UNITED STATES PATENT AND TRADEMARK OFFICE
`Trademark Trial and Appeal Board
`P.O. Box 1451
`Alexandria, VA 22313-1451
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`
`
`
`
`
`
`
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` Mailed: February 25, 2013
`
`Opposition No. 91207982
`
`Crtek Entertainment GmbH
`
`
`v.
`
`
`iConnectUS LLC
`
`
`
`jk
`
`
`
`By the Board:
`
` This proceeding is before the Board for consideration of
`
`opposer’s motion (filed January 25, 2012) to strike answer and
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`for default judgment under Trademark Rule 2.106(a).1 The
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`motion has been fully briefed.
`
` As reset by stipulation, applicant’s answer was due by
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`January 23, 2013. On January 24, 2013, applicant filed its
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`answer, as well as a motion for a 30-day extension of time
`
`(until March 23, 2013) to answer.2
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` On January 25, 2013, opposer filed its motion for default
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`judgment, arguing, inter alia, that applicant had sufficient
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`time to confer with its new counsel and to file its answer.
`
`
`1 Inasmuch as opposer requests judgment by default, its motion is
`construed as a motion for default judgment, rather than as a
`motion to strike. Based on the Board’s findings set forth herein
`below, relief in the form of striking applicant’s answer is
`denied.
`2 Inasmuch as the Board accepts the late-filed answer (as
`discussed herein below), applicant’s motion for an extension of
`time, which is and should have been filed as a motion to reopen
`time pursuant to Fed. R. Civ. P. 6(b)(1)(B), is moot and will be
`given no further consideration. See TBMP § 509.
`
`

`
`Opposition No. 91207982
`
`
`Opposing the motion, applicant argues, inter alia, that it was
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`changing counsel and retaining new counsel on January 23, 2013,
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`that it believed its answer was due on January 24, 2013, and
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`that there had been a miscommunication regarding the answer due
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`date during the time it was retaining new counsel.
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`Default and answer
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` The standard for determining whether default judgment
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`should be entered for failure to timely answer is the Fed. R.
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`Civ. P. 55(c) standard, namely, whether a defendant has shown
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`good cause why judgment by default should not be entered
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`against it.3 See TBMP §§ 312.01 and 508. As a general rule,
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`good cause to set aside a defendant’s default will be found
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`where the defendant’s delay has not been willful or in bad
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`faith, when prejudice to the plaintiff is lacking, and where
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`the defendant has a meritorious defense to the action. See,
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`e.g., Fred Hayman Beverly Hills, Inc. v. Jacques Bernier, Inc.,
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`21 USPQ2d 1556, 1557 (TTAB 1991). It is the policy of the law,
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`and the preference of the Board, where appropriate, to decide
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`cases on their merits. See TBMP § 312.02.
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` Upon thorough review of this proceeding, the record does
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`not suggest evasive conduct, bad faith or gamesmanship on
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`applicant’s part, and does not indicate that the failure to
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`answer by the due date, as reset, was the result of deliberate
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`inattentiveness to this proceeding. For example, prior to the
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`
`
`2
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`

`
`Opposition No. 91207982
`
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`originally-set due date to file an answer, applicant sought
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`agreement to, and filed, a reasonable extension request.
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`Applicant’s activities at the time its answer was due, as
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`reset, centered on securing legal counsel, and do not indicate
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`willfully dilatory behavior on its part. The answer was filed
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`one day late and thus did not cause a lengthy delay;
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`furthermore, the substance of said answer indicates that
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`applicant intends to defend this proceeding and to set forth a
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`plausible and meritorious defense to opposer’s claims.
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` In its brief, opposer does not articulate any specific
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`prejudice that it has endured or unreasonable delay it will
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`bear, in preparing and putting forth its case, that is or
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`would be attributable to applicant’s failure to answer by the
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`reset due date. Furthermore, the parties’ December 21, 2012
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`consented motion states that the parties were exploring
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`possible settlement of this matter.
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` In view of all of the circumstances presented in the
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`record, the Board finds that applicant has demonstrated the
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`requisite good cause to set aside its default. Accordingly,
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`applicant’s default is hereby set aside, and judgment will
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`not be entered against applicant on that basis. Fed. R.
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`Civ. P. 55(c). Opposer’s motion for default judgment is
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`denied, and the late-filed answer is accepted as applicant’s
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`operative pleading in this proceeding.
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`3 Fed. R. Civ. P. 55 is applicable to Board proceedings by
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`
`
`3
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`

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`Opposition No. 91207982
`
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`Service of papers
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` Applicant’s January 24, 2013 answer includes proof of
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`service which is captioned “Certificate of Mailing” and
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`states that counsel for opposer was served “electronically;”
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`its motion filed the same day includes proof of service
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`which indicates service “via e-mail.” The record does not
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`include a stipulation to exchange service copies by email
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`pursuant to Trademark Rule 2.119(b)(6). If the parties have
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`so stipulated, they are directed to reduce their agreement
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`to writing, and are referred to TBMP § 113.05 regarding how
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`this method of service has an effect on response times. The
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`Board retains the discretion to deny consideration of any
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`late-filed motion or brief.
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`Schedule
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`
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`Proceedings are resumed. Conference, disclosure,
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`discovery and all trial dates are reset as follows (see TBMP
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`§ 508):
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`3/25/2013
`3/25/2013
`4/24/2013
`8/22/2013
`9/21/2013
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`11/5/2013
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`Deadline for Required Discovery
`Conference
`Discovery Opens
`Initial Disclosures Due
`Expert Disclosures Due
`Discovery Closes
`Plaintiff's Pretrial
`Disclosures due
`Plaintiff's 30-day Trial Period
`Ends
`Defendant's Pretrial
`Disclosures due
`Defendant's 30-day Trial Period
`2/18/2014
`Ends
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`operation of Trademark Rule 2.116(a).
`
`12/20/2013
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`1/4/2014
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`
`
`4
`
`

`
`Opposition No. 91207982
`
`
`Plaintiff's Rebuttal
`Disclosures due
`Plaintiff's 15-day Rebuttal
`Period Ends
`
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`3/5/2014
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`4/4/2014
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`In each instance, a copy of the transcript of testimony
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`together with copies of documentary exhibits, must be served
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`on the adverse party within thirty days after completion of
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`taking of testimony. Trademark Rule 2.125.
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`Briefs shall be filed in accordance with Trademark
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`Rules 2.128(a) and (b). An oral hearing will be set only
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`upon request filed as provided by Trademark Rule 2.129.
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`5

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