Roy Bradshawv.Cabela’s, Inc.

Trademark Trial and Appeal Board

Jun 15, 2005

No. 92028640re (T.T.A.B. Jun. 15, 2005)

Mailed:
15 June 2005
AD

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
______

Roy Bradshaw
v.
Cabela’s, Inc.
_____

Cancellation No. 92028640

_____

Request for Reconsideration
_____

Roy Bradshaw, pro se.

Barry L. Kelmachter of Bachman & LaPointe, P.C. for
Cabela’s, Inc.
______

Before Sams, Chief Administrative Trademark Judge1 and
Chapman and Drost, Administrative Trademark Judges.

Opinion by Drost, Administrative Trademark Judge:
On June 29, 2004, the board denied Roy Bradshaw’s
petition to cancel respondent’s trademark registration (No.
2,119,664). Subsequent to that decision, a series of papers
were filed with board. We now address those filings, which
we will refer to by the date on the papers.

1 Chief Judge Sams was substituted for Judge Simms who retired
after the original decision in this case.
THIS DISPOSITION IS
NOT CITABLE AS
PRECEDENT OF THE TTAB
Cancellation No. 92028640
2
On July 27, 2004, petitioner filed, inter alia, a
“Motion for Extension of Time to File Brief for
Reconsideration of the Board’s Final Decision.”2 Respondent
has opposed the request for an extension of time.
Petitioner’s request for an extension of time to file a
brief seeking reconsideration is GRANTED to the extent that
petitioner is permitted an additional 30 day period of time
to file his motion for reconsideration.3
Petitioner filed a “Brief in Support of His Request for
Reconsideration” dated August 14, 2004. Respondent has
moved to strike petitioner’s brief because it “must be filed
within one month from the date of the decision.” Motion to
Strike dated August 30, 2004 at 1. Respondent also filed a
response to petitioner’s brief. In view of our
abovementioned grant of petitioner’s request for an
extension of time, respondent’s motion to strike is DENIED.
In a paper dated September 13, 2004, petitioner filed a
“Reply Brief in response to Registrant’s Brief in Response
to Petitioner’s Request for Reconsideration.” In a paper
dated September 28, 2004, respondent moved to strike
petitioner’s reply brief. In a paper dated October 11,

2 The July 27, 2004, paper also included a skeletal motion for
reconsideration.
3 On July 19, 2004, petitioner filed an unnecessary notice of
appeal to the board from the board’s decision. His July 27,
2004, paper now seeks to annul that appeal and respondent does
not oppose this request. We agree that the notice of appeal and
the fee was not necessary. Petitioner may request a refund of
the appeal fee.
Cancellation No. 92028640
3
2004, petitioner responded to respondent’s motion to strike
his reply brief. As petitioner has argued, “the Board
may, in its discretion, consider such a brief.” TBMP § 543
(2d ed. rev. 2004). However, we do not find that
petitioner’s reply brief clarifies the issues and,
therefore, we GRANT respondent’s motion to strike to the
extent that we will not consider the reply brief.4
In a paper dated November 1, 2004, petitioner filed a
second notice of appeal in which he “hereby appeals to the
Trademark Trial and Appeal Board from the decision of the
Trademark Examining Attorney dated June 29, 2004.” In a
paper dated January 3, 2005, petitioner filed an appeal
brief. Respondent filed a “Combined Motion to Strike Appeal
Brief and Memorandum” dated January 24, 2005, seeking (p. 2)
“to strike the Appeal Brief as being both untimely and
essentially a regurgitation of the matters raised as part of
the Request for Reconsideration filed by petitioner.” In a
paper dated February 22, 2005, petitioner filed a response
to respondent’s combined motion to strike. Again, we point
out that petitioner’s notice of appeal is unnecessary.
Petitioner has requested reconsideration of the board’s
decision of June 29, 2004. We have granted petitioner’s
request to extend his time to file a motion for

4 We do add that even if we considered the reply brief, it would
not change the outcome in this proceeding.
Cancellation No. 92028640
4
reconsideration. Petitioner has filed his brief in support
of his request for reconsideration. Contrary to the
petitioner’s statement in his notice of appeal dated
November 1, 2004, the June 29, 2004, decision was a decision
of the Trademark Trial and Appeal Board (TTAB), not the
Trademark Examining Attorney. There is no provision to
“appeal” from a decision of the TTAB to the TTAB.
Therefore, we will not consider petitioner’s brief dated
January 3, 2005, respondent’s response, or petitioner’s
response except to determine whether to accept these
papers.5 Inasmuch as there is no provision to “appeal” to
the board from the board, we will not consider these papers
on the merits.
Now, we are left with the fact that petitioner has
sought reconsideration of our decision dated June 29, 2004,
and respondent has opposed this request. In his brief in
support of his motion for reconsideration, petitioner
essentially reargues points that have been addressed in the
board decision of June 29, 2004. Therefore, petitioner’s
motion for reconsideration is DENIED.
At this point, we note that this is a final decision of
the Trademark Trial and Appeal Board. For petitioner’s
convenience, we set out the following rule (Code of Federal

5 Again, petitioner may seek a refund of his appeal fee that
accompanied his second notice of appeal.
Cancellation No. 92028640
5
Regulations, Title 37) concerning any subsequent
proceedings.
§2.145 Appeal to court and civil action.
(a) Appeal to U.S. Court of Appeals for the Federal
Circuit. An applicant for registration, or any party
to an interference, opposition, or cancellation
proceeding or any party to an application to register
as a concurrent user, hereinafter referred to as inter
partes proceedings, who is dissatisfied with the
decision of the Trademark Trial and Appeal Board and
any registrant who has filed an affidavit or
declaration under §8 of the Act or who has filed an
application for renewal and is dissatisfied with the
decision of the Director (§§2.165, 2.184), may appeal
to the U.S. Court of Appeals for the Federal Circuit.
The appellant must take the following steps in such an
appeal:
(1) In the Patent and Trademark Office give written
notice of appeal to the Director (see paragraphs (b)
and (d) of this section);
(2) In the court, file a copy of the notice of appeal
and pay the fee for appeal, as provided by the rules of
the Court.

(b) Notice of appeal. (1) When an appeal is taken to
the U.S. Court of Appeals for the Federal Circuit, the
appellant shall give notice thereof in writing to the
Director, which notice shall be filed in the Patent and
Trademark Office, within the time specified in
paragraph (d) of this section. The notice shall
specify the party or parties taking the appeal and
shall designate the decision or part thereof appealed
from.
(2) In inter partes proceedings, the notice must be
served as provided in §2.119.
(3) Notices of appeal directed to the Director shall be
mailed to or served by hand on the General Counsel,
according to part 104 of this chapter, with a duplicate
copy mailed or served by hand on the Trademark Trial
and Appeal Board.

(c) Civil action. (1) Any person who may appeal to the
U.S. Court of Appeals for the Federal Circuit
(paragraph (a) of this section), may have remedy by
civil action under §21(b) of the Act. Such civil
action must be commenced within the time specified in
paragraph (d) of this section.
Cancellation No. 92028640
6
(2) Any applicant or registrant in an ex parte case who
takes an appeal to the U.S. Court of Appeals for the
Federal Circuit waives any right to proceed under
§21(b) of the Act.
(3) Any adverse party to an appeal taken to the U.S.
Court of Appeals for the Federal Circuit by a defeated
party in an inter partes proceeding may file a notice
with the Office, addressed to the Office of the General
Counsel, according to part 104 of this chapter, within
twenty days after the filing of the defeated party's
notice of appeal to the court (paragraph (b) of this
section), electing to have all further proceedings
conducted as provided in section 21(b) of the Act. The
notice of election must be served as provided in
§2.119.
(4) In order to avoid premature termination of a
proceeding, a party who commences a civil action,
pursuant to section 21(b) of the Act, must file written
notice thereof at the Trademark Trial and Appeal Board.

(d) Time for appeal or civil action. (1) The time for
filing the notice of appeal to the U.S. Court of
Appeals for the Federal Circuit (paragraph (b) of this
section), or for commencing a civil action (paragraph
(c) of this section), is two months from the date of
the decision of the Trademark Trial and Appeal Board or
the Director, as the case may be. If a request for
rehearing or reconsideration or modification of the
decision is filed within the time specified in
§§2.127(b), 2.129(c) or 2.144, or within any extension
of time granted thereunder, the time for filing an
appeal or commencing a civil action shall expire two
months after action on the request. In inter partes
cases, the time for filing a cross-action or a notice
of a cross-appeal expires
(i) 14 days after service of the notice of appeal or
the summons and complaint; or
(ii) Two months from the date of the decision of the
Trademark Trial and Appeal Board or the Director,
whichever is later.
(2) The times specified in this section in days are
calendar days. The times specified herein in months
are calendar months except that one day shall be added
to any two-month period which includes February 28. If
the last day of time specified for an appeal, or
commencing a civil action falls on a Saturday, Sunday
or Federal holiday in the District of Columbia, the
time is extended to the next day which is neither a
Saturday, Sunday nor a Federal holiday.
Cancellation No. 92028640
7
(3) If a party to an inter partes proceeding has taken
an appeal to the U.S. Court of Appeals for the Federal
Circuit and an adverse party has filed notice under
section 21(a)(1) of the Act electing to have all
further proceedings conducted under section 21(b) of
the Act, the time for filing a civil action thereafter
is specified in section 21(a)(1) of the Act. The time
for filing a cross-action expires 14 days after service
of the summons and complaint.

(e) Extensions of time to commence judicial review.
The Director may extend the time for filing an appeal
or commencing a civil action (1) for good cause shown
if requested in writing before the expiration of the
period for filing an appeal or commencing a civil
action, or (2) upon written request after the
expiration of the period for filing an appeal or
commencing a civil action upon a showing that the
failure to act was the result of excusable neglect.