Spin Master, Ltd. v. Zobmondo Entertainment, LLC, 2011 U.S.Dist. LEXIS 25261
This is an exciting sequel to the Would You Rather… 9th Cir. decision I wrote about last year. In that case, the 9th Cir. said the district court erred in granting a cancellation based on descriptiveness. This meant defendant’s other grounds for summary judgment- fraud on the PTO- needed to be considered after all.
This decision illustrates just how difficult it is to prove a subjective intent to mislead the PTO in an application (though, to be fair, this didn’t appear to be a particularly close case based on the facts the district court lays out).