Attorney Throws in Towel, Enters into Exclusion on Consent Agreement
The USPTO proceedings involving one of the owners of Trademark Engine, LLC have ended, and the outcome may be highly instructive to attorneys who practice before the USPTO in trademark matters. The primary lesson is that the Office of Enrollment and Discipline (“OED”) is paying close attention to practitioners, including those who purportedly have a duty to supervise non-practitioners, and will zealously investigate possible instances of the unauthorized practice of law, failure to supervise, and other violations of the USPTO Rules of Professional Conduct.
According to the allegations in In re Travis S. Crabtree, Proceeding Nos. D2018-31 & D2018-47 (USPTO, April 25, 2019), Mr. Crabtree is the owner, general counsel, and managing member of Trademark Engine, which he established in 2016 offering discount trademark registration services to customers. Like many e-commerce legal service providers, Trademark Engine appears to have employed non-practitioners who largely interface with the customers. Notably, Trademark Engine is not alleged to have been a law firm.
Sometime in FY 2018, the OED Director filed two disciplinary Complaints against Mr. Crabtree, alleging that several of Trademark Engine’s business practices violated the USPTO Rules of Professional Conduct. The alleged misconduct includes violations of 37 CFR § 11.101 (failure to provide competent representation), and 37 CFR § 11.503(a), (b) and (c) (failure to supervise, and erroneously ratifying non-practitioner conduct that violates USPTO rules), among other violations. In one instance it is alleged that Trademark Engine non-practitioner employees submitted an express abandonment on behalf of a customer without the customer’s knowledge or consent by using a signature cut-and-paste protocol. Additionally, employees on various occasions are alleged to have violated company policy by answering questions or providing information that constituted legal advice, including in some instances offering suggestions to customers related to class, specimen acceptability, and description. Notably, the final order alleged that Mr. Crabtree drafted the protocols and procedures employed by the non-practitioner employees and is responsible for supervising their conduct.
Mr. Crabtree appears to have vigorously defended himself against these Complaints, but when the proceedings came to a conclusion in late April, the USPTO accepted Mr. Crabtree’s Affidavit of Resignation Pursuant to 37 CFR § 11.27 and issued a Final Order excluding Mr. Crabtree on consent from practice before the USPTO in trademark and other non-patent matters. By entering into an exclusion on consent agreement, Mr. Crabtree has voluntarily given up the ability to provide U.S. trademark-related legal services for a minimum of five years. While every state differs in how they will approach this Final Order, the USPTO treats such an exclusion on consent as a disbarment. See, e.g., 37 CFR § 11.24(a) (“A practitioner is deemed to be disbarred if he or she is disbarred, excluded on consent, or has resigned in lieu of a disciplinary proceeding.”) (Emphasis added.)
Notably, practitioners should be aware that OED is watching. In the case where a licensee has management or control over certain law-related tasks, the attorney’s conduct will continue to draw the scrutiny of the OED, and OED will utilize their full range of enforcement tools to investigate allegations of practitioner misconduct and the unauthorized practice of law. The loudest message is that clear protocols, staff training, and thorough supervision are required to create the hard and bright line that separates a profitable business model from a violation of USPTO Rules.
For additional information and practice tips related to the defense of OED proceedings, contact Carr Butterfield, LLC at 503-635-5244.
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