Where a trademark attorney failed to act diligently and promptly in representing her clients before the United States Patent and Trademark Office, or USPTO, she was issued a public reprimand and placed on probation for 12 months.
This matter comes before the court on Elizabeth Pasquine’s amended petition for review of an agency order sanctioning her for violation of certain USPTO Rules of Professional Conduct. The court may reverse the USPTO’s decision only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
The first conclusion of the USPTO was that Pasquine failed to act diligently and promptly in representing her clients before the USPTO. There is a rational basis for this conclusion and thus it was not a clear error in judgement.
The rational basis for this conclusion includes that Pasquine never verified whether certain trademark documents she filed on the Trademark Electronic Application System, an electronic trademark filing and prosecution system, bearing client signatures were actually permissibly signed by them. She only assumed the ESIGN-ON method was used by the nonpractitioner assistants to obtain the signatures without having any verification or personal knowledge.
From January 2018 to June 2018, Pasquine was the attorney of record on many trademark documents that the DIRECT method was used to enter client signatures. However, the clients did not sign those documents directly; non-practitioner assistants did.
Pasquine argues her involvement with the trademark documents was limited to being the attorney of record and she did not personally handle the filing or review of those documents. Further, she argues she should not bear the consequences of what other attorneys of record may have done in approving documents with impermissible signatures.
However, the USPTO found that Pasquine caused to be prepared, signed and filed trademark documents on behalf of LegalForce clients in trademark applications for which she was the attorney of record and applications for which another LegalForce attorney was the attorney of record. Pasquine was also able to communicate with the non-practitioner assistants about the filing of trademark documents but never inquired about whether the signatures were permissibly obtained.
Pasquine attempts to argue the USPTO applied a strict liability standard when coming to a decision here. However, as appearing from the record, the USPTO considered all of the circumstances surrounding Pasquine and LegalForce before concluding she acted unreasonably.
The second conclusion the USPTO came to is that Pasquine failed to keep her clients reasonably informed about the impermissible signature practice at LegalForce and the potential consequences thereof. There was a rational basis for the USPTO’s conclusion and this was not a clear error in judgment.
Pasquine should have contacted her clients about the impermissible signature practice and the possible consequences to their trademark documents when the USPTO Office of Enrollment and Discipline sent her requests for information, or RFIs. The RFIs detailed the potentially improper client signatures on certain trademark documents that Pasquine was the attorney of record.
Pasquine raises efforts LegalForce undertook to contact clients affected by the signature practice that she believes the USPTO overlooked. However, there was a reasonable basis to conclude they insufficiently communicated the impermissible signature practice and failed to advise clients of the possible consequences and remedial steps that should be taken. Nothing brought forward by Pasquine excuses her failure to contact her clients about the practice nor does it demonstrate the USPTO’s conclusion was a clear error of judgment.
The USPTO decided a disciplinary sanction of public reprimand and 12 months of probation was appropriate because Pasquine’s conduct caused significant potential injury to her clients. Pasquine attempts to argue that her conduct was not likely to cause potential injury to her clients because there is a myriad of solutions when trademark applications are rejected, or registered trademarks are canceled due to an impermissible signature on a document. The court agrees with the USPTO discounting these solutions because Pasquine never undertook remedial action to limit the potential injury to her clients.
Pasquine insists her discipline is not commensurate in scope with her unethical conduct and that she should not have received the same sanction as the two other LegalForce attorneys disciplined for the impermissible signature practice. However, Pasquine clearly violated established regulations governing attorney practice and conduct before the USPTO.
Plaintiff’s amended petition denied. USPTO’s decision affirmed.
Pasquine v. Director of the United States Patent and Trademark Office, Case No. 1:22-cv-469, May 25, 2023. EDVA at Alexandria (Hilton). VLW 023-3-281. 12 pp.