Wednesday, August 17, 2011

8th Cir: Registered mark "300-850" for credit rating services invalid for descriptiveness and fraud on PTO

The 8th Circuit today upheld a jury verdict that the registered mark “300-850,” owned by FICO (a credit assessment service provider), was invalid because it was descriptive. (The court didn't say what listed goods and services were, but the PTO website reveals it's "Credit scoring services and credit risk management and risk management services". ) The court found that consumers perceived the mark to convey a range of credit scores, rather than as an indicator of source.

The court also upheld the jury’s verdict that FICO committed fraud on the PTO in obtaining registration of the mark. Specifically, FICO responded to a initial descriptiveness refusal by providing a literally true but “artful” response tricked the Examining Attorney into thinking that FICO, and FICO alone, used the phrase as a mark, when in fact FICO simply used it as a range of credit scores, as did others.

The case is Fair Isaac Corp. v. Experian Information Solutions, Inc., No. 10-2281 (8th Cir. Aug. 17, 2011).*

* The opinion also upholds the dismissal of FICO's antitrust claim against the three credit bureau defendants.

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