Sublime Cuisine Concept LLCv.Honyard Limited

Trademark Trial and Appeal Board

Feb 1, 2016

No. 91218905 (T.T.A.B. Feb. 1, 2016)

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

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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

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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.
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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

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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

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the involved application. Accordingly, this opposition proceeding is
DISMISSED with prejudice pursuant to Trademark Rule 2.132(a).
* * *