Nationstar opposed an application for NATIONSTAR filed by an individual named Mujahid Ahmad. Nationstar claimed Mr. Ahmad committed fraud on the U.S. Patent and Trademark Office. tMr. Ahmad is a real estate agent. He filed his application to register NATIONSTAR for various services including real estate brokerage, mortgage brokerage and insurance brokerage services. Mr. Ahmad was not licensed to provide any brokerage services. He filed the application himself, claiming he had used the mark in commerce in connection with all of the services at the time of filing the application.
As established in In re Bose Corp. (580 F.3d 1240, 91 USPQ2d 1938 (Fed. Cir. 2009)), Nationstar had to establish the Mr. Ahmad knowingly made false, material representations of fact in connection with his application with intent to deceive the USPTO. Further, the evidence of fraud must be clear and convincing. Fortunately, Mr. Ahmad made it easy for Nationwide to meet this heavy burden.
For example, despite including “real estate brokerage” services in his application, Mr. Ahmad specifically testified that he is not a real estate broker. Mr. Ahmad is the owner and president of his real estate agency business, but claimed to not know if the business had earned any income. Mr. Ahmad ultimately testified that the company had not done any business and had not filed any tax returns. He was also unable or unwilling to identify documents he created or had created to advertise the services he might have provided. Rather, he claimed no knowledge about creation of any advertising materials. The Board expressed “grave concerns about the credibility” of any of Mr. Ahmad’s testimony and ultimately held that he was not using the mark in commerce in connection with any of the services identified in the application prior to filing the application.
Nationwide still had to establish that Mr. Ahmad’s false representations were made knowingly and with intent to deceive. The Board found this conclusion to be inescapable. The record clearly established that Mr. Ahmad knew he was not offering all of the identified services when he filed the application. The Board will infer deceptive intent if the evidence indicates sufficient culpability, including in cases such as this where the testimony is found to lack credibility. For example, Mr. Ahmad demonstrated that he knew and understood that many of the services identified in his application require a special license that he did not have. Unlike in In re Bose, Mr. Ahmad was found to have made false statements about his own industry and activities, knowing that he did not have the appropriate licenses to provide such services.
Finally, during the opposition, Mr. Ahmad amended his application to change the filing basis from “use in commerce” to “intent to use.” The Board confirmed that once an opposition has been filed, fraud cannot be cured merely by amending the filing basis. Rather, fraud is measured by the statements made at the time of filing the application.
Nationstar Mortgage LLC v. Mujahid Ahmad, Opposition No. 91177036 (TTAB September 30, 2014) [precedential].