinguish a particular artisan’s
         goods from those of others. One who first uses
         a distinct mark in commerce thus acquires



     1    We use “declaration” and “affidavit” interchangea-
 bly, as the regulation, see 

, cases, see e.g.,
 In re Bose Corp., 

 (Fed. Cir. 2009), and par-
 ties do. We refer to Mr. Taylor’s affidavit as “false” and
 “fraudulent” because the Board found it was both. See, e.g.,
 J.A. 14, 26. Great Concepts admits the Section 15 affidavit
 was untrue, see Appellant Br. at 33, but denies it was filed
 with fraudulent intent, see, e.g., id. at 34. By using “false”
 and “fraudulent” in this opinion, essentially interchangea-
 bly, we do not mean to suggest we are affirming the Board’s
 intent findings that we do not reach.
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 GREAT CONCEPTS, LLC v. CHUTTER, INC.                        5



       rights to that mark. Those rights include pre-
       venting others from using the mark.
       Though federal law does not create trade-
       marks, Congress has long played a role in pro-
       tecting them. In 1946, Congress enacted the
       Lanham Act, the current federal trademark
       scheme. As relevant here, the Lanham Act
       creates at least two adjudicative mechanisms
       to help protect marks. First, a trademark
       owner can register its mark with the
       PTO. Second, a mark owner can bring a suit
       for infringement in federal court.
       Registration is significant. The Lanham Act
       confers important legal rights and benefits on
       trademark owners who register their
       marks. Registration, for instance, serves as
       constructive notice of the registrant’s claim of
       ownership of the mark. It also is prima facie
       evidence of the validity of the registered mark
       and of the registration of the mark, of the
       owner’s ownership of the mark, and of the
       owner’s exclusive right to use the registered
       mark in commerce on or in connection with
       the goods or services specified in the certifi-
       cate. And once a mark has been registered for
       five years, it can become incontestable.
 B & B Hardware, Inc. v. Hargis Indus., Inc., 

,
 142-43 (2015) (internal citations and quotation marks
 omitted).
      Once obtained, continued registration of a mark re-
 quires compliance with Section 8 of the Lanham Act. Sec-
 tion 8 requires the mark owner, “at the end of the sixth
 year after the date of registration and at the end of each
 successive ten-year period after the date of registration,” to
 “file a Section 8 Declaration of Continued Use, ‘an affidavit
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 6                       GREAT CONCEPTS, LLC v. CHUTTER, INC.




 setting forth those goods or services recited in the registra-
 tion on or in connection with which the mark is in use in
 commerce.’” Bose, 

 n.1 (quoting 

(b)(1)).
     A registered mark may be challenged as invalid on
 grounds including that the mark is confusing, descriptive,
 generic, functional, or abandoned. See 

.
 To make it more difficult for a mark to be invalidated, the
 owner of a registered mark may seek to obtain “incontest-
 able” status for it. Incontestability is governed by Section
 15 of the Lanham Act. Section 15 provides that a regis-
 tered trademark may acquire incontestable status (subject
 to certain conditions not at issue here) after “such regis-
 tered mark has been in continuous use for five consecutive
 years subsequent to the date of such registration and is still
 in use in commerce.” 

.
      An incontestable mark “shall be conclusive evidence of
 the validity of the registered mark.” 

(b)
 (emphasis added). A registered mark that has not achieved
 incontestable status, however, is only “prima facie evidence
 of the validity of the registered mark.” 

 § 1115(a) (em-
 phasis added). Thus, it is more burdensome to prove inva-
 lidity of a registered incontestable mark than it is to do so
 for a mark that is not incontestable.
     Section 14 of the Lanham Act sets out the circum-
 stances under which the registration of a mark may be
 challenged. In pertinent part, it provides:
       A petition to cancel a registration of a mark,
       . . . may . . . be filed as follows by any person
       who believes that he is or will be damaged . . .
       by the registration of a mark on the principal
       register . . .
       (3) At any time if . . . its registration was ob-
       tained fraudulently . . . .
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 GREAT CONCEPTS, LLC v. CHUTTER, INC.                      7



 

 (emphasis added). “Fraud in procuring a
 trademark registration or renewal occurs when an appli-
 cant knowingly makes false, material representations of
 fact in connection with his application.” Bose, 

 (internal quotation marks omitted). 2
                             III
     In this appeal, we must decide whether Section 14 of
 the Lanham Act, 

, permits the Board to
 cancel a trademark’s registration due to the owner’s filing
 of a fraudulent Section 15 declaration for the purpose of
 acquiring incontestability status for its already-registered
 mark. The Board has long believed it has such power, see
 J.A. 14-15; see also Crown Wallcovering Corp. v. Wall Pa-
 per Mfrs. Ltd., 

, 

, at *4
 (T.T.A.B. 1975), and it exercised such purported authority
 here to cancel Great Concepts’ registration. We conclude,
 however, that Section 14 does not permit the Board to can-
 cel a registration in these circumstances.
                              A
     Before turning to the issue of statutory interpretation
 presented in this case, we must address two preliminary
 matters.
     First, we reject Chutter’s and the PTO’s contention
 that Great Concepts failed to preserve its statutory inter-
 pretation argument at the Board. We do not agree that this



    2    While Great Concepts challenges the Board’s find-
 ings that the elements of fraud were proven here, we do not
 reach that portion of its appeal because we agree with
 Great Concepts that, even assuming fraud occurred, Sec-
 tion 14 does not provide authority for the PTO to cancel
 Great Concepts’ registration based on a fraudulent Section
 15 affidavit.
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 8                       GREAT CONCEPTS, LLC v. CHUTTER, INC.




 issue was forfeited. Instead, we find that Great Concepts
 adequately presented its contentions to the Board.
      In its briefing to the Board, Great Concepts explained
 that a Section 15 declaration only relates to a mark’s in-
 contestability, not its registration. See J.A. 1756-60; see
 also J.A. 1757 (Great Concepts arguing to Board that
 “while an allegedly fraudulent section 15 affidavit may af-
 fect a registration’s incontestability status, it does not nec-
 essarily provide grounds for cancellation of the
 registration”). Great Concepts then cited to a treatise,
 which stated that “‘fraud in a Section 15 incontestability
 affidavit or declaration should only serve to eliminate the
 incontestable status of the registration and not result in the
 cancellation of the registration itself.’” J.A. 1757 (quoting 6
 J. Thomas McCarthy, Trademarks and Unfair Competition
 § 31:81 (5th ed. 2019) (“McCarthy”)). Great Concepts’ ar-
 gumentation provided the Board a fair opportunity to ad-
 dress whether Section 14 authorizes it to cancel a
 registration based on a fraudulent Section 15 declaration. 3
     Second, we reject Chutter’s contention, with which the
 dissent agrees, that we should view this case as involving



     3   Even if the issue were forfeited (and it was not), we
 have discretion to resolve an issue not passed on in the tri-
 bunal we are reviewing “[i]f . . . the ground urged is one of
 law, and that issue has been fully vetted by the parties on
 appeal.” Glaxo Grp. Ltd. v. TorPharm, Inc., 

 (Fed. Cir. 1998). That situation is presented here.
 See Appellant Br. at 14-32; Appellee Br. at 23-40; Interve-
 nor Br. at 26-33; Reply Br. at 2-18. We have discretion to
 reach the statutory interpretation issue for the additional
 reason that it presents a question of exceeding importance:
 whether an agency, which is a creature of statute, has been
 acting ultra vires for years.
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 GREAT CONCEPTS, LLC v. CHUTTER, INC.                        9



 a fraudulent Section 8 declaration, and not just a fraudu-
 lent Section 15 declaration. The PTO has not joined Chut-
 ter in making this argument on appeal. 4 Furthermore, the
 Board did not base its cancellation decision on the fact that
 Great Concepts’ Section 15 declaration happened to have


     4 In practice, the PTO appears to treat combined Sec-

 tion 8 and 15 declarations as separate filings, even when
 they are included together in a single document. See gen-
 erally Trademark Manual of Examining Procedure
 (“TMEP”) § 1605.05 (“The filing fee for a combined §8 and
 §15 affidavit or declaration is the sum of the cost of the in-
 dividual filings.”); see also id. §§ 1605, 1605.05 (describing
 separate remedies for curing deficiencies in Section 8 or
 Section 15 portions of combined declaration). The dissent’s
 citation to 

, which provides in pertinent
 part that “[t]he affidavit or declaration filed under section
 15 . . . may also be used as the affidavit or declaration re-
 quired by Section 8, if the affidavit or declaration meets the
 requirements of both Sections 8 and 15,” does not indicate
 that a declaration seeking to meet the requirements of both
 sections is treated by the PTO as a single declaration.
 Likewise, that the PTO finds it convenient to provide infor-
 mation about Section 15 declarations on the same webpage
 as it provides information about Section 8 (as well as Sec-
 tions 9 and 71) declarations, and chose to identify this page
 as “Definitions for maintaining a trademark registration,”
 does not, of course, alter the legal relationship between two
 different sections of the Lanham Act.                      See
 https://www.uspto.gov/trademarks/maintain/forms-file/def
 initions-maintaining-trademark (last visited September
 22,     2023);   see     also    https://www.uspto.gov/trade-
 marks/maintain (“Because the time for filing a Section 8
 declaration coincides with the time for filing a Section 15
 declaration of incontestability for many applicants, a com-
 bined Sections 8 & 15 form exists, above.”) (last visited Sep-
 tember 22, 2023); Dissent at 13-14 n.6.
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 10                      GREAT CONCEPTS, LLC v. CHUTTER, INC.




 been filed in connection with its Section 8 declaration of
 use. See J.A. 26.
      Chutter’s basis for asking us to treat the situation here
 as one involving a false Section 8 affidavit is that Mr. Tay-
 lor filed a combined declaration that addressed the require-
 ments of Section 8 – for continued registration – and
 Section 15 – for the incontestability of the registered mark.
 J.A. 87-88. While we have held that fraud in connection
 with maintaining a registration is actionable in a Section
 14 cancellation proceeding, see Torres v. Cantine Torresella
 S.r.l., 

 (Fed. Cir. 1986) (“Fraud in obtaining
 renewal of a registration amounts to fraud in obtaining a
 registration within the meaning of section 14(c) of the Lan-
 ham Act.”), here there was no such fraud, because there is
 no evidence (or even allegation) that Mr. Taylor’s Section 8
 declaration was false. A Section 15 declaration is in no way
 necessary to maintaining registration of a mark. Here, the
 happenstance that Mr. Taylor filed a combined declaration,
 which had one portion devoted to Section 8 and another to
 Section 15, does not render the Section 8 portion false or
 fraudulent, and neither does it make the Section 15 portion
 part of an effort to “maintain” a registration.
     Thus, as the case comes to us, the issue is only whether
 a fraudulent Section 15 affidavit, filed in pursuit of incon-
 testable status of an already-registered mark, is a proper
 basis on which to predicate a Section 14 cancellation of a
 registration. 5 We turn squarely to that question now.



      5  Even Chutter does not contend that this case in-
 volves any allegation that Great Concepts obtained its orig-
 inal registration fraudulently. Nor could it, as Chutter is
 collaterally estopped from making such an allegation,
 given its earlier failures to prove such fraud. See J.A. 299
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 GREAT CONCEPTS, LLC v. CHUTTER, INC.                         11



                                B
     We conclude that Section 14, which allows a third party
 to seek cancellation of registration when the “registration
 was obtained fraudulently,” does not authorize cancella-
 tion of a registration when the incontestability status of
 that mark is “obtained fraudulently.”
      “As in any case of statutory construction, our analysis
 begins with the language of the statute.” Hughes Aircraft
 Co. v. Jacobson, 

 (1999) (internal quota-
 tion marks omitted). “[W]here the statutory language pro-
 vides a clear answer, it ends there as well.” 

 Moreover,
 “we must read the words in their context and with a view
 to their place in the overall statutory scheme.” King v. Bur-
 well, 

 (2015) (internal quotation marks
 omitted). In sum, “we employ traditional tools of statutory
 construction and examine the statute’s text, structure, and
 legislative history, and apply the relevant canons of inter-
 pretation.” Atilano v. McDonough, 

 (Fed. Cir. 2021) (internal quotation marks omitted). Un-
 dertaking this analysis, we conclude that Section 14 does
 not authorize the Board to cancel a registration based on a
 fraudulent Section 15 declaration.
      As we have already noted, Section 14 permits a third
 party to file “[a] petition to cancel a registration of a mark”
 “[a]t any time if” the registered mark’s “registration was
 obtained fraudulently.”         

 (emphasis
 added). “Obtaining” has a plain and ordinary meaning,
 “‘[t]o get hold of by effort; to gain possession of; to procure;



 (Board concluding that Chutter’s predecessor, Mr. Tana,
 “failed to identify clearly any specific false, material mis-
 representations of fact that [Great Concepts] made . . . with
 the intent of obtaining a registration to which [it] was not
 entitled”).
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 12                     GREAT CONCEPTS, LLC v. CHUTTER, INC.




 to acquire, in any ways.’” W. Union Tel. Co. v. Hansen &
 Rowland Corp., 

 (9th Cir. 1948) (quot-
 ing Webster’s New International Dictionary, 2d ed. at
 1682); see also Obtain, Black’s Law Dictionary (11th ed.
 2019) (“To bring into one’s own possession; to procure, esp.
 through effort”). The parties do not appear to dispute that
 Great Concepts obtained something through Mr. Taylor’s
 Section 15 declaration.
     The question becomes what Great Concepts obtained,
 but this is not difficult to answer. What Great Concepts
 acquired through Mr. Taylor’s fraudulent Section 15 decla-
 ration was incontestable status for its already-registered
 trademark. Under the Lanham Act, registration and in-
 contestability are different rights. See Duffy-Mott Co.
 v. Cumberland Packing Co., 

 (CCPA 1970) (acquiring incontestable status under Section
 15 is “a matter of acquiring a new right,” distinct from
 “maintaining the registration in force” under Section 8).
 Indeed, registration is a prerequisite to incontestability.
 Rendering an already-registered mark harder to invali-
 date, which is the impact of incontestable status, is not the
 same thing – or even nearly the same thing – as getting,
 acquiring, or securing registration of the mark in the first
 place. Hence, fraud committed in connection with obtain-
 ing incontestable status is distinctly not fraud committed
 in connection with obtaining the registration itself. See
 generally McCarthy § 31:81 (“[I]ncontestable status does
 not ‘obtain’ the ‘registration.’ The registration already ex-
 isted with ‘contestable’ status.”).
      Mr. Taylor’s Section 15 declaration in no way caused or
 even contributed to Great Concepts obtaining registration
 for its mark. Nor could it have, for Great Concepts ob-
 tained its registration back in 2005 and Mr. Taylor did not
 file his declaration until 2010. Given that registration and
 incontestability are different rights, and Section 14 only
 identifies fraud in connection with acquiring one of these
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 GREAT CONCEPTS, LLC v. CHUTTER, INC.                       13



 rights (registration) as being a basis for a cancellation pro-
 ceeding at the Board, it follows that fraud in connection
 with acquiring incontestable status is not a basis for a Sec-
 tion 14 cancellation proceeding.
     Section 14 lists numerous bases on which a third party
 may seek Board cancellation of a registered mark, includ-
 ing likelihood of confusion, abandonment, dilution, decep-
 tiveness, and if the mark is merely descriptive or has
 become generic or functional. See 

. Nota-
 bly absent from this list is fraud committed in connection
 with an incontestability declaration. When, as here, Con-
 gress sets out a lengthy list of statutory provisions, we will
 not lightly add to that list, lest we contradict what may well
 have been an intentional omission. See, e.g., Schlafly
 v. Saint Louis Brewery, LLC, 

 (Fed. Cir.
 2018) (“The statutory interpretative canon of expressio
 unius est exclusio alterius, provides that ‘expressing one
 item of [an] associated group or series excludes another left
 unmentioned.’”) (quoting NLRB v. Sw. Gen., Inc., 

 (2017)).
      Section 33(b) of the Lanham Act further confirms that
 a Section 14 cancellation proceeding is not available as a
 remedy for a fraudulent Section 15 incontestability decla-
 ration. Section 33(b) provides that an accused infringer
 may attempt to prove in an infringement action that “the
 incontestable right to use the mark [being asserted against
 the infringer] was obtained fraudulently” by the mark
 owner. 

(b)(1). Importantly, the remedy
 Congress provided for litigants in Section 33(b) – for the
 specific circumstances presented here, i.e., fraud in connec-
 tion with obtaining incontestable status – was loss of in-
 contestable status, and not also loss of registration. See
 Park ’N Fly, Inc. v. Dollar Park & Fly, Inc., 

,
 199 n.6 (1985) (stating that “defenses enumerated in
 § 33(b) are not substantive rules of law which go to the va-
 lidity or enforceability of an incontestable mark” but rather
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 14                      GREAT CONCEPTS, LLC v. CHUTTER, INC.




 impact only “the evidentiary status of registration where
 the owner claims the benefit of a mark’s incontestable sta-
 tus”). Given that Congress, in Section 33(b), expressly con-
 templated our very circumstances – an incontestable
 registered mark, where incontestable status was obtained
 by fraud – and provided that the remedy for it was loss of
 incontestable status, we are unpersuaded that Congress
 also, in Section 14, silently authorized the PTO to impose
 a different, more severe remedy, cancellation of registra-
 tion, for this same offense. See generally Jama v. Immigr.
 & Customs Enf’t, 

 (2005) (“We do not
 lightly assume that Congress has omitted from its adopted
 text requirements that it nonetheless intends to apply, and
 our reluctance is even greater when Congress has shown
 elsewhere in the same statute that it knows how to make
 such a requirement manifest.”). It follows that Congress
 did not provide the Board authority to cancel registration
 when a mark owner commits fraud in connection with seek-
 ing to obtain incontestability status.
                                C
     In pressing us to reach a different conclusion, Chutter
 presents several arguments. While they are not unreason-
 able, neither are they persuasive.
     First, like the dissent and the Director, Chutter argues
 that we should adhere to the Board’s longstanding prece-
 dent, as announced in the Board’s 1975 opinion in Crown
 Wallcovering, holding that a fraudulent declaration filed in
 support of incontestability status can be the basis for Board
 cancellation of a registered mark. Board decisions do not,
 of course, bind this court. See, e.g., In re Rudy, 

, 1383 (Fed. Cir. 2020).
      In Crown Wallcovering, the Board held:
        [I]t is clear that the filing of a fraudulent Sec-
        tion 15 affidavit would enable a registrant to
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 GREAT CONCEPTS, LLC v. CHUTTER, INC.                       15



         obtain a new right, namely, incontestability,
         to which he would not otherwise be entitled
         . . . . Under such circumstances, it is ad-
         judged that the filing of a fraudulent Section
         15 affidavit constitutes a ground for cancela-
         tion of the involved registration within the
         purview of Section 14(c).
 

, at *4. 6 The Board felt that the decision of
 our predecessor, the Court of Customs and Patent Appeals
 (“CCPA”), in Duffy-Mott – a case in which a new applicant
 for a registered mark was opposed by a mark owner who
 already had obtained an incontestable mark – “buttressed”
 its conclusion. 

      We disagree. Duffy-Mott involved a mark owner,
 whose predecessor-in-interest had acquired an incontesta-
 ble mark by filing a combined Section 8 and Section 15 af-
 fidavit, in which the Section 15 portion contained a false
 statement, and the Section 8 portion did not – precisely the
 situation we confront here. See 

. That
 mark owner then opposed an applicant’s attempt to regis-
 ter its own similar mark. See 

. The applicant in
 Duffy-Mott did not ask the Board to cancel the mark
 owner’s registered mark due to the fraudulent Section 15
 affidavit, believing the Board had no authority to do so, just
 as we hold today. See 

. And, importantly, the
 CCPA expressly declined to reach the question of whether
 Section 14 permitted cancellation based on fraudulent
 statements in a Section 15 declaration. See 

 at 1099 n.8.



     6   Congress amended Section 14 of the Lanham Act
 in 1988, replacing the lettered subsections with the current
 numbered subsections. See 

, amended by
 

, 

 (Nov. 10,
 1988). Section 14(c) thereby became Section 14(3).
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 16                     GREAT CONCEPTS, LLC v. CHUTTER, INC.




     The sanction the applicant sought in Duffy-Mott, which
 is the sanction the CCPA imposed, was to preclude the
 mark owner from relying on its incontestable, registered
 mark as a basis to oppose applicant’s application for its own
 mark. See 

. 7 Consequently, the mark
 owner in Duffy-Mott came away from the proceeding still
 in possession of a registered mark – which could be as-
 serted against infringers in subsequent actions – just as
 Great Concepts seeks to do here, and just as we hold Great
 Concepts may do. Therefore, we do not view Duffy-Mott –
 a case in which our predecessor court declined to reach the



      7   Chutter and the Director argue that the sanction
 imposed in Duffy-Mott effectively cancelled the mark
 owner’s registration because the mark owner was pre-
 cluded from relying on its registration “for any purpose in
 the Patent Office or in this court [i.e., the CCPA] on appeal
 therefrom.” 

 (emphasis added); see also
 Stardust, Inc. v. Birdsboro Knitting Mills, Inc., 

, 

, at *1 n.5 (T.T.A.B. 1958)
 (holding that owner of incontestable registered mark,
 who made false statement about continued use of its
 mark, may not “rely on this registration for any purpose
 in the Patent Office”) (cited in Duffy-Mott, 

). But the very next sentence of the opinion states that
 “filing a sworn statement as far from the truth as was that
 which was filed precludes opposer from relying on the reg-
 istration in these proceedings.” Duffy-Mott, 

 (emphasis added). We understand the sanction im-
 posed on the mark owner in Duffy-Mott to have been lim-
 ited to precluding the mark owner’s reliance on its
 registration in the very proceeding under review and not
 also to have cancelled that registration for all purposes. In
 other words, the CCPA only granted the narrower relief the
 applicant actually sought in the case.
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 GREAT CONCEPTS, LLC v. CHUTTER, INC.                        17



 question posed to us here, and in which no party thought
 the Board could do what it did here – as particularly sup-
 portive of the Board’s decision in Crown Wallcovering or of
 the decision we are reviewing today. 8
     Relatedly, the dissent states that we have already en-
 dorsed the holding of Crown Wallcovering, and further sug-
 gests that our decision today is a break with stare decisis.
 See Dissent at 10, 15. We disagree. Neither of our prece-
 dents on which the dissent relies, Torres, 

,
 and Bose, 

, involved a Section 15
 declaration or even mentions Section 15. As Great Con-
 cepts observes, see Appellant Br. at 10, the question we are
 now deciding – whether a false or fraudulent Section 15
 declaration can itself be a sufficient basis on which the
 Board may, pursuant to Section 14, cancel a registration –
 has not been previously decided by our court. Accordingly,
 there is no binding precedent and we are not failing to let
 one of our earlier decisions stand.
     Second, Chutter points to a decision of one of our sister
 circuits as support for its position. In Robi v. Five Platters,
 Inc., 

 (9th Cir. 1990) (internal citations


     8   In fact, in the course of not deciding the issue we
 are required to resolve today, Duffy-Mott “consider[ed]
 the purpose for which the false affidavit was filed in order
 to determine the importance of the untrue allegations.”
 

. It went on immediately thereafter to
 distinguish between fraud in a Section 15 affidavit filed
 in connection with obtaining incontestability and fraud in
 connection with “maintaining the registration in force,
 which can be done by an affidavit under section 8(a).” 

 If anything, these statements in Duffy-Mott support our
 view that Section 15 fraud is not a basis for cancellation
 of a registration.
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 18                      GREAT CONCEPTS, LLC v. CHUTTER, INC.




 omitted), the Ninth Circuit stated: “Any false statements
 made in an incontestability affidavit may jeopardize not
 only the incontestability claim, but also the underlying reg-
 istration. In particular, filing a fraudulent incontestability
 affidavit provides a basis for canceling the registration it-
 self.” Robi cites to Duffy-Mott and Crown Wallcovering as
 the bases for its conclusions. See 

 As we disagree with
 the Board’s reading of Duffy-Mott and disagree that Duffy-
 Mott supports the Board’s holding in Crown Wallcovering,
 we are likewise unpersuaded by Robi. 9
     Next, Chutter suggests that if we disagree with its stat-
 utory interpretation, we should simply approve “an extra-
 statutory basis for cancellation.” Appellee Br. at 33. In
 support of its invitation for this act of judicial procreation,
 Chutter cites a law review article. See 

 (citing Theodore
 H. Davis Jr. & Lauren Brenner, Allegations of Fraudulent
 Procurement and Maintenance of Federal Registrations
 Since In re Bose Corp., 

, 998-99
 (2015)). 10 We believe, instead, we are obligated to enforce



      9  We agree, instead, with the conclusion reached by
 the district court in O’Reilly Auto. Stores, Inc. v. Bearing
 Techs. Ltd., No. 16-3102-CV-S-BP, 

, at *5
 (W.D. Mo. 2018) (holding Section 14 “does not state that a
 registration can be canceled because of a fraudulent Sec-
 tion 15 filing”).

      10 Both parties identified secondary sources support-
 ing their interpretation of the statute. Compare Appellee
 Br. at 32 (citing 3 Jerome Gilson & Anne Gilson Lalonde,
 Trademarks § 9.03 (2022)) (“A fraudulent Section 15 affi-
 davit is grounds for cancellation of the registration under
 Section 14(3).”), with Appellant Br. at 26 (citing McCarthy
 § 31.81) (“[F]raud in a Section 15 incontestability affidavit
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 GREAT CONCEPTS, LLC v. CHUTTER, INC.                       19



 the limitations on the Board’s cancellation authority im-
 posed by statute.
      Finally, Chutter makes arguments based on policy. It
 contends our holding will encourage fraud. The dissent
 likewise fears that we have “construct[ed] a milepost in the
 trademark administrative continuum, at which point (Sec-
 tion 15) fraudulent wrongdoing is green-lighted.” Dissent
 at 12. Together, Chutter and the dissent contend that if
 the only consequence for filing a fraudulent affidavit in
 pursuit of incontestability is the loss of incontestability,
 there is no consequence, since the mark owner was not en-
 titled to incontestable status in the first place.
     We certainly do not intend by our holding today to en-
 courage fraud – of any type. We fully agree with the CCPA
 that intentionally using a false statement to acquire an im-
 portant right, including the right of incontestable status,
 “can scarcely be characterized as mere carelessness or mis-
 understanding,” so we further agree that some significant
 sanction is “necessary to deter the further development of
 such a cavalier attitude toward statements in affidavits un-
 der section 15.” Duffy-Mott, 

.
     We do not, however, think our opinion means that com-
 mitting fraud in connection with obtaining incontestability
 becomes a costless offense. As suggested in Duffy-Mott
 (and not contested by Great Concepts), the Board can re-
 move the mark’s incontestability status. See 424 F.3d at
 1099-1100; see also Park ’N Fly, 

 n.6; 

(b)(1); 3 McCarthy § 31:81. Loss of incontest-
 able status is not nothing; it means that, if challenged, a




 or declaration should serve only to eliminate the incontest-
 able status of the registration and not result in cancellation
 of the registration itself.”).
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 20                      GREAT CONCEPTS, LLC v. CHUTTER, INC.




 mark owner will have a harder time preserving the validity
 of its registered mark.
      More importantly, nothing in this opinion should be
 read to mean that the Board is powerless to address fraud,
 including fraud committed solely in conjunction with the
 filing of a Section 15 declaration. While this case does not
 call upon us to delineate the scope of remedies available to
 the Board, or even to identify “the maximum penalty for
 fraud committed to obtain incontestability,” Dissent at 16,
 we are in full agreement with the parties that, at mini-
 mum, the Board may sanction any attorney who commits
 fraud before it. 11 A Section 15 declaration is filed under
 penalty of perjury, see J.A. 87 (“The undersigned being
 hereby warned that willful false statements and the like
 are punishable by fine or imprisonment, or both, under 

.”), so the attorney filing such an affi-
 davit is vulnerable to penalties that might even include
 criminal prosecution. Our ruling that a Section 14 cancel-
 lation of registration is not an available remedy for a fraud-
 ulent Section 15 declaration – a conclusion we reach
 because Congress chose not to empower the Board with the
 ability to impose that specific consequence – is a ruling only
 that this one remedy is unavailable, leaving the Board, we




      11 For example, Great Concepts urged that “when an
 investigation uncovers attorney misconduct,” the attorney
 should be referred the PTO’s Office of Enrollment and Dis-
 cipline. See Appellant Br. at 30 n.12 (citing Hirshfeld &
 Gooder, USPTO’s Comprehensive Strategy to Fight Trade-
 mark Fraud, Director’s Blog: the latest from UPSTO lead-
 ership             (Aug.             18,            2021),
 https://www.uspto.gov/blog/director/entry/uspto-s-compre-
 hensive-strategy-to).
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 GREAT CONCEPTS, LLC v. CHUTTER, INC.                       21



 expect, with sufficient mechanisms to adequately deter
 fraud.
     Even if it were true that our decision would result in
 an unwelcome increase in fraud perpetrated against the
 Board – which, again, we do not believe it will – we would
 nonetheless adhere to the unambiguous language of the
 statute. See, e.g., W. Union Tel. Co. v. Lenroot, 

 (1945) (“[W]e take the Act as Congress gave it to
 us, without attempting to confirm it to any notions of what
 Congress would have done if the circumstances of this case
 had been put before it.”). Whether we would prefer a dif-
 ferent result be reflected in the statute is irrelevant to our
 responsibility to decide the case before us based on the law
 as it exists.
                              IV
     We have considered Chutter’s remaining arguments –
 including its analogy to patent law, see Appellee Br. at 60,
 which is governed by a different statute 12 – and find them
 unpersuasive. Because Section 14 does not authorize the
 Board to cancel a registration based on a fraudulent Sec-
 tion 15 declaration, which is necessarily directed only to
 obtaining incontestable status of an already-registered
 mark and does not involve a “registration [that] was ob-
 tained fraudulently,” we do not reach the issue of whether
 the Board erred in finding that Mr. Taylor committed
 fraud. Based on the statute, we reverse the Board’s cancel-
 lation of Great Concepts’ registration. We remand, how-
 ever, so that the Board may consider whether to declare
 that Great Concepts’ mark does not enjoy incontestable
 status and to evaluate whether to impose other sanctions
 on Great Concepts or its attorney.



     12 Great Concepts, too, makes comparisons to patent

 law. See, e.g., Appellant Br. at 35-38.
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 22                     GREAT CONCEPTS, LLC v. CHUTTER, INC.




                REVERSED AND REMANDED
                           COSTS
 Costs awarded to appellant.
Case: 22-1212   Document: 55      Page: 23   Filed: 10/18/2023




    United States Court of Appeals
        for the Federal Circuit
                  ______________________

                GREAT CONCEPTS, LLC,
                      Appellant

                             v.

                     CHUTTER, INC.,
                        Appellee

   KATHERINE K. VIDAL, UNDER SECRETARY OF
   COMMERCE FOR INTELLECTUAL PROPERTY
     AND DIRECTOR OF THE UNITED STATES
       PATENT AND TRADEMARK OFFICE,
                   Intervenor
             ______________________

                        2022-1212
                  ______________________

     Appeal from the United States Patent and Trademark
 Office, Trademark Trial and Appeal Board in Nos.
 91223018, 92061951.
                  ______________________

 REYNA, Circuit Judge, dissenting.
     Today, the majority instructs the Patent and Trade-
 mark Office that it is without authority to cancel a trade-
 mark registration in situations where a registrant
 defrauds the agency with false declarations intended to de-
 ceive the agency into granting incontestable rights for its
 continued use of a mark. It instructs the agency, and the
 general public, that there exists a milepost in the
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 2                       GREAT CONCEPTS, LLC v. CHUTTER, INC.




 trademark administrative continuum, a green-light, be-
 yond which inequitable conduct is encouraged by the prom-
 ise of great gain with little to no meaningful risk to the
 registrant. But there is harm. First, this court should be
 wary not to excuse fraud that is undertaken at any stage
 within an administrative process. Second, this court must
 recognize that the grant and protection of intellectual prop-
 erty rights involves a pact with the general public. This
 case represents a violation of that pact.
     I respectfully dissent.
                I. CANCELLATION BASED ON FRAUD
     Great Concepts, LLC (“Great Concepts”) submitted a
 single declaration through counsel, who declared under
 penalty of perjury that there were no adverse judgments or
 any pending proceedings involving Great Concepts’ regis-
 tered mark. The declaration was false. The false declara-
 tion enabled Great Concepts to maintain its registration
 and to obtain valuable incontestability rights for its mark.
 Upon discovery of the falsehood, Great Concepts took no
 remedial action to correct it, and failed to inform the Trade-
 mark Trial and Appeal Board (the “Board”) even after the
 false declaration was challenged. The Board determined
 that the circumstances supported a finding of fraud. Based
 on its longstanding interpretation of the Lanham Act as al-
 lowing cancellation of a trademark registration based on
 fraud, the Board cancelled Great Concepts’ trademark reg-
 istration. I would affirm the Board’s action because it ac-
 cords with precedent, fits with statutory objectives,
 safeguards the integrity of the trademark system, and pro-
 tects public interest.
     The Lanham Act creates a federal registration system
 to enforce and protect trademark rights. See B & B Hard-
 ware, Inc. v. Hargis Indus., Inc., 

, 142 (2015).
 The system is administered by the United States Patent
 and Trademark Office (the “PTO”). See id. The statute es-
 tablishes a process by which a trademark owner applies to
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 GREAT CONCEPTS, LLC v. CHUTTER, INC.                         3



 have its mark registered with the PTO. Among other
 things, registration secures ownership of and exclusive
 rights to use the underlying mark in commerce. See id. at
 142–43 (discussing rights and benefits a registrant can ob-
 tain under the Lanham Act).
     Section 8 of the Lanham Act provides a process that
 grants a registrant continued rights to the registered mark.
 To obtain such rights, the registrant must submit a sworn
 declaration to affirm that its mark has been in continued
 use. See 

 (requirements for affirming con-
 tinued use); see also In re Bose Corp., 

, 1242
 n.1 (Fed. Cir. 2009) (explaining requirements for renewing
 a registration and affirming continued use). This declara-
 tion is a mandatory filing to keep the registration alive and
 avoid its cancellation. See 

(a) (the regis-
 tration “shall be canceled” if the registrant fails to file the
 Section 8 declaration). A Section 8 declaration is therefore
 a critical part of the registration process.
      In addition to the Section 8 filing, the registrant may
 also file a Section 15 declaration. 

 § 1065 (requirements
 for “[i]ncontestability of right to use” a mark). Section 15
 provides that a registrant can secure “incontestable” rights
 to use its mark by declaring that the mark has not been
 subject to any adverse decisions, and that at the time of
 filing, the mark was not involved in any pending proceed-
 ings. Id. Incontestability is prized because it constitutes
 “conclusive evidence” of not only the validity and owner-
 ship of a mark, but also the registrant’s exclusive rights to
 use the mark. Id. § 1115(b). In this manner, the regis-
 trant’s exclusive and continued rights to the mark become
 incontestable for the life of the mark. An incontestable reg-
 istration discourages decisions to challenge the registrant’s
 ownership of and rights to use the mark. See Park ’N Fly,
 Inc. v. Dollar Park & Fly, Inc., 

 (1985)
 (explaining the value of incontestability, stating that in-
 contestability “provide[s] a means for the registrant to
 quiet title in the ownership of his mark”).
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 4                      GREAT CONCEPTS, LLC v. CHUTTER, INC.




     A registrant may elect to file a combined declaration of
 continued use and incontestability, if the requirements un-
 der both Sections 8 and 15 are met. Trademark Manual of
 Examining Procedure § 1605.05 (5th ed. 2007); see also 

(a). 1 Through this single combined filing, a
 registrant keeps its registration alive and attains incon-
 testability status for its mark.
                     A. Finding of Fraud
     Great Concepts, through counsel, filed a combined dec-
 laration for its mark, “DANTANNA’s.” The one-page sub-
 mission states that “Great Concepts . . . is filing a
 Combined Declaration of Use and Incontestability under
 Sections 8 & 15.” J.A. 87. For incontestability, Great Con-
 cepts declared that no pending proceeding involving the
 mark existed at the PTO or in a court. 

 The declaration
 warns that: “[W]illful false statements and the like are
 punishable by fine or imprisonment, or both, under 

, and that such willful false statements
 and the like may jeopardize the validity of this document.”




     1   For clarity, and relevant here, this combined decla-
 ration requires Great Concepts to declare,
     The mark has been in continuous use in commerce
     for five (5) consecutive years after the date of reg-
     istration, or the date of publication under Section
     12(c), and is still in use in commerce. There has
     been no final decision adverse to the owner’s claim
     of ownership of such mark, or to the owner’s right
     to register the same or to keep the same on the reg-
     ister; and there is no proceeding involving said
     rights pending and not disposed of either in the
     U.S. Patent and Trademark Office or in the courts.
 J.A. 87; see also 

, 1065.
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 GREAT CONCEPTS, LLC v. CHUTTER, INC.                       5



 

 The document was signed by counsel for Great Con-
 cepts. J.A. 87–88.
      It is undisputed that, on the date of the signing and
 filing and contrary to the sworn declaration, Great Con-
 cepts’ mark was involved in a cancellation proceeding at
 the PTO and in a trademark infringement civil action. See
 Tana v. Dantanna’s, 

, 772–73 (11th Cir. 2010);
 see also Chutter, Inc. v. Great Management Group, LLC,
 No. 91223018, 

, at *7–8 (T.T.A.B. Sept.
 30, 2021) (“Decision”). In addition, the counsel for Great
 Concepts that signed the declaration was also counsel to
 Great Concepts in the cancellation proceeding and the civil
 action. See Decision, 

, at *8; see also J.A.
 612–13 (counsel testimony regarding his representation of
 Great Concepts). The Board determined that Great Con-
 cepts submitted false representations with intent to de-
 ceive, and thereby committed fraud. 2 Decision, 

, at *13.
      In reaching its finding of fraud, the Board considered
 that the same counsel represented Great Concepts in the
 other then-pending proceedings when he attested to the ab-
 sence of those very proceedings, see 

 at *8 & n.47; that
 he admittedly “was not aware of the legal requirements for
 filing a Section 15 declaration” when he directed a parale-
 gal to file Great Concepts’ combined declaration, 

 at *8–
 9; and that before signing the sworn-declaration, he failed



     2   The majority opinion concedes the falsity of Great
 Concepts’ declaration and appears to recognize its inequi-
 table nature. See Maj. Op. 3, 20–21. The majority, how-
 ever, does not reach the issue of whether Great Concepts
 committed fraud, deciding instead to reverse on the basis
 of no harm no foul, concluding that the registrant should
 be restored to the status quo prior to the filing. See 

.
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 6                       GREAT CONCEPTS, LLC v. CHUTTER, INC.




 to read it with enough care to notice that the falsity was
 repeated twice on the same page, 

      The Board also found that Great Concepts failed to cor-
 rect the false information it submitted. 

. After
 filing the declaration, Great Concepts’ counsel received:
 (1) a PTO notice confirming receipt of the document, which
 includes a recitation of the false declaration; and (2) a par-
 alegal email attaching the PTO confirmation.               Id.;
 J.A. 816–20. Great Concepts did not notify the PTO of the
 falsehood nor otherwise take any corrective action. Deci-
 sion, 

, at *8 (noting that Great Concepts
 became aware of the falsehood at least as early as February
 2014). Counsel failed to undertake any corrective action,
 and he continued to represent Great Concepts. 

 The
 PTO approved the submission, and Great Concepts’ regis-
 tration continued, now cloaked with incontestability. 3 Id.;
 see also J.A. 94 (PTO acceptance and acknowledgement).
 The deception did not end at the PTO, as from that mo-
 ment, the public was falsely informed that the mark was
 legally incontestable.
      Fraud requires a finding of intent to deceive. Bose, 

. “[B]ecause direct evidence of deceptive intent
 is rarely available, such intent can be inferred from indi-
 rect and circumstantial evidence.” 

 (quoting Star Scien-
 tific, Inc. v. R.J. Reynolds Tobacco Co., 

 (Fed. Cir. 2008)). Great Concepts does not dispute these
 legal principles. See, e.g., Appellant’s Br. 13 (noting the
 intent requirement for fraud); id. at 33 (noting that a de-
 ceptive intent can be inferred). Great Concepts also


     3   In practice, the PTO’s “approval” is pro forma and
 does not involve verification or formal review of this sworn
 declaration. See Decision, 

, at *7 & n.44.
 As a result, unless by chance the false information is oth-
 erwise detected, the false declaration can for years effec-
 tively deflect potential challenges to the registration.
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 GREAT CONCEPTS, LLC v. CHUTTER, INC.                       7



 concedes that an intent to deceive can be inferred from cir-
 cumstances demonstrating reckless disregard. See Oral
 Arg. 6:53–7:18; 

 at 7:00–11 (“[O]ne can prove intent to
 deceive or malice based on reckless disregard for the
 truth.”).
      The circumstances surrounding Great Concepts’ sub-
 mission exhibit a “cavalier attitude” indicative of an intent
 to deceive the agency. See Duffy-Mott Co. v. Cumberland
 Packing Co., 

 (C.C.P.A. 1970); see also
 Decision, 

, at *9 (discussing various as-
 pects of recklessness). They constitute sufficient evidence
 that “a reasonable mind might accept as adequate” to sup-
 port the Board’s finding of reckless disregard and inference
 of intent to deceive. On-Line Careline, Inc. v. Am. Online,
 Inc., 

 (Fed. Cir. 2000) (quoting In re
 Gartside, 

 (Fed. Cir. 2000)).
      Great Concepts attempts to analogize the facts here to
 those in Bose and Kingsdown, where we found no intent to
 deceive. See, e.g., Appellant’s Br. 35–37 (relying on Bose,
 

 and Kingsdown Med. Consultants, Ltd. v.
 Hollister Inc., 

 (Fed. Cir. 1988)); Reply Br. 19–
 21 (same). Both cases, however, are readily distinguisha-
 ble. In Bose, the “false misrepresentation [was] occasioned
 by an honest misunderstanding.” 

. Here,
 by contrast, Great Concepts’ counsel admittedly knew that
 “the statement was [not] true at the time he signed [it].”
 Id.; see J.A. 667 (“I clearly knew that there was a pending
 action”). And in Kingsdown, the patent prosecution coun-
 sel, in “a ministerial act,” negligently transferred “numer-
 ous claims en masse from a parent to a continuing
 application,” which required renumbering and reproducing
 similar claim language. 

. This case does
 not involve a misunderstanding or ministerial act. Here,
 Great Concepts submitted a one-page sworn declaration
 that twice repeated the false statements immediately pre-
 ceding an express warning against false statements. J.A.
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 8                       GREAT CONCEPTS, LLC v. CHUTTER, INC.




 87. In addition, Great Concepts failed to take remedial ac-
 tion once it became aware of the false submission.
      Great Concepts argues that it should not be punished
 for its attorney’s conduct. See, e.g., Appellant’s Br. 53–57.
 But Great Concepts forfeited this argument by failing to
 raise it to the Board. In any event, Great Concepts cannot
 now “avoid the consequences of the acts or omissions of [its]
 freely selected agent.” Link v. Wabash R. Co., 

,
 633–34 (1962) (finding “no merit” and as “inconsistent with
 our system of representative litigation” for a party to “avoid
 the consequences of the acts or omissions of [its] freely se-
 lected” attorney).
     In sum, substantial evidence supports the Board’s find-
 ing of reckless disregard and inference of an intent to de-
 ceive. I would affirm the Board’s finding of fraud.
                        B. Cancellation
     The Lanham Act contemplates sanctioning and deter-
 ring fraud committed to obtain rights and benefits under
 the statute. Section 14 provides, in pertinent part, if a “reg-
 istration was obtained fraudulently,” the PTO is author-
 ized to sanction the registrant by cancelling the mark. 

 (Section 14 of the Lanham Act titled “Can-
 cellation of registration”); see also 

 § 1068 (authority to
 fashion relief in inter partes proceedings). The Board de-
 cided to cancel Great Concepts’ registration because Great
 Concepts’ combined declaration contained false material
 representations of fact with the intent to deceive. Decision,
 

, at *12–13. The Board’s decision is sup-
 ported by legal precedent.
     There exists an unbroken line of decisions that sup-
 ports cancelling a mark under Section 14 when a registrant
 fraudulently procures rights and benefits it is not entitled
 to. In Duffy-Mott, for example, our predecessor-court in
 1970 approved the PTO’s decision in an opposition proceed-
 ing to sanction a registrant who “attempted by false
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 GREAT CONCEPTS, LLC v. CHUTTER, INC.                        9



 representations in the [PTO] to secure through [its] regis-
 tration incontestable rights.” 

. “In con-
 formity with” the Board’s precedent addressing fraudulent
 filings and “in accord with the principle of the equitable
 doctrine of ‘unclean hands,’” the court barred the registrant
 from “rely[ing] on its registration for any purpose in the
 [PTO] or in this court on appeal therefrom.” 

 (emphasis added).
      Five years later, the Board held that fraud committed
 in filing a Section 15 declaration constituted a ground for
 cancellation. See Crown Wallcovering Corp. v. the Wall Pa-
 per Mfgs. Ltd., 

, 

, at *4
 (T.T.A.B. 1975). The Board emphasized the invaluable
 benefits of attaining incontestability. See 

. It ex-
 plained that the words “‘obtained fraudulently’ compre-
 hend not only the initial securance of a registration, but
 also the maintenance thereof, i.e., the securance of contin-
 uing rights of registration, by fraud.” Id.; see also, e.g.,
 Volkswagenwerk Aktiengesellschaft v. Advance Welding &
 Mfg. Corp., 

, 

, at *2
 (T.T.A.B. 1974) (“A contrary ruling would in effect sanction
 open and notorious fraud by those filing false affidavits un-
 der Sections 8, 9, 12(c) and 15 of the Statute and thereby
 serve to contravene and place in doubt the presumptions
 afforded registrations.”).
      A decade later, in addressing sanctions for fraudulent
 filings with the PTO, this court relied on Crown Wallcover-
 ing’s holding. See Torres v. Cantine Torresella S.r.l., 

 (Fed. Cir. 1986). In Torres, the court affirmed
 the Board’s cancellation of a mark based on the registrant’s
 fraudulent filings to renew a registration. 

. The
 court cited and affirmed two Board decisions cancelling the
 involved registration based on fraudulent post-registration
 filings. 

 at 48 (citing G. B. Kent & Sons, Ltd. v. Colonial
 Chem. Corp., 

, 

 (T.T.A.B.
 1969) and Crown Wallcovering, 

).
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 10                       GREAT CONCEPTS, LLC v. CHUTTER, INC.




     More recently in Bose, this court, citing Torres, reiter-
 ated that the Lanham Act imposes an obligation to “refrain
 from knowingly making false, material statements.” Bose,
 

. That obligation applies to “an applicant”
 seeking a registration, but also to “a registrant” seeking
 continuing and additional rights through the registration.
 

 (emphasis added). We “[held] that a trademark is ob-
 tained fraudulently under the Lanham Act only if the ap-
 plicant or registrant knowingly makes a false, material
 representation with the intent to deceive the PTO.” 

 (emphasis added).
     There is thus significant, sufficient legal support for
 the Board’s cancellation decision. Great Concepts has not
 shown otherwise. Nor does this case present any special
 circumstance warranting a departure from longstanding
 law. See, e.g., CSX Transp., Inc. v. McBride, 

,
 699 (2011) (restricting longstanding law would “ill serve
 the goals of ‘stability’ and ‘predictability’” that stare decisis
 aims to ensure).
                    II. MAINTAINING A MARK
     Great Concepts contends, and the majority agrees, that
 a fraudulent Section 15 declaration cannot form the basis
 for cancellation under Section 14. As noted supra, it is
 well-settled that fraud sanctionable under Section 14 en-
 compasses fraud committed in “obtaining” or “maintain-
 ing” a trademark registration. Great Concepts does not
 dispute this. See, e.g., Reply Br. 2. Great Concepts argues
 that a Section 15 declaration falls outside of the purview of
 Section 14 because a Section 15 declaration is exercised to
 obtain incontestability which, in its view, does not consti-
 tute “obtaining” or “maintaining” a registration. See Ap-
 pellant’s Br. 10, 17; Reply Br. 3. The parties appear to be
 in agreement that filing a Section 15 declaration does not
 “obtain” a registration, and instead, focus their contentions
 on whether a Section 15 declaration is undertaken to
 “maintain” the registration. See, e.g., Appellant’s Br. 17
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 GREAT CONCEPTS, LLC v. CHUTTER, INC.                        11



 (asserting that a Section 15 declaration “does not maintain
 the registration”); Appellee’s Br. 30 (“[Great Concepts’] dec-
 laration was indisputably necessary to ‘maintain’ the reg-
 istration.”).
      Great Concepts rests on an assumption that its filing
 was an “optional Section 15 Declaration of Incontestabil-
 ity.” Appellant’s Br. 10. The majority agrees and views
 this case as “just a fraudulent Section 15 declaration.” Maj.
 Op. 9. I disagree.
     The fraudulent filing at issue is a combined Sections 8
 and 15 declaration, which Great Concepts submitted for
 the purpose of maintaining its registration. See J.A. 87; see
 also J.A. 899 (Great Concepts CEO testimony); J.A. 614
 (counsel testimony). Great Concepts intended for the filing
 to satisfy the mandatory requirements to maintain its reg-
 istration; and as a result of this filing, Great Concepts’ reg-
 istration was kept alive and maintained in force. See J.A.
 87; see also Appellee’s Br. 30 (“the registration would have
 been cancelled under Section 8 if the declaration had not
 been filed”). The fact that Great Concepts elected to make
 a combined filing does not change the maintenance purpose
 or nature of this filing. 4 And because Great Concepts does
 not dispute that cancellation can be based on fraud com-
 mitted in “maintaining” a registration, the Board’s cancel-
 lation decision should be affirmed on this basis alone.



     4   False statements render the entirety of this com-
 bined declaration untruthful. As noted supra, the declara-
 tion explicitly warns that willful false statements “may
 jeopardize the validity of this document,” not just the falsi-
 fied part. J.A. 87 (emphasis added). The declaration does
 not purport to apply in one part to Section 8, and in another
 part to Section 15. There is no such division. Instead, in
 “execut[ing] this document,” Great Concepts declared “all
 statements” to be true. See id. (emphasis added).
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 12                     GREAT CONCEPTS, LLC v. CHUTTER, INC.




     Great Concepts also urges, and the majority agrees,
 that the agency’s cancellation authority under Section 14
 applies to certain types of fraud but never to fraud commit-
 ted to obtain incontestability rights. See Appellant’s Br. 14
 (contending that the Board cannot cancel a registration
 based on fraud committed in a Section 15 filing); Reply Br.
 2, 4; see also Maj. Op. 13. The majority thus constructs a
 milepost in the trademark administrative continuum, at
 which point (Section 15) fraudulent wrongdoing is green-
 lighted. The majority does not provide a principled ra-
 tionale for such a milepost.
      The rights and benefits that a registrant attains under
 the Lanham Act are part of a progressive administrative
 continuum. See B & B Hardware, 575 U.S. at 142–43 (dis-
 cussing rights and benefits conferred under the Lanham
 Act); see also Maj. Op. 4–5 (quoting B & B Hardware, 575
 U.S. at 142–43). The process commences with an applicant
 filing the initial application to register. B & B Hardware,
 575 U.S. at 143; see also 

 (requirements for
 application to register).
     Post application, a registrant may, by fulfilling perti-
 nent statutory requirements, obtain continuing and addi-
 tional rights extending from the registration. These rights
 include: continued ownership of and exclusive rights to use
 the mark, and incontestability status for the mark. 

 (continued use); 

 § 1059 (renewal); id.
 § 1065 (incontestability). The statute contemplates deter-
 ring fraud committed in procuring rights and benefits un-
 der the statute—either by “an applicant” seeking
 registration, or “a registrant” seeking continuing and addi-
 tional rights. See Bose, 

 (stressing the ob-
 ligation the Lanham Act imposes on the “applicant” and
 the “registrant” to refrain from fraud). Notably, the statute
 does not limit the PTO’s authority to penalize fraudulent
 behavior that only occurs in the early stages of this admin-
 istrative continuum.
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 GREAT CONCEPTS, LLC v. CHUTTER, INC.                      13



    The same rationale for ensuring truthful submissions
 applies throughout the trademark administrative contin-
 uum. See, e.g., 

 (setting forth require-
 ments for signing and filing documents with the PTO, and
 warning penalties for violating the same); J.A. 87 (warning
 against willful false statements, citing 

).
 The necessity for sanctions to deter fraud recognizes the
 PTO’s vested authority and discretion to regulate miscon-
 duct regardless of at which point it occurs along the contin-
 uum. 5
      I am not persuaded by Great Concepts’ assertions on
 the purported meaning of “maintaining.” Great Concepts
 asserts a restricted definition for “maintaining” that ex-
 cludes fraudulent declarations used to obtain incontesta-
 bility. According to Great Concepts, “[m]aintaining a
 registration” only encompasses “a Section 8 declaration of
 continuing use or a Section 9 renewal declaration.” Reply
 Br. 2. The majority similarly states that “[a] Section 15
 declaration is in no way necessary to maintaining registra-
 tion of a mark” and is not “an effort to ‘maintain’ a regis-
 tration.” Maj. Op. 10.
     I agree that a Section 15 declaration is optional. But
 the fact that a Section 15 submission is optional does not
 make it something other than an action of “maintaining”
 the registration. 6 Indeed, a Section 15 declaration “may


     5   As the PTO noted in its decision, “[t]he agency, as
 well as applicants and registrants, and all who rely on the
 accuracy of the Registers of marks and the submissions
 made to the USPTO in furtherance of obtaining or main-
 taining registration, must be able to rely on declarations
 and the truth of their contents.” Decision, 

, at *12.
     6   The PTO advises the public that a Section 15 dec-
 laration is a “maintenance” form and lists this filing under
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 14                      GREAT CONCEPTS, LLC v. CHUTTER, INC.




 also be used as the affidavit or declaration required by sec-
 tion 8,” which the majority does not dispute is an action of
 “maintaining” a mark. See 

 (emphasis
 added); see also Maj. Op. 10.
     Dicta cited by Great Concepts does not support a con-
 trary conclusion. Great Concepts points us to a statement
 in Duffy-Mott that Section15 “is not a question of maintain-
 ing a registration in force, which can be done by an affidavit
 under section 8(a).” Duffy-Mott, 

; see Ap-
 pellant’s Br. 17 (citing Duffy-Mott, 

). The
 Duffy-Mott court continued, “[i]t is a matter of acquiring a
 new right with respect to the goods specifically recited in
 the affidavit.” Duffy-Mott, 

. The court
 there made these statements to emphasize the value of in-
 contestability in that it confers an additional new right. 7



 the various actions for “maintaining a trademark registra-
 tion.” See, e.g., Registration Maintenance/Renewal/Cor-
 rection                   Forms,                    USPTO,
 https://www.uspto.gov/trademarks/maintain (last visited
 Sept. 14, 2023); Definitions for maintaining a trademark
 registration,     USPTO,       https://www.uspto.gov/trade-
 marks/maintain/forms-file/definitions-maintaining-trade-
 mark (last visited Sept. 14, 2023).
      7   Great Concepts’ citation to Bose does not support
 its proposed meaning of “maintaining,” either. See Reply
 Br. 2 (citing Bose, 

). In addressing fraud
 committed in renewing a registration, the court stated that
 Section 14 (

) allows cancellation based on
 “[f]raud in procuring a trademark registration or renewal.”
 See Bose, 

 (quoting Torres, 

);
 id. at 1246 (addressing alleged fraud in connection with the
 renewal filings at issue). This statement, while affirming
 that fraud in renewal falls within the purview of Section
 14, does not address what actions constitute maintaining a
 registration under the Lanham Act.
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 GREAT CONCEPTS, LLC v. CHUTTER, INC.                       15



      Great Concepts next contends that the maximum sanc-
 tion for fraud committed to obtain incontestability rights
 should be limited to the revocation of the incontestability
 status. See Appellant’s Br. 18. To support its contention,
 Great Concepts asks the court to reverse the Board’s deci-
 sion in Crown Wallcovering, where the Board held that “the
 filing of a fraudulent Section 15 affidavit constitutes a
 ground for cancellation” under Section 14. Crown Wallcov-
 ering, 

, at *4; see Reply Br. 3 (contending
 Crown Wallcovering “impermissibly extended Section 14 to
 cover fraud in Section 15 filings”). Great Concepts asserts
 that the Board was wrong in believing that its holding was
 “buttressed” by Duffy-Mott, because the Duffy-Mott court
 did not cancel the mark at issue. Appellant’s Br. 17–18.
 This argument fails for several reasons.
     First, Duffy-Mott involves an opposition proceeding.
 See Duffy-Mott, 

. Unlike here, the appli-
 cant there did not ask for the opposer’s mark to be can-
 celled. See 

. Indeed, the Duffy-Mott court
 imposed the sanction it deemed necessary and appropriate
 under the circumstances. See 

 (discussing the
 sanction imposed, deeming it “necessary” to deter the
 wrongdoing “as appears in this case”). 8 The court, how-
 ever, was not declaring a maximum penalty for fraudulent
 wrongdoing.
     Great Concepts has not demonstrated why after nearly
 50 years Crown Wallcovering should be overturned. As dis-
 cussed supra, this court affirmed Crown Wallcovering in


     8   Notably, the sanction in Duffy-Mott deprived the
 opposer “not only of the right of incontestability but also of
 the presumptions afforded to all registrations of marks
 upon the Principal Register under Section 7(b) of the Act.”
 See Crown Wallcovering, 

, at *4 (emphasis
 added) (discussing effect of the sanction imposed in Duffy-
 Mott, 

).
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 16                      GREAT CONCEPTS, LLC v. CHUTTER, INC.




 Torres. See Torres, 

. In turn, we then en-
 dorsed and reiterated Torres’s holding in Bose. See Bose,
 

. These decisions continue to govern
 practice and conduct before the PTO, on which the public
 has acted in reliance. 9 Such a repeated and consistent
 agency position “in this area of evident public reliance, pro-
 vide[s] a powerful reason” to “preserve, not upset, the es-
 tablished position.” Immersion Corp. v. HTC Corp., 

 (Fed. Cir. 2016); see also 

 (de-
 clining to upset “consistent, clearly articulated agency
 practice going back at least half a century, which has plau-
 sibly engendered large-scale reliance”).
     The majority agrees with Great Concepts’ proposal
 that the maximum penalty for fraud committed to obtain
 incontestability is losing incontestability, the very thing
 the registrant was not entitled to ab initio. See Maj. Op.
 13. And this potential loss would only materialize if the
 registrant somehow “gets caught.” This is unreasonable
 and overlooks the spirit and purpose of intellectual prop-
 erty protection. The law is clear that it is the obligation of
 the applicant and registrant to refrain from any form of in-
 equitable conduct. See, e.g., Bose, 580 F.3d at 1245–46 (dis-
 cussing obligation under the Lanham Act to refrain from
 fraud). It is not up to the public to act as “attorney gener-
 als” and detect fraud. And it is the wrongdoer that should



      9   See, e.g., Mecanicos Unidos S.A. v. Victorio, LLC,
 No. 92058060, 

, at *5 (T.T.A.B. Aug. 2,
 2016) (“[F]raud in procuring a trademark registration oc-
 curs when an applicant for registration knowingly makes
 false, material representations of fact in connection with
 an application to register or, in the case of maintaining a
 registration, when a registrant makes false, material rep-
 resentations of fact in connection with a Section 8 or 15 af-
 fidavit.” (citing Bose, 

, and Torres, 

)).
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 GREAT CONCEPTS, LLC v. CHUTTER, INC.                      17



 bear the consequence of committing fraud, not the general
 public.
      I disagree that Section 33(b) of the Lanham Act sup-
 ports a different conclusion by somehow precluding the
 Board from cancelling a registration under Section 14
 based on fraud in obtaining incontestability. See Maj. Op.
 14. The majority does not dispute that Congress contem-
 plated that fraud may occur in obtaining incontestability
 and that such fraud must carry a meaningful consequence.
 And I agree that under Section 33(b), Congress allows a
 litigant, in an infringement suit, to raise a defense and re-
 duce the evidentiary weight of incontestability based on
 fraud. See 

(b). The language of this sec-
 tion, however, does not “silently” dispossess the agency, in
 an administrative setting, of its authority to act under Sec-
 tion 14. We must not lose sight of the fact that the agency’s
 authority in sanctioning fraud is important because it is
 the general public that remains falsely informed that a
 mark was incontestable.
     Finally, we must decline the invitation to instruct the
 PTO on how to sanction fraudulent conduct. 10 In imple-
 menting and enforcing the Lanham Act, the PTO makes
 discretionary determinations based on “specialized experi-
 ence” in regulating conduct before the agency, furthering
 “uniformity in its administrative and judicial understand-
 ings of what a national law requires.” United States v.
 Mead Corp., 

 (2001); see Skidmore v. Swift
 & Co., 

 (1944) (explaining that


     10  The majority remands for the PTO to “evaluate
 whether to impose other sanctions on Great Concepts or its
 attorney.” Maj. Op. 21. To the extent there is a remand, I
 would consider it appropriate that the PTO be given the
 opportunity to clarify its position on whether filing a Sec-
 tion 15 declaration is an action of “maintaining” a registra-
 tion. See supra note 6.
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 18                     GREAT CONCEPTS, LLC v. CHUTTER, INC.




 interpretation and opinions of the agency “constitute a
 body of experience and informed judgment to which courts
 and litigants may properly resort for guidance”). The court
 has no business rejecting or usurping the agency’s exercise
 of its vested authority. Sanctioning inequitable conduct, as
 here, is an action within the PTO’s authority and discretion
 in implementing a statute that Congress entrusted it to ad-
 minister. And we have long held that trademark rights un-
 der the Lanham Act, and conduct before the PTO to secure
 such rights, are not “divorced from equitable principles.”
 See Duffy-Mott, 

.
     Fraud falls within a range of misconduct that equitable
 doctrines have come to identify and embrace. Therasense,
 Inc. v. Becton, Dickinson & Co., 

 (Fed.
 Cir. 2011) (discussing evolution of equitable doctrines and
 range of inequitable conduct). As Great Concepts recog-
 nizes, “patent inequitable conduct cases,” although not
 binding in the trademark context, provide valuable refer-
 ence for fraud in trademark cases. 11 Appellant’s Br. 35
 (Great Concepts stating that in cases involving fraud, this
 court has looked to “patent inequitable conduct cases” (cit-
 ing Bose, 580 F.3d at 1244–45)). In the patent context, “in-
 equitable conduct regarding any single claim renders the
 entire patent unenforceable” and may further endanger the
 patentee’s rights in related patents. Therasense, 

; see also, e.g., Kingsdown, 

. I see no
 reason to disturb the agency’s determination that



      11  The majority states that it finds unpersuasive “[ap-
 pellee] Chutter’s . . . analogy to patent law.” Maj. Op. 21.
 But it is Great Concepts that repeatedly urges the court to
 look to patent inequitable conduct cases to support its case.
 See e.g., Appellant’s Br. 33–38 (Great Concepts relying on
 Kingsdown, 

 and Therasense, 649 F.3d 1276—
 both are patent inequitable conduct cases—to argue no
 fraud); Reply Br. 19–21 (same).
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 GREAT CONCEPTS, LLC v. CHUTTER, INC.                    19



 cancelling the trademark registration is the appropriate
 sanction for the fraud committed here. Like the patent sys-
 tem, under the Lanham Act, a registrant secures owner-
 ship of and exclusive rights to use a mark in commerce,
 barring everyone else from using the same. See, e.g., 

 (registration as evidence of exclusive rights
 to use the mark). The public therefore has a “paramount
 interest in seeing that [such exclusive rights] spring from
 backgrounds free from fraud.” Precision Instrument Mfg.
 Co. v. Auto. Maint. Mach. Co., 

 (1945).
                        CONCLUSION
     I would affirm the Board’s cancellation of Great Con-
 cepts’ mark based on fraud. I respectfully dissent.