Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`
`ESTTA Tracking number:
`
`ESTTA1049281
`
`Filing date:
`
`04/15/2020
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding
`
`91240135
`
`Party
`
`Correspondence
`Address
`
`Plaintiff
`Savile Investments Pty. Ltd.
`
`MATTHEW J. DOWD
`DOWD SCHEFFEL PLLC
`1717 PENNSYLVANIA AVENUE, NW, SUITE 1025,
`WASHINGTON, D.C., DC 20006
`UNITED STATES
`mdowd@dowdscheffel.com, service@hucknutrition.com
`(202) 559-9175
`
`Submission
`
`Filer's Name
`
`Filer's email
`
`Signature
`
`Date
`
`Motion to Extend
`
`Matthew J. Dowd
`
`mdowd@dowdscheffel.com
`
`/Matthew J. Dowd/
`
`04/15/2020
`
`Attachments
`
`Motion for Extension.pdf(279655 bytes )
`
`
`
`ESTTA Tracking number:
`
`ESTTA1049281
`
`Filing date:
`
`04/15/2020
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding
`
`91240135
`
`Party
`
`Correspondence
`Address
`
`Plaintiff
`Savile Investments Pty. Ltd.
`
`MATTHEW J. DOWD
`DOWD SCHEFFEL PLLC
`1717 PENNSYLVANIA AVENUE, NW, SUITE 1025,
`WASHINGTON, D.C., DC 20006
`UNITED STATES
`mdowd@dowdscheffel.com, service@hucknutrition.com
`(202) 559-9175
`
`Submission
`
`Filer's Name
`
`Filer's email
`
`Signature
`
`Date
`
`Motion to Extend
`
`Matthew J. Dowd
`
`mdowd@dowdscheffel.com
`
`/Matthew J. Dowd/
`
`04/15/2020
`
`Attachments
`
`Motion for Extension.pdf(279655 bytes )
`
`
`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`
`
`
`
`
`
`
`
`
` Proceeding No. 91240135
`
`
`
`
`
`
` )
`
`
`)
`)
`)
`)
`)
`)
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`) )
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`
`
`In re Serial No. 87594452 for HUCK
`
`
`_______________________________________
`
`Huck Doll LLC,
` Applicant,
`
` v.
`
`Savile Investments Pty. Ltd.,
`
` Opposer.
`
`_______________________________________
`
`
`
`
`
`
`
`OPPOSER’S MOTION FOR EXTENSION OF TIME
`
`AND TO RESET TRIAL DATES
`
`Pursuant to Federal Rule of Civil Procedure 6(b) and 15(a), 37 C.F.R. § 2.121, and TBMP
`
`§ 509, Opposer moves to request an extension of time and to reset the trial dates. Based on the
`
`extraordinary circumstances created by the current coronavirus outbreak, Opposer is seeking a
`
`45-day extension and a concomitant modification of the pending trial dates.
`
`“A motion to extend must set forth with particularity the facts said to constitute good cause
`
`for the requested extension; mere conclusory allegations lacking in factual detail are not
`
`sufficient.” TMBP § 509.01(a); see also Societa Per Azioni Chianti Ruffino Esportazione Vinicola
`
`Toscana v. Colli Spolentini Spoletoducali SCRL, 59 USPQ2d 1383, 1384 (TTAB 2001)
`
`(“Opposer’s counsel, in his declaration, has set forth the facts relating to his other litigation matters
`
`in sufficient detail to warrant a finding that good cause exists for at least a limited extension of
`
`opposer’s testimony period”).
`
`
`
`1
`
`
`
`
`
`
`
`“Moreover, a party moving to extend time must demonstrate that the requested extension
`
`of time is not necessitated by the party’s own lack of diligence or unreasonable delay in taking the
`
`required action during the time previously allotted therefor.” TBMP § 509.01(a); see, e.g., Trans-
`
`High Corp. v. JFC Tobacco Corp., 127 USPQ2d 1175, 1176-77 (TTAB 2018) (finding good cause
`
`to extend close of discovery even though extension effectively reopened the time to serve
`
`discovery).
`
`With respect to the present case, the international, national, and local communities are
`
`experiencing a global pandemic. See, e.g., U.S. Patent & Trademark Office, USPTO Announces
`
`Extension of Certain Patent and Trademark-Related Timing Deadlines under the Coronavirus Aid,
`
`Relief, and Economic Security Act (Mar. 31, 2020)1; U.S. Patent & Trademark Office, Notice of
`
`Waiver of Trademark-Related Timing Deadlines under the Coronavirus Aid, Relief, and Economic
`
`Security Act (Mar. 31, 2020)2.
`
`Given these extraordinary circumstances, counsel for Opposer has been adversely impacted
`
`in undertaking various tasks, including general business operations. The impact on Opposer’s
`
`counsel is exacerbated by the declared public health emergency impacting Washington, D.C. and
`
`the National Capital Region. See Mayor’s Order 2020-0045 Declaration of Public Emergency:
`
`Coronavirus (COVID-19), District of Columbia (Mar. 11, 2020)3; Mayor’s Order 2020-0046
`
`Declaration of Public Health Emergency: Coronavirus (COVID-19), District of Columbia (Mar.
`
`
`1 https://www.uspto.gov/about-us/news-updates/uspto-announces-extension-certain-patent-and-
`trademark-related-timing.
`2 https://www.uspto.gov/sites/default/files/documents/TM-Notice-CARES-Act.pdf.
`3
`https://mayor.dc.gov/sites/default/files/dc/sites/mayormb/release_content/attachments/MO.Decla
`rationofPublicEmergency03.11.20.pdf
`
`
`
`2
`
`
`
`
`
`
`
`11, 2020)4; Mayor’s Order 2020-0050, Extensions of Public Emergency and Public Health
`
`Emergency: Coronavirus (COVID-19), District of Columbia (Mar. 20, 2020)5.
`
`Undersigned counsel submits a declaration in support of the motion. See attached
`
`Declaration of Matthew J. Dowd (“Dowd Decl.”). The declaration presents additional facts
`
`establishing that good cause exists for the requested extension. See Dowd Decl. ¶¶ 3-8.
`
`The current trial schedule is set as follows:
`
`EVENT
`
`DATE
`
`Expert Disclosures Due
`
`March 31, 2020
`
`Discovery Closes
`
`April 20, 2020
`
`Plaintiff’s Pretrial Disclosures Due
`
`June 14, 2020
`
`Plaintiff’s 30-day Trial Period Ends
`
`July 29, 2020
`
`Defendant’s Pretrial Disclosures Due
`
`August 13, 2020
`
`Defendant’s 30-day Trial Period Ends
`
`September 27, 2020
`
`Plaintiff’s Rebuttal Disclosures Due
`
`October 12, 2020
`
`Plaintiff’s 15-day Rebuttal Period Ends
`
`November 11, 2020
`
`BRIEFS SHALL BE DUE AS FOLLOWS:
`
`
`
`Plaintiff’s Main Brief Due
`
`January 10, 2021
`
`Defendant’s Main Brief Due
`
`February 9, 2021
`
`Plaintiff’s Reply Brief Due
`
`February 24, 2021
`
`
`
`
`
`4
`https://mayor.dc.gov/sites/default/files/dc/sites/mayormb/release_content/attachments/MO.Decla
`rationofPublicHealthEmergency03.11.20.pdf
`5 https://mayor.dc.gov/sites/default/files/u23/Mayor%60s%20%20Order%202020-50.pdf.
`
`
`
`3
`
`
`
`
`
`
`
`If the motion is granted, the revised trial dates will be as follows:
`
`EVENT
`
`DATE
`
`Expert Disclosures Due
`
`Discovery Closes
`
`May 15, 2020
`
`June 4, 2020
`
`Plaintiff’s Pretrial Disclosures Due
`
`July 29, 2020
`
`Plaintiff’s 30-day Trial Period Ends
`
`September 12, 2020
`
`Defendant’s Pretrial Disclosures Due
`
`September 28, 2020
`
`Defendant’s 30-day Trial Period Ends
`
`November 11, 2020
`
`Plaintiff’s Rebuttal Disclosures Due
`
`November 27, 2020
`
`Plaintiff’s 15-day Rebuttal Period Ends
`
`December 26, 2020
`
`BRIEFS SHALL BE DUE AS FOLLOWS:
`
`
`
`Plaintiff’s Main Brief Due
`
`February 24, 2021
`
`Defendant’s Main Brief Due
`
`March 26, 2021
`
`Plaintiff’s Reply Brief Due
`
`April 10, 2021
`
`
`
`Applicant respectfully submits that good cause exists for the requested extension, as set
`
`forth in the attached declaration. The impact of the current business shutdown, the difficulty of
`
`coordinating during the pandemic crisis, and the overall collateral consequences of the situation
`
`establish good cause for the requested extension. See Dowd Decl. ¶¶ 3-8.
`
`To the extent that excusable neglect is necessary to reset any of the deadlines, Opposer
`
`submits that excusable neglect has been shown. See TBMP 509.01(b)(1) (“The movant must show
`
`that its failure to act during the time previously allotted therefor was the result of excusable
`
`neglect.” (citing Fed. R. Civ. P. 6(b)(1)(B))). Here, given the overall circumstances and given
`
`
`
`4
`
`
`
`
`
`
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`other previous commitments of and limitations on Opposer’s counsel, any neglect in satisfying
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`any deadlines is certainly excusable.
`
`Undersigned counsel has conferred by e-mail with counsel for Applicant. Counsel for
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`Applicant has stated that, while he would not oppose a stay of the proceedings, he does oppose the
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`requested 45-day extension of time. Dowd Decl. ¶¶ 10-11. Counsel for Applicant further stated
`
`that “COVID-19 may be grounds for a suspension, but it is not a ground to re-argue the motion,
`
`and that Opposer “should have made a motion for reconsideration.” Dowd Decl. ¶ 11.
`
`Applicant’s position that COVID-19 is a basis for suspension but not for an extension is
`
`difficult to understand. In any event, Applicant’s position lacks merit, as the Director of the PTO
`
`has recognized the need to grant blanket extensions for certain deadlines in view of the pandemic.
`
`See supra. The particularized and limited extension is reasonable and is supported by good cause.
`
`Additionally, Opposer disagrees with Applicant’s assertion that “this motion has already
`
`been made and declined.” Applicant’s counsel appears to be referring to Opposer’s request for an
`
`extension that was made in connection with Opposer’s motion to compel. The present motion is
`
`clearly a new motion being made based on the radically changed circumstances in light of the
`
`global pandemic and other commitments of counsel. Moreover, the present motion for an
`
`extension is the first one being made since undersigned counsel appeared in the matter to represent
`
`Opposer.
`
`Finally, Applicant’s counsel did not identify any undue prejudice that would be attributable
`
`to the requested stay. Indeed, given that Applicant has not objection to a complete stay, the
`
`requested 45-day extension could not be reasonably be deemed prejudicial.
`
`
`
`5
`
`
`
`
`
`
`
`In conclusion, Opposer submits that the foregoing motion for a 45-day extension is
`
`supported by good cause and, if necessary, excusable neglect and that the trial deadlines should be
`
`reset as proposed.
`
`
`
`Dated: April 15, 2020
`
`By: /s/ Matthew J. Dowd
`Matthew Dowd
`Dowd Scheffel PLLC
`1717 Pennsylvania Avenue, NW,
`Suite 1025
`Washington, D.C. 20006
`mdowd@dowdscheffel.com
`(202) 559-9175
`
`Counsel for Opposer
`
`
`
`
`
`
`
`6
`
`
`
`
`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`
`
`
`
`
` Proceeding No. 91240135
`
`
`
`
`
`
` )
`
`
`)
`)
`)
`)
`)
`)
`)
`
`) )
`
`
`)
`
`
`
`In re Serial No. 87594452 for HUCK
`
`
`_______________________________________
`
`Huck Doll LLC,
` Applicant,
`
` v.
`
`Savile Investments Pty. Ltd.,
`
` Opposer.
`
`_______________________________________
`
`
`
`
`
`
`
`DECLARATION OF MATTHEW J. DOWD IN SUPPORT OF OPPOSER’S MOTION
`
`FOR AN EXTENSION OF TIME AND TO RESET THE TRIAL DATES
`
`
`
`I, Matthew J. Dowd, declare as follows:
`
`1. I am counsel of record for Opposer Savile Investments Pty. Ltd.
`
`2. I have knowledge of the facts set forth herein and in Opposer’s Motion for an Extension
`
`of Time and to Reset the Trial Dates (“Motion”). I submit this Declaration in support of the
`
`Motion.
`
`3. I am a founder and managing partner of Dowd Scheffel PLLC. Our firm is a small firm
`
`with two attorneys and two part-time employees. Our firm is located in Washington, D.C.
`
`4. Our firm is subject to numerous operating restrictions in view of the ongoing pandemic.
`
`5. These restrictions include those set forth in the following orders from the government of
`
`the District of Columbia: See Mayor’s Order 2020-0045 Declaration of Public Emergency:
`
`
`
`
`
`
`
`Coronavirus (COVID-19), District of Columbia (Mar. 11, 2020)1; Mayor’s Order 2020-0046
`
`Declaration of Public Health Emergency: Coronavirus (COVID-19), District of Columbia (Mar.
`
`11, 2020)2; Mayor’s Order 2020-0050, Extensions of Public Emergency and Public Health
`
`Emergency: Coronavirus (COVID-19), District of Columbia (Mar. 20, 2020)3.
`
`6. The current business and societal situation has made it extremely difficult to conduct
`
`business and provide legal advice to clients, including Opposer, in the usually prompt fashion.
`
`Moreover, to the extent that my law firm partner and I are working remotely, this arrangement
`
`adds further hurdles to workflow (not to mention having to address issues with children who are
`
`now effectively being homeschooled).
`
`7. Additionally, it is extremely difficult to secure the prompt services of expert witnesses
`
`that may be needed in the current Opposition proceeding.
`
`8. Opposer is located in Australia, and the time difference between Australia and
`
`Washington, D.C. adds further complications to the situation. And I understand that Australian
`
`authorities are imposing strict restrictions on activities—so much so that merely posting
`
`photographs online risks an adverse reaction by Australian law enforcement. See Sam Raskin,
`
`Couple Mistakenly Fined for Posting Old Vacation Photos During Coronavirus Lockdown, N.Y.
`
`Post, Apr. 14, 2020.4
`
`
`
`1
`https://mayor.dc.gov/sites/default/files/dc/sites/mayormb/release_content/attachments/MO.Decla
`rationofPublicEmergency03.11.20.pdf
`2
`https://mayor.dc.gov/sites/default/files/dc/sites/mayormb/release_content/attachments/MO.Decla
`rationofPublicHealthEmergency03.11.20.pdf
`3 https://mayor.dc.gov/sites/default/files/u23/Mayor%60s%20%20Order%202020-50.pdf.
`4
`https://nypost.com/2020/04/14/couple-fined-for-posting-old-photos-during-coronavirus-
`lockdown/
`
`
`
`
`
`
`
`9. To adequately represent Opposer in the current proceeding and to adequately develop
`
`the necessary record so that the Trial Trademark and Appeal Board can make a reasoned decision
`
`on a complete and accurate assessment of the law and facts, Opposer is moving for a 45-day
`
`extension of time and to request a resetting of the trial dates. If the request is granted, the new trial
`
`dates would be as set forth in the Motion.
`
`10. To ascertain if Applicant would consent to the requested extension, I emailed counsel
`
`for the Applicant, Paul W. Reidl. A copy of the email exchange is attached to this Declaration.
`
`11. Applicant’s counsel stated that, while he would not oppose a stay of the proceedings,
`
`he does oppose the requested 45-day extension of time. Counsel for Applicant further stated that
`
`“COVID-19 may be grounds for a suspension, but it is not a ground to re-argue the motion,” and
`
`that Opposer “should have made a motion for reconsideration.” See attached.
`
`12. In addition to the above circumstances, counsel for Opposer has been involved with a
`
`number of other work obligations with pressing deadlines. For instance, undersigned counsel is
`
`representing the defendant in Syngenta Crop Protection, LLC v. Atticus, LLC, No. 5:19-cv-00509-
`
`D (E.D.N.C.), a patent infringement case involving methods of synthesizing the fungicide
`
`azoxystrobin. The district court in that case recently denied the defendant’s motion to dismiss and
`
`an answer to the complaint is now due April 21, 2020. Undersigned counsel is also counsel of
`
`record for the petitioners in Estate of Thomas Steinbeck, et al. v. Kaffaga, No. 19-1181 (S.Ct.), a
`
`case involving copyrights of the famous author John Steinbeck.5 Amicus briefs in support of the
`
`petition for a writ of certiorari are due April 29, 2020.
`
`
`5 See Eriq Gardner, ‘Grapes of Wrath’ Movie Adaptation Dispute Headed to Supreme Court,
`Hollywood Reporter, Jan. 3, 2020, https://www.hollywoodreporter.com/thr-esq/grapes-wrath-
`movie-adaptation-dispute-headed-supreme-court-1266130.
`
`
`
`
`
`
`
`12. Based on foregoing and the totality of the circumstances, I submit that good cause and
`
`excusable neglect are established for the requested extension and resetting of trial dates.
`
` I
`
` declare under penalty of perjury that the foregoing is true and correct. Executed on April
`
`15, 2020.
`
`Dated: April 15, 2020
`
`/s/ Matthew J. Dowd
`Matthew Dowd
`Dowd Scheffel PLLC
`1717 Pennsylvania Avenue, NW,
`Suite 1025
`Washington, D.C. 20006
`mdowd@dowdscheffel.com
`(202) 559-9175
`
`Counsel for Opposer
`
`
`
`
`
`
`
`
`
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`
`
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`
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`ATTACHMENT
`ATTACHMENT
`
`
`
`
`
`Subject: RE: Savile Investments Pty. Ltd. v. Huck Doll LLC, Opp'n No. 91240135
`
`Date: Wednesday, April 1, 2020 at 7:02:25 PM Eastern Daylight Time
`
`From:
`
`Paul Reidl
`
`To:
`
`MaPhew Dowd
`
`And I will point out that this moRon has already been made and declined. COVID-19 may be grounds for a
`suspension, but it is not a ground to re-argue the moRon. You should have made a moRon for
`reconsideraRon.
`
`Paul
`
`
`From: MaPhew Dowd <mdowd@dowdscheffel.com>
`Sent: Wednesday, April 01, 2020 4:00 PM
`To: Paul Reidl <reidl@sbcglobal.net>
`Subject: Re: Savile Investments Pty. Ltd. v. Huck Doll LLC, Opp'n No. 91240135
`
`Paul,
`
`Thank you for the reply. We do not think a suspension is necessary. We will file our moRon accordingly and
`note your posiRon.
`
`Best,
`MaP
`
`MaPhew J. Dowd
`Dowd Scheffel PLLC
`1717 Pennsylvania Avenue, NW
`Suite 1025
`Washington, D.C. 20006
`Direct: (202) 573-3853
`Office: (202) 559-9175
`mdowd@dowdscheffel.com
`hPp://www.dowdscheffel.com
`hPp://www.linkedin.com/in/maPhewdowd
`
`
`
`From: Paul Reidl <reidl@sbcglobal.net>
`Date: Wednesday, April 1, 2020 at 6:58 PM
`To: MaPhew Dowd <mdowd@dowdscheffel.com>
`Subject: Re: Savile Investments Pty. Ltd. v. Huck Doll LLC, Opp'n No. 91240135
`
`Matthew,
`
` I
`
` will agree to suspend due to COVID-19, not to extend. An extension is what your client wanted when he filed his
`motion to compel and it was not granted. He never gave a good reason for it then, and you have not given me one
`now. So let's simply stipulate to suspend due to COVID-19.
`
`Paul
`
`On Wednesday, April 1, 2020, 3:42:04 PM PDT, Matthew Dowd <mdowd@dowdscheffel.com> wrote:
`
`Page 1 of 2
`
`
`
`
`
`
`Paul,
`
`
`
`We are in receipt of Huck Doll’s supplemental discovery responses, sent by email on March 12,
`2020. We will respond to that email separately.
`
`
`
`We are writing to ask whether Huck Doll will oppose a request for a 45-day extension of time to the
`current trial dates. Given the current situation involving the coronavirus pandemic, additional time
`is necessary to complete discovery and other aspects of the proceeding.
`
`Please let us know by close of business tomorrow, Thursday, April 2, 2020, whether Huck will agree
`to or oppose this request. Savile intends to file its motion by Friday, April 3.
`
`Best,
`
`
`
`Matthew J. Dowd
`
`Dowd Scheffel PLLC
`
`1717 Pennsylvania Avenue, NW
`
`Suite 1025
`
`Washington, D.C. 20006
`
`Direct: (202) 573-3853
`
`Office: (202) 559-9175
`
`mdowd@dowdscheffel.com
`
`http://www.dowdscheffel.com
`
`http://www.linkedin.com/in/matthewdowd
`
`Page 2 of 2
`
`
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`
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`
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`CERTIFICATE OF SERVICE
`
`I hereby certify that, on this 15th day of April 2020, the foregoing document has been filed
`
`and served on Applicant’s counsel via email as follows:
`
`Paul W. Reidl
`Law Office of Paul W. Reidl
`285 Troon Way
`Half Moon Bay, California 94019
`paul@reidllaw.com
`Phone: (650) 560-8530
`
`
`
`
`
`
`
`By: /s/ Matthew J. Dowd
`Matthew Dowd
`Dowd Scheffel PLLC
`1717 Pennsylvania Avenue, NW,
`Suite 1025
`Washington, D.C. 20006
`mdowd@dowdscheffel.com
`(202) 559-9175
`
`Counsel for Opposer
`
`
`
`
`
`
`
`
`
`
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