Sublime Cuisine Concept LLCv.Honyard LimitedDownload PDFTrademark Trial and Appeal BoardFeb 1, 2016No. 91218905 (T.T.A.B. Feb. 1, 2016) Copy Citation RK Mailed: February 1, 2016 Opposition No. 91218905 Sublime Cuisine Concept LLC v. Honyard Limited Before Quinn, Bergsman and Wolfson, Administrative Trademark Judges. By the Board: This matter comes up on Applicant’s motion (filed October 9, 2015) for involuntary dismissal under Trademark Rule 2.132(a). The motion is fully briefed. Trademark Rule 2.132(a) provides as follows: (a) If the time for taking testimony by any party in the position of plaintiff has expired and that party has not taken testimony or offered any other evidence, any party in the position of defendant may, without waiving the right to offer evidence in the event the motion is denied, move for dismissal on the ground of the failure of the plaintiff to prosecute. The party in the position of plaintiff shall have fifteen days from the date of service of the motion to show cause why judgment should not be rendered against him. In the absence of a showing of good and sufficient cause, judgment may be rendered against the party in the position of plaintiff. If the motion is denied, testimony periods will be reset for the party in the position of defendant and for rebuttal. UNITED STATES PATENT AND TRADEMARK OFFICE Trademark Trial and Appeal Board P.O. Box 1451 Alexandria, VA 22313-1451 General Contact Number: 571-272-8500 THIS DECISION IS NOT A PRECEDENT OF THE TTAB Opposition No. 91218905 2 Pursuant to the Board’s institution order of October 20, 2014, Opposer’s main testimony period opened August 27, 2015, and closed on September 25, 2015, and Applicant’s testimony period was scheduled to open on October 26, 2015. A motion under Trademark Rule 2.132(a) is timely if filed prior to the opening of the moving party’s testimony period. Trademark Rule 2.132(c). As Applicant’s motion was served and filed on October 9, 2015, the motion is timely. Turning to the merits of Applicant’s motion, we note that Opposer has asserted a claim of likelihood of confusion based on its putative common law use of CAJUN ASIAN. See Notice of Opposition, 1 TTABVUE 3.1 Applicant, in its answer, has denied the salient allegations of the notice of opposition and Opposer does not dispute that it failed to present any testimony or evidence during its testimony. Under these circumstances and in the face of a motion under Trademark Rule 2.132(a), Opposer must establish good and sufficient cause for its failure to take testimony. The standard used to determine good and sufficient cause is “excusable neglect.” See Grobet File Co. of Am. Inc. v. Associated Distribs. Inc., 12 USPQ2d 1649, 1651 (TTAB 1989) (“Only if the plaintiff establishes that the failure to offer evidence or take testimony during its trial period was occasioned by excusable neglect will a motion under 2.132(a) be denied and a new trial schedule issued. That 1 The notice of opposition claims Opposer uses the mark on “a product”; it does not specify the nature of that product. To provide context to Opposer’s claim, we note that the attachments to the notice imply that the product is a bar-b-que sauce. None of the attachments, however, are evidence in this case. Trademark Rule 2.122. Opposition No. 91218905 3 is because in order to show good and sufficient cause why judgment should not be entered against the plaintiff, the plaintiff must be able to reopen its testimony period in order to introduce testimony or other evidence.”). A determination of “excusable neglect” must take into account four factors: (1) the danger of prejudice to the non-moving party; (2) the length of 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. See Pumpkin Ltd. v. The Seed Corps, 43 USPQ2d 1582, 1586 (TTAB 1997). Opposer’s opposition to Applicant’s motion pertains to the third factor so we address that factor first. In its response to the motion, Opposer argues that Applicant’s motion should be denied because it “filed trial material with the Board within the deadlines on August 10, 2015, and August 11, 2015,”2 Opposer’s Opposition, 10 TTABVUE 2, and that the Board’s order of August 27, 2015, advising the parties “that the Board will give no further consideration to Opposer’s first set of production of documents and things, Opposer’s first set of answers to interrogatories, and Opposer’s first set of answers to Applicant’s requests for admission,” Board Order of August 27, 2015 (“Board Order”), 8 TTABVUE 2, merely “rejected the discovery responses” and that the Board “did still accept all other filings.” Opposer’s 2 We are unaware of the deadlines to which Opposer is referring inasmuch as August 11, 2015, was the deadline for submitting Opposer’s pretrial disclosures rather than “trial material” and Opposer’s testimony period did not open until August 27, 2015. Opposition No. 91218905 4 Opposition, 10 TTABVUE 2. We find this contention neither persuasive nor well-taken. The Board Order clearly noted the circumstances in which disclosures and discovery material may be filed with the Board, including “(3) under a notice of reliance during a party’s testimony period; or (4) as exhibits to a testimony deposition,” and informed the parties that “the documents filed on August 10, 2015 and August 11, 2015 were not filed with respect to any of these enumerated reasons” and, therefore, would be given no further consideration. Board Order, 8 TTABVUE 1-2. At a minimum, the testimonial references in the Board Order, and the fact that Opposer’s testimony period had yet to open vis-à-vis the Board’s unambiguous trial schedule, should have raised questions concerning the admission of Opposer’s materials into evidence in this proceeding. Thus, there is no basis in the Board Order for Opposer to believe that the Board “only rejected the discovery responses” but nevertheless “still accept[ed] all other filings” into the record of this proceeding. Indeed, even if Opposer was under a good faith but mistaken belief that the Board’s order served to merely exclude Opposer’s discovery responses, such mistake does not serve to excuse Opposer’s failure to properly introduce its evidence into the record during its assigned testimony period in accordance with the Federal Rules of Evidence and the relevant provisions of the Federal Rules of Civil Procedure, Title 28 of the United States Code and Part 2 of Title 37 of the Code of Federal Regulations. See Trademark Rule Opposition No. 91218905 5 2.122(a). This is particularly true considering that Opposer is represented by counsel and the Board’s schedule is unambiguous as to the period for Opposer’s testimony. See Baron Philippe de Rothschild S.A. v. Styl-Rite Optical Mfg. Co., 55 USPQ2d 1848, 1852 (TTAB 2000) (counsel’s misunderstanding or misinterpretation of Board rules does not constitute excusable neglect). Thus, the reason for Opposer’s failure to timely take testimony or introduce other evidence through notices of reliance during its assigned trial period (August 27, 2015, through September 25, 2015) was wholly within its control and so we find this factor to weigh against Opposer. As to the second factor, a reopening of the testimony period to allow Opposer to properly introduce evidence would certainly exacerbate the delay that has already been injected into these proceedings and therefore favors Applicant. As to the remaining factors, we find them to be neutral as there is nothing in the record to suggest prejudice to Applicant or bad faith on the part of Opposer. Weighing all of the factors together, we do not find that Opposer has demonstrated the requisite excusable neglect to deny Applicant’s motion and to grant a reopening of Opposer’s testimony period. As the plaintiff, Opposer bears the burden of proving both its standing to oppose the subject application and at least one valid ground for opposition. Since Opposer failed to timely take testimony or offer any evidence during its testimony period, Opposer cannot prove its standing or a ground for opposing Opposition No. 91218905 6 the involved application. Accordingly, this opposition proceeding is DISMISSED with prejudice pursuant to Trademark Rule 2.132(a). * * * Copy with citationCopy as parenthetical citation