503 Sports LLCv.The National Association of Professional Baseball Leagues, Inc.

Trademark Trial and Appeal Board

Aug 27, 2021

91243580 (T.T.A.B. Aug. 27, 2021)

This Opinion is Not a Precedent of the TTAB Mailed: August 27, 2021 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ 503 Sports LLC v. The National Association of Professional Baseball Leagues, Inc. _____ Opposition No. 91243580 _____ Dustin Alameda, pro se, for 503 Sports LLC. Mary Frances Love and H. David Starr of Muncy Geissler Olds & Lowe PC, for The National Association of Professional Baseball Leagues, Inc. _____ Before Bergsman, Wellington and Greenbaum, Administrative Trademark Judges. Opinion by Greenbaum, Administrative Trademark Judge: I. Background On May 6, 2021, the Board issued a decision (“Final Decision”) dismissing the Notice of Opposition based on Opposer’s failure to establish its entitlement to a statutory cause of action (formerly known as “standing”),1 see Lumiere Prods., Inc. v. 1 Our decisions have previously analyzed the requirements of Sections 13 and 14 of the Trademark Act, 15 U.S.C. §§ 1063-64, under the rubric of “standing.” We now refer to this inquiry as entitlement to a statutory cause of action. Despite the change in nomenclature, Opposition No. 91243580 - 2 - Int’l Tel. & Tel. Corp., 227 USPQ 892, 893 (TTAB 1985) (failure to prove standing is a sufficient bases to dismiss the proceeding), and in the alternative, for Opposer’s failure to prove its sole claim of likelihood of confusion due to lack of evidence. 29 TTABVUE 4-5. Ten days later, Opposer timely filed an “Appeal of Final Decision,” which we construe as a Request for Reconsideration of the Final Decision and an implied Motion to Reopen. 30 TTABVUE. Applicant filed a response. 31 TTABVUE. II. Request for Reconsideration The purpose of reconsideration is to point out errors made by the Board in rendering its final decision. Trademark Rule 2.129(c), 37 C.F.R. § 2.129(c). Reconsideration may not be used to introduce into the record additional evidence or to reargue points presented in the requesting party’s brief on the case. Rather, the request normally should be limited to a demonstration that, based on the record evidence and the applicable law, the Board’s ruling is in error and requires appropriate change. See TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (“TBMP”) §§ 543 and 804 (June 2021) and cases cited therein. We see no error in the Final Decision. As stated in the Final Decision, entitlement to a statutory cause of action must be established in every inter partes case. Australian Therapeutic Supplies Pty. Ltd. v. Naked TM, LLC, 965 F.3d 1370, 2020 USPQ2d 10837, at *3 (Fed. Cir. 2020) ), reh’g en banc denied 981 F.3d 1083 (Dec. 4, 2020), petition for cert. filed, No. 20-1552 (Apr. our prior decisions and those of the Federal Circuit interpreting Sections 13 and 14 remain equally applicable. Opposition No. 91243580 - 3 - 28, 2021) (citing Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 125-26, 109 USPQ2d 2061, 2067 n.4 (2014)). A party in the position of plaintiff may oppose registration of a mark where such opposition is within the zone of interests protected by the statute, 15 U.S.C. § 1063, and the party has a reasonable belief in damage that is proximately caused by registration of the mark. Corcamore, LLC v. SFM, LLC, 978 F.3d 1298, 2020 USPQ2d 11277, at *6-7 (Fed. Cir. 2020), cert. denied, 2021 WL 2044561 (May 24, 2021). “Proof of [entitlement to a statutory cause of action] in a Board opposition is a low threshold, intended only to ensure that the plaintiff has a real interest in the matter, and is not a mere intermeddler.” Syngenta Crop Prot. Inc. v. Bio-Chek LLC, 90 USPQ2d 1112, 1117 n.8 (TTAB 2009) (citing Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d 1023, 1025-26 (Fed. Cir. 1999)). In the Final Decision, we found that “[b]ecause Opposer did not plead and introduce a United States trademark registration, or submit any timely evidence or testimony, and Applicant made no relevant admissions in its Answer, Opposer has not proved that it is entitled to a statutory cause of action as alleged in the Amended Notice of Opposition.” 29 TTABVUE 4. And, even if Opposer had proved such entitlement, we found in the alternative that “the lack of evidence also means that Opposer failed to carry the burden of proof as to all aspects of its likelihood of confusion claim. (citations omitted).” Id. at 4-5. Opposer has pointed to no error based on the current record, and we find none.2 We now turn to the implied Motion to Reopen the parties’ testimony periods which, 2 As noted in the Final Decision, we do not consider the evidence Opposer attached to its Reply Brief. We reiterate that in any event, consideration thereof would not have affected Opposition No. 91243580 - 4 - if granted, would allow Opposer time to submit evidence of its purported use of the pleaded mark. III. Motion to Reopen As an initial point, we note that Opposer has acted pro se throughout this proceeding. The September 12, 2018 Institution Order includes a section titled “Parties not Represented by Counsel,” in which the Board “strongly advises all parties to secure the services of an attorney who is familiar with trademark law and Board practice,” and informs the parties that “[t]he Board requires strict compliance with all applicable authorities whether or not the party is represented by counsel.” 2 TTABVUE 5. The Board Interlocutory Attorney discussed the matter of legal representation with the parties during their Discovery Conference; and in the March 14, 2019 Order recounting the Discovery Conference, the Board again “strongly recommended” that Opposer retain legal counsel, and specifically “urged” Opposer “to frequently consult the [TBMP] and the Trademark rules of practice, which are available from the USPTO website at www.uspto.gov” if Opposer chose to proceed without counsel. 10 TTABVUE 2. As last reset, Opposer’s testimony period was scheduled to close July 8, 2020 (opening 30 days earlier), and its Opening Brief was due by December 20, 2020. 19 TTABVUE 8. Opposer took no testimony and presented no evidence during its testimony period, nor did it file an Opening Brief by the due date. this decision because it is not authenticated, and therefore is of no probative value. 29 TTABVUE 3, and 3 n.4. Opposition No. 91243580 - 5 - On January 23, 2021, the Board ordered Opposer to show cause why the Board should not treat Opposer’s failure to file a brief as a concession of the case, quoting Trademark Rule 2.128(a)(3), 37 C.F.R. § 2.128(a)(3) in its entirety.3 23 TTABVUE 1. In response to the order to show cause, Opposer filed an Opening Brief, the first paragraph of which reads as follows: “To the board, I apologize for the late filing of the brief. The Covid-19 pandemic has been extremely difficult on both the business and personally and I have not been able to meet the deadline.” 24 TTABVUE 2. On February 1, 2021, the Board discharged the order to show cause. 25 TTABVUE 1. In an exercise of discretion, the Board also accepted Opposer’s brief and reset the remaining dates, starting with the due date for Applicant’s Brief, rather than entering judgment against Opposer under Rule 2.128(a)(3) for failure to take testimony or submit any other evidence. Id. at 1. Applicant then filed a Brief, Opposer filed a Reply Brief (with evidence attached), and the Board issued the Final Decision. Opposer now asks the Board to reopen trial “[d]ue to the extraordinary circumstances of the past year.” 30 TTABVUE 2. In particular, Opposer states: The trial dates were scheduled to begin in the spring of 2020 as COVID began to spread. As a small business owner I was barely keeping my business alive during this time and I am still struggling today. I assumed the trial was put on hold as most businesses closed during this time and lockdowns were in place throughout the country. I believe the NAPBL was under this impression as well due to the fact that they did not submit any documents. It seems 3 The last sentence of Trademark Rule 2.128(a)(3) reads as follows: “If a plaintiff files a response to the order showing good cause, but does not have any evidence of record and does not move to reopen its testimony period and make a showing of excusable neglect sufficient to support such reopening, judgment may be entered against plaintiff for failure to take testimony or submit any other evidence.” Opposition No. 91243580 - 6 - highly unlikely that their strategy was to simply ignore the trial period. While I checked back with the proceedings over the summer, I was admittedly unsure of the appropriate action to take and the status of the proceedings. When I was notified about the opening brief, I assumed it meant the beginning of our arguments so at that time I submitted evidence. I now understand evidence should have been submitted earlier. Id. at 2. In order to reopen its testimony period, Opposer must establish that its failure to take testimony during the scheduled testimony period was the result of excusable neglect. Fed. R. Civ. P. 6(b). See also TBMP § 509.01(b). In determining excusable neglect, the Board considers the following factors as set forth in Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 385 (1993), and adopted by the Board in Pumpkin, Ltd. v. The Seeds Corps, 43 USPQ2d 1582 (TTAB 1997) (1) the danger of prejudice to the non-moving party; (2) the length of the delay and its potential impact on judicial proceedings; (3) the reason for the delay, including whether it was within the reasonable control of the moving party; and (4) whether the moving party has acted in good faith. The determination of whether a party’s neglect is excusable is “at bottom an equitable one, taking into account all relevant circumstances[.]” Pioneer, 507 U.S. at 395; accord FirstHealth of the Carolinas v. CareFirst of Maryland Inc., 479 F.3d 825, 81 USPQ2d 1919, 1922 (Fed. Cir. 2007); Pumpkin, 43 USPQ2d at 1584 n.2. Ultimately, however, the determination of whether a party’s neglect is excusable lies within the Board’s discretion. FirstHealth of the Carolinas, 81 USPQ2d at 1921. Opposition No. 91243580 - 7 - Although we find no evidence that Opposer acted in bad faith by filing the Motion to Reopen, or any cognizable prejudice to Applicant’s ability to litigate the case were we to grant the Motion, the circumstances which Opposer describes do not persuade us that it was reasonable for Opposer not to go forward with trial during its testimony period. While the COVID-19 pandemic is beyond Opposer’s reasonable control, Opposer has not specifically explained how the pandemic prevented it from meeting the deadlines in this proceeding, or requesting an extension of time to do so.4 See HKG Indus. Inc. v. Perma Pipe, Inc., 49 USPQ2d 1156, 1158 (TTAB 1998) (motion to reopen denied because the movant failed to provide detailed factual supporting information). The remainder of Opposer’s explanation reveals a misunderstanding of the Board’s rules and procedures, which easily could have been corrected if Opposer had contacted the Board (either the Interlocutory Attorney or the TTAB Assistance Center). Opposer’s failure to seek guidance from the Board at any time after the Discovery Conference was entirely within Opposer’s control. 4 For example, the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), which recognized that the COVID-19 pandemic imposed significant hardships, was enacted on March 27, 2020. The USPTO extended certain TTAB deadlines three times; the last extension expired on May 31, 2020. The “May 2020 Update Regarding Certain Trademark-Related Timing Deadlines under the CARES Act (uspto.gov)” (available on the USPTO website) states, in pertinent part: “With regard to proceedings before the TTAB, if the COVID-19 outbreak has prevented or interfered with a filing, parties can make a request (in ex parte appeals) or motion (for trial cases) for an extension or reopening of time, as appropriate.” Under the May 2020 Update, if a missed deadline occurred on or before May 31, 2020, a request to extend or reopen the deadline generally was granted if the moving party included a simple reference to the impact of COVID-19 on the party’s ability to meet the deadline. However, the May 2020 Update does not aid Opposer, whose testimony period did not open until approximately one week after the May 31, 2020 extension expired. Opposition No. 91243580 - 8 - In addition, approximately ten months have elapsed since Opposer’s testimony period closed, and the Board has issued a Final Decision. Resetting testimony periods at this point would run counter to the Board’s interest in an expeditious adjudication of this and other cases, and Applicant’s interest in the resolution of this case. See Pumpkin, 43 USPQ2d at 1588 (“The Board, and parties to Board proceedings generally, clearly have an interest in minimizing the amount of the Board’s time and resources that must be expended on matters[.]”). Opposer, as the moving party, has failed to meet its burden to establish excusable neglect. IV. Conclusion In sum, Opposer has not demonstrated that, based on the evidence properly of record (of which there is none), an admission by Applicant in the Answer, and the applicable law, the Final Decision is in error. Nor has Opposer met its burden to establish the requisite excusable neglect that would warrant a reopening of the trial periods. Decision: Opposer’s Request for Reconsideration and Motion to Reopen are denied.