Trademark Trial and Appeal Board Electronic Filing System. https://estta.uspto.gov
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`ESTTA Tracking number:
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`ESTTA1165647
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`Filing date:
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`10/13/2021
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`Proceeding
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`91240135
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`Party
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`Correspondence
`Address
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`Submission
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`Filer's Name
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`Filer's email
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`Signature
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`Date
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`Defendant
`Huck Doll LLC
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`PAUL W REIDL
`LAW OFFICE OF PAUL W REIDL
`25 PINEHURST LANE
`HALF MOON BAY, CA 94019
`UNITED STATES
`Primary Email: paul@reidllaw.com
`paul@reidllaw.com
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`Opposition/Response to Motion
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`Paul W. Reidl
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`paul@reidllaw.com
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`/pwr/
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`10/13/2021
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`Attachments
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`Response to Motion for Extension.pdf(180946 bytes )
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`UNITED STATE PATENT AND TRADEMARK OFFICE
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`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`Application No. 87/594,452
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`Trademark: HUCK
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`Goods: Granola-based snack bars in Class 30
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`______________________________________
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` ) Opposition No. 91240135
`SAVILE INVESTMENTS PTY. LTD.,
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`Opposer,
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` ) RESPONSE TO MOTION TO EXTEND
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`v.
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` ) THE SCHEDULE
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`HUCK DOLL, LLC,
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`Applicant.
`______________________________________)
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`The motion should be denied because, when put into its proper context, Opposer has not shown
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`good cause for the continued delay. This motion is simply another manifestation of a pattern of
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`ignoring the case and serving up 11th hour excuses that has gone on for years.
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`This opposition was initiated in March 2018. (1 TTABVUE). In May 2019 – nearly 2 ½ years
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`ago – Opposer approached Applicant’s counsel and requested a thirty-day extension of time because it
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`needed more time to meet and confer on discovery issues. Applicant consented to the extension, and
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`it was granted. (16 TTABVUE.) Motions practice followed, the proceedings were suspended (21
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`TTABVUE), and ultimately the Board reset the schedule leaving sixty (60) days to complete discovery.
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`(28 TTABVUE.) Under this order, discovery closed on April 30, 2020.
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`On April, 15, 2020, Opposer sought a 45-day extension of the discovery period, claiming that
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`“Opposer has been adversely impacted in undertaking various tasks, including general business
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`APPLICANT’S OPPOSITION TO OPPOSER’S MOTION TO EXTEND THE SCHEDULE
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`operations.” (28 TTABVUE 2.) But despite these allegedly debilitating impacts which allegedly
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`prevented Opposer from completing discovery in a timely way and otherwise working on the case, it
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`found time to write and file a lengthy Motion to Amend and an Amended Notice of Opposition shortly
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`thereafter. (32 TTABVUE). This resulted in another suspension of the proceeding. (33 TTABVUE).
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`The Board then issued an order closing discovery on February 18, 2021. (35 TTTABVUE). This Order
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`gave Opposer a second, full 6-month discovery period. (Id.). That was very generous of the Board.
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`Despite the Board’s generosity, Opposer took no discovery during five of those six months.
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`Nothing. Not a thing.
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`On January 18, 2021 – one month before the close of the discovery period, it served discovery
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`requests. The next day, it filed a motion to compel Applicant to supplement its initial disclosures and
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`to verify its interrogatory responses. (37 TTABVUE.) This resulted in another suspension of the
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`proceeding. (38 TTABVUE). The Board agreed with Applicant and denied the motion on May 25,
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`2021. The Board held that the demand for supplementing the initial disclosures was untimely under
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`the rules and that the Opposer “had not made a good faith effort” to meet and confer prior to filing the
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`motion to have the interrogatory responses verified. (41 TTABVUE). While the motion was
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`unsuccessful, it achieved the result of further delaying the resolution of the case by many months. The
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`Board reset the schedule to give the parties one month to complete discovery, i.e., by June 25, 2021.
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`In the meantime, Opposer disclosed that all it needed to do in order to complete discovery was to
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`depose the Applicant, who consists of one individual, its managing member.
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`What is involved in a deposition? A day of prep and at most 7 hours of taking the deposition.
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`This is not a summary judgment motion that takes many hours to prepare; it is a simple deposition.
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`And, in this case, the questions are very simple.
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`Thereafter, Opposer settled-in to a by-now familiar pattern:
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`//
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`APPLICANT’S OPPOSITION TO OPPOSER’S MOTION TO EXTEND THE SCHEDULE
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`•
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`In June, it did nothing until the last minute and then it acted; it asked Applicant for
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`another extension which Applicant granted out of professional courtesy. (42
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`TTABVUE.)
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`• Opposer did it again in July. (44 TTABVUE). Thereafter, Opposer demanded that
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`Applicant make itself available for a deposition on 24-48 hours’ notice, which is by
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`definition unreasonable.1 Applicant proposed alternate dates but there was no response
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`from Opposer until -- no surprise here -- immediately before the close of discovery,
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`when it again claimed that COVID and the firm’s work schedule made it impossible for
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`Opposer to meet the discovery deadline. Applicant again consented to the extension out
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`of professional courtesy.
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`It happened again in August; same reasons given. Again, Opposer took no actions
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`during that thirty (30) day period to schedule the deposition, and requested the extension
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`shortly before the looming deadline. Applicant again gave its consent out of
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`professional courtesy, but its patience was wearing thin. (46 TTABVUE).
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`It happened again in September. The day before the close of the discovery period,
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`Opposer said that it needed another extension because counsel was not feeling well
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`and the firm had a trial in a few weeks. This time, Applicant did not consent. At some
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`point, one has to conclude that one’s professional courtesy in granting extensions has
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`been abused and that you are being played for the fool to the disadvantage of your client.
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`This message was communicated to Opposer, who was upset that Applicant’s counsel
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`was not continuing to agree to extensions. As counsel told Opposer:
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`I am by nature an agreeable guy which is why I agreed to the prior extensions,
`but at some point it starts to look like I am being played because you have had
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`This assumes unrealistically that Opposer could line-up a court reporter to hear the testimony
`on such short notice.
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`APPLICANT’S OPPOSITION TO OPPOSER’S MOTION TO EXTEND THE SCHEDULE
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`since May to take a Zoom deposition. That's a day or two of prep and a day
`on a Zoom call. My guess is that you have not even done the prep for the
`deposition. I am well aware of the disruptions to business over the last 18
`months, mine included as well as my client's, but we have gotten through it as
`have others. I have to do what is right by my client by denying your request
`even though that will result in more motion practice at the Board.
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`It is readily apparent, when placed in this context, that Opposer has not been diligent in pursuing
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`its opposition It has waited until the last minute on multiple occasions before filing a motion or
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`requesting an extension. Since May 25, 2021 – four months - the only discovery Opposer needed was
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`the deposition of Applicant. It is inconceivable that Opposer could not have been able to find a few
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`hours during those four months – or 86 business days-- to prepare for and take Applicant’s deposition.
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`To the contrary, Opposer’s conduct reflects that this case is not a priority, it has ignored the case until
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`a deadline popped-up on its docket, and it has found ways to delay the resolution of this matter and
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`kick-the-can down the road dating back to April 2020. This includes filing a motion to compel that the
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`Board summarily denied. (41 TTABVUE). And at that time (April 2020); it gave to the Applicant, and
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`to the Board, the same excuse it is using now: the pandemic and work load. (28 TTABVUE.)
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`That excuse should ring hollow in light of what has happened in this case. Since April 2020,
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`the profession has adapted to Zoom depositions and working at home. Opposer uses almost verbatim
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`the same justification it used in April 2020: “Counsel for Opposer has been adversely impacted in
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`undertaking various tasks, including general business operations.” (Compare 48 TTABVUE 2 with 29
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`TTABVUE 2). Zoom depositions, hearings and civil trials have become de rigueur; the undersigned
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`has participated in many of them as an expert witness or counsel for a party. Court schedules change
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`APPLICANT’S OPPOSITION TO OPPOSER’S MOTION TO EXTEND THE SCHEDULE
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`all the time, but no responsible lawyer waits until the last minute to attend to critical deadlines, hoping
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`that opposing counsel or the Court/Board will grant an extension.2
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`The undersigned is glad that Opposer’s counsel is busy; so is the undersigned, who is currently
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`handling three (3) Federal Court trademark infringement cases, a Federal court patent infringement
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`case, and six (6) TTAB proceedings without a partner or associates (unlike Opposer’s counsel.)
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`Docket management and meeting deadlines is a fundamental part of managing a litigation practice.
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`Waiting until the last minute and then requesting an extension or filing a motion because you have run
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`out of time does not reflect diligence and does not constitute good cause for another extension. It is
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`clear that Opposer’s counsel has not been diligent or even tried to meet the Board’s deadlines for many,
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`many months. Opposer has had two six-month discovery periods and numerous extensions in which
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`to complete discovery by taking a single deposition, but it still has not done so.
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`And we should be clear here: while Opposer’s motion cites all the work counsel has to do in
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`October for a trial in October, that is irrelevant. (48 TTABVUE 3). That does not explain why the
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`deposition could not have been taken in June, July, August or September. Why couldn’t Opposer have
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`reached out to Applicant after the August continuance and scheduled the deposition? Surely it was
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`prepared for that trial when it was continued in August, and Opposer’s counsel had time on his hands
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`because the trial was continued. Opposer also says that the firm had a hearing in July that required a
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`lot of work. (Id. at 4). But what does that have to do with June, August and September? And they had
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`a case that required a lot of work in August for an oral argument on September 2. (Id at 4.) Again,
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`fine, but that does not explain why they could not have taken the deposition during the rest of the month
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`Similarly, the fact that Australia has COVID lockdowns or that Opposer’s business has been
`impacted has nothing to do with the taking of Applicant’s deposition. Opposer’s counsel can
`communicate with his Australian client just like the undersigned does with his Australian clients: Zoom
`calls, telephone or e-mail. Even though they are locked-down, they can still participate in the case and
`other legal matters from home. The argument is a red herring.
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`or beforehand. And Opposer’s counsel also claims to have a case that is in discovery. (Id. at 3.) That
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`is not an excuse:
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`THIS CASE WAS IN DISCOVERY, TOO!
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`Opposer’s counsel should have given the same attention to this case as the other case, but they
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`did not. They simply assumed that Applicant or the Board would give them a pass and continue
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`granting extensions. That is undoubtedly why Opposer was so shocked when Applicant said “no”
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`several weeks ago. The implicit suggestion that a firm can only do discovery in one case at a time is
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`just wrong.
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`In short, there is no good explanation offered why Opposer could not have completed the
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`deposition in June, July, August or September. None. At bottom, this is motion is a smokescreen meant
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`to obfuscate the obvious fact that Opposer has not been diligent and there is no good reason why that
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`single deposition could not have been taken months ago. None.
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`Both Applicant and the Board have been very accommodating of Opposer’s lack of diligence.
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`It is time to say “enough is enough” and put this proceeding on track for resolution at trial.
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`For all of these reasons, good cause has not been shown and the motion should be denied.
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`Being warned of the penalties of perjury under the laws of the United States, the hereby swears
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`and affirms that he has personal knowledge of the fact stated herein and that they are true and correct
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`to the best of his knowledge and belief.
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`Dated: October 13, 2021
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`Respectfully submitted,
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`LAW OFFICE OF PAUL W. REIDL
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`/s/ Paul W. Reidl
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`Paul W. Reidl (CA. Bar. No. 155221)
`25 Pinehurst Lane
`Half Moon Bay, CA 94019
`(650) 560-8530
`paul@reidllaw.com
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`APPLICANT’S OPPOSITION TO OPPOSER’S MOTION TO EXTEND THE SCHEDULE
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`PROOF OF SERVICE
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`On October 13, 2021, I caused to be served the foregoing document described as follows:
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`APPLICANT’S OPPOSITION TO OPPOSER”S MOTION TO EXTEND THE SCHEDULE
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`on Respondent by placing a true copy thereof in an e-mail to:
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`MATTHEW J. DOWD
`DOWD SCHEFFEL PLLC
`1717 PENNSYLVANIA AVENUE, NW, SUITE 1025,
`WASHINGTON, D.C., DC 20006
`UNITED STATES
`mdowd@dowdscheffel.com, service@hucknutrition.co
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`Executed on July 23, 2020, in Half Moon Bay, California.
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`_______________________________
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`APPLICANT’S OPPOSITION TO OPPOSER’S MOTION TO EXTEND THE SCHEDULE
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