`
`
`
`
`
`
`
`
`al
`
`
`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
`
`
`
`
`
`
`
`
`
`
`
`Mailed: September 1, 2017
`
`Opposition No. 91232896
`
`Boy Scouts of America
`
`
`v.
`
`CCG Creative, LLC
`
`
`
`By the Trademark Trial and Appeal Board:
`
`
`
`On June 1, 2017, the Board allowed Applicant time to file an amended
`
`answer that complies with Fed. R. Civ. P. 8(b). On June 27, 2017, Applicant filed its
`
`amended answer.
`
` This case now comes up for consideration of Opposer’s motion (filed July 13,
`
`2017) to strike Applicant’s amended answer and for entry of default judgment. In
`
`the alternative, Opposer moves to deem admitted all the unanswered allegations in
`
`the amended answer. On July 13, 2017, Applicant filed a brief in response and
`
`another amended answer to the notice of opposition. Opposer filed its brief in reply
`
`on July 28, 2017 which the Board has considered. Applicant’s July 30, 2017 filing is
`
`a surreply and will not be considered. See Trademark Rule 2.127(a).
`
`
`
`In support of its motion, Opposer argues that Applicant “has failed
`
`repeatedly to file a timely, rule-compliant answer to Opposer’s Notice of
`
`Opposition…despite the Board’s clear and succinct instructions on how to do so.”
`
`
`
`
`
`Opposition No. 91232896
`
`
`
`To the extent Applicant’s July 13, 2017 version of its answer is its most
`
`recent and is the only version of Applicant’s answer that actually answers all 38
`
`paragraphs of the notice of opposition, the Board exercises its discretion in the
`
`interest of judicial efficiency and will consider the motion with respect to this
`
`version of the answer only.1 Opposer’s motion to strike the June 27, 2017 answer is
`
`moot.
`
`In considering whether to strike the July 13, 2017 answer and enter default
`
`judgment against Applicant, the standard is the Fed. R. Civ. P. 55(c) standard, i.e.,
`
`whether the defendant has shown good cause why default judgment should not be
`
`entered against it. As a general rule, good cause will be found where the defendant’s
`
`delay has not been willful or in bad faith, when prejudice to the plaintiff is lacking,
`
`and where defendant has a meritorious defense. See Fred Hayman Beverly Hills,
`
`Inc. v. Jacques Bernier Inc., 21 USPQ2d 1556 (TTAB 1991). The determination of
`
`whether default judgment should be entered against a party lies within the Board’s
`
`sound discretion. In exercising that discretion, the Board is mindful of its policy to
`
`decide cases on their merits where possible and therefore only reluctantly enters
`
`judgment by default for failure to timely answer. See TBMP Section 312.02.
`
`Inasmuch as it appears that Applicant’s failure to timely file an answer was
`
`caused by its apparent confusion on how to properly answer the notice of opposition
`
`and because it has now managed to answer all 38 paragraphs of the notice of
`
`opposition, the Board finds that Applicant has shown good cause why default
`
`judgment should not be entered against it. In particular, Applicant’s failure to
`
`1 Opposer addresses this version of the answer in its reply brief.
`
` 2
`
`
`
`Opposition No. 91232896
`
`answer in a timely manner was neither willful nor in bad faith. Further, there is no
`
`evidence of any prejudice to Opposer and Applicant has set forth a meritorious
`
`defense by now setting forth a plausible response to the allegations in the
`
`complaint.
`
`In view thereof, Opposer’s motion to strike and enter default judgment
`
`against Applicant is hereby denied.2 With regard to the alternative motion to deem
`
` admitted all the unanswered allegations in the amended answer, to the extent the
`
`July 13, 2017 answer now provides responses for each paragraph of the complaint
`
`such motion is denied.
`
`
`
`Nevertheless, the Board notes that the July 13, 2017 answer fails to include a
`
`description of the capacity in which the signing individual signs, e.g., attorney for
`
`defendant, officer of defendant identified by title, partner of defendant. See TBMP
`
`Section 311.01(b). Therefore, Applicant has 10 days from the mailing date set forth
`
`in the caption of this order to identify the capacity in which the individual who
`
`signed the July 13, 2017 answer signs.
`
`The Board deems the filing of Opposer’s motion to have tolled the running of
`
`all dates herein. Dates are reset as follows:
`
`9/27/2017
`9/27/2017
`10/27/2017
`
`Deadline for Discovery Conference
`Discovery Opens
`Initial Disclosures Due
`
`2 The Board observes that the July 13, 2017 answer includes admissions, denials, and
`statements that Applicant does not have sufficient information to admit or deny certain
`allegations (which have the effect of denials as to those particular allegations). See TBMP
`Section 311.02(a). Such answer also includes amplifications (“arguments”) that will not be
`stricken because they are permitted to the extent they give Opposer fuller notice of the
`position which Applicant plans to take in defense of its right to registration. See TBMP
`Section 311.02(d).
`
`
`
` 3
`
`
`
`Opposition No. 91232896
`
`
`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 Ends
`Plaintiff's Rebuttal Disclosures Due
`Plaintiff's 15-day Rebuttal Period Ends
`
`2/24/2018
`3/26/2018
`5/10/2018
`6/24/2018
`7/9/2018
`8/23/2018
`9/7/2018
`10/7/2018
`
`
`
`In each instance, a copy of the transcript of testimony together with copies of
`
`documentary exhibits, must be served on the adverse party within thirty days after
`
`completion of the taking of testimony. Trademark Rule 2.l25.
`
`
`
`Briefs shall be filed in accordance with Trademark Rule 2.128(a) and (b). An
`
`oral hearing will be set only upon request filed as provided by Trademark Rule
`
`2.l29.
`
`
`
`
`
`* * *
`
`NOTICE: CHANGES TO THE TRADEMARK TRIAL AND APPEAL BOARD
`(“BOARD”) RULES OF PRACTICE WILL BE EFFECTIVE JANUARY 14, 2017.
`The USPTO published a Notice of Final Rulemaking in the Federal Register on
`October 7 2016, at 81 F.R. 69950. It sets forth several amendments to the rules
`that govern inter partes (oppositions, cancellations, concurrent use) and ex parte
`appeal proceedings.
`For complete information, the parties are referred to:
`• The Board’s home page on the uspto.gov website:
`http://www.uspto.gov/trademarks-application-process/trademark-trial-and-
`appeal-board-ttab
`• The final rule:
`http://www.uspto.gov/sites/default/files/documents/81%20FR%2069950.pdf
`• A chart summarizing the affected rules and changes:
`http://www.uspto.gov/sites/default/files/documents/RulesChart_01_14_17.pdf
`
`
`For all proceedings, including those already in progress on January 14, 2017,
`some of the changes are:
`
` 4
`
`
`
`Opposition No. 91232896
`
`
`• All pleadings and submissions must be filed through ESTTA. Trademark
`Rules 2.101, 2.102, 2.106, 2.111, 2.114, 2.121, 2.123, 2.126, 2.190 and 2.191.
`• Service of all papers must be by email, unless otherwise stipulated.
`Trademark Rule 2.119.
`• Response periods are no longer extended by five days for service by mail.
`Trademark Rule 2.119.
`• Deadlines for submissions to the Board that are initiated by a date of service
`are 20 days. Trademark Rule 2.119. Responses to motions for summary
`judgment remain 30 days. Similarly, deadlines for responses to discovery
`requests remain 30 days.
`• All discovery requests must be served early enough to allow for responses
`prior to the close of discovery. Trademark Rule 2.120. Duty to supplement
`discovery responses will continue after the close of discovery.
`• Motions to compel initial disclosures must be filed within 30 days after the
`deadline for serving initial disclosures. Trademark Rule 2.120.
`• Motions to compel discovery, motions to test the sufficiency of responses or
`objections, and motions for summary judgment must be filed prior to the first
`pretrial disclosure deadline. Trademark Rules 2.120 and 2.127.
`• Requests for production and requests for admission, as well as
`interrogatories, are each limited to 75. Trademark Rule 2.120.
`• Testimony may be submitted in the form of an affidavit or declaration.
`Trademark Rules 2.121, 2.123 and 2.125
`• New requirements for the submission of trial evidence and deposition
`transcripts. Trademark Rules 2.122, 2.123, and 2.125.
`
`• For proceedings filed on or after January 14, 2017, in addition to the
`changes set forth above, the Board’s notice of institution constitutes service of
`complaints. Trademark Rules 2.101 and 2.111.
`
`This is only a summary of the significant content of the Final Rule. All parties
`involved in or contemplating filing a Board proceeding, regardless of the date of
`commencement of the proceeding, should read the entire Final Rule.
`
`
`
`
` 5
`
`