Earlier this year, in Dino Danelli and Edward Brigati v. Beata Music LLC, Opposition No. 91249965 (March 29, 2024) (not precedential), the Board issued a 55-page opinion sustaining an opposition to the registration of a mark. Briefly, the parties we involved in a civil action with respect to a mark: “The Rascals.” After a number of suspensions of the Board proceeding due to the civil action, the parties submitted cross-motions for summary judgment (as interpreted by the Board due to the nature of the pleadings). The Board ultimately sustained the opposition to registration of the mark. Sounds like a simple case, but it was not.
Footnote 1 set the tone of the Order, and chided counsel to use citations to the record in their brief, rather than simply attaching previously-filed evidence to their briefs. However, Section C of the Order calls out the Defendant-Applicant’s brief, filed by A. Eric Bjorgum:
We note with extreme disfavor the brief submitted by Applicant in response to the Board’s order, which is barely comprehensible. Specifically, the brief is rife with misspellings, incomplete and/or non-sensical sentences; it includes abbreviated references to a document that was not clearly identified and a citation thereto was not provided; and Applicant referred to cases without sufficient argument to connect them to material fact at issue.
The Order goes on to quote the brief, in-part, ultimately concluding: “…we find it more likely than not that Applicant’s most recent submission to the Board was partially AI-assisted.” The Board went on to analyze the filing, in light of 37 C.F.R. § 11.18, including citing to the USPTO’s guidance regarding artificial intelligence. The Board also cited to the famous Avianca case. Most crucial for educating practitioners regarding AI usage is the Board’s analysis of their abilities under 11.18, including the ability to strike an offending paper, or in this case affecting the weight given to the paper. In doing so, the Board stated:
Given the near unintelligble [sic] nature of Applicant’s submission, we will not attempt to guess or construe the meaning or purpose of most of the content of the document. “Judges are not like pigs, hunting for truffles buried in briefs.” United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991). Rather, we shall consider only the facts and arguments that are clearly discernable, including the declaration submitted with Applicant’s evidence and acceptable materials attached thereto.
After reading the brief, I agree that it is unintelligible. However, it is difficult to discern whether it was created using AI, or if it instead was created using a Dictaphone or in some sort of rush. We all make mistakes with spelling, and may even forget to complete a thought; however, this brief had more problems than that.
I am reticent to stay that this brief was prepared using an AI tool, without more context. However, if the brief was drafted using AI, this may have been the first USPTO Board Order regarding the use of AI. It is most surprising that Attorney Bjorgum did not work to correct the record to avoid any referrals to OED or his state bars. It remains to be seen what, if any, action we will see regarding this alleged conduct. What is certain is that this Order is a lesson for practitioners to carefully review their filings.
