RD doesn't know as much about trademark law as he thinks he does. This quote explains the actual law behind First Use in Commerce dates. It comes from
Standard Knitting v. Toyota, 77 USPQ2d 1917:
quote:
Fraud must be proven with clear and convincing evidence, and any doubt must be resolved against a finding of fraud. See Giant Food, Inc. v. Standard Terry Mills, Inc., 229 USPQ 955, 962 (TTAB 1986) and cases cited therein. Furthermore, fraud will not lie if it can be proven that the statement, though false, was made with a reasonable and honest belief that it was true. See Woodstock's Enterprises Inc. (California) v. Woodstock's Enterprises Inc. (Oregon), 43 USPQ2d 1440 (TTAB 1997).
The critical question is whether the marks were in use in connection with the identified goods as of the filing date of the use-based applications and as of the filing date of the statement of use in the intent-to-use application. If the mark was in current use, then the first use, even if false is not fraud. See Colt Industries Operating Corp. v. Olivetti Controllo Numerico S.p.A., 221 USPQ 73, 76 (TTAB 1983) ("The Examining Attorney gives no consideration to alleged dates of first use in determining whether conflicting marks should be published for opposition.")
In simpler language, the TTAB (the court that reviews trademark disputes) presumes against a finding of fraud in all cases, and since we were obviously using the 12th Man in commerce by the filing date (1994), then it becomes a non-issue.
Even failing that, nobody would expect a trademark attorney to do a thorough search of the Cushing library archives or whatever to contemporaneously fact-check the E. King Gill story when there were so many other sources repeating the 1922 date, so it wouldn't rise to the level of knowing misrepresentation in an opposition proceeding.
The USPTO is only concerned with "First Use in Commerce." Random articles from Iowa newspapers or wherever are irrelevant without commerce. And even on the off-chance it was shown used in commerce before whatever the revised date turns out to be, it would only be sufficient to give whoever could prove prior use in commerce common-law rights to use the mark alongside us, not to cancel the mark into a free-for-all.
[This message has been edited by Iosh (edited 2/1/2014 1:55p).]