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`Webster/Elgin
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`By The Board:
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`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
`General Email: TTABInfo@uspto.gov
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`May 15, 2020
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`Opposition No. 91250990
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`Monster Energy Company
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`v.
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`Interpet Limited
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`This case now comes up for consideration of the motion filed by Interpet Limited
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`(“Applicant”) for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). See 5
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`TTABVUE.1 The motion is fully briefed.
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`The Board has considered the parties’ briefs and arguments on the motion, but
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`does not repeat or discuss all of the arguments. Guess? IP Holder L.P. v. Knowluxe
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`LLC, 116 USPQ2d 2018, 2019 (TTAB 2015). For purposes of this order, the Board
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`presumes the parties’ familiarity with the pleadings and the parties’ arguments and
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`materials submitted in connection with the subject motion.
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`1 Record citations are to TTABVUE, the Board’s publicly available docket history system. See
`Turdin v. Trilobite, Ltd., 109 USPQ2d 1473, 1476 n.6 (TTAB 2014).
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`
`
`
`

`

`Opposition No. 91250990
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`I.
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`
`Background
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`Applicant seeks registration of the mark POND MONSTA (“pond” disclaimed
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`apart from the mark as shown) for use in connection with: “Vacuum cleaners for
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`ponds and aquatic environments; cleaning machines for ponds; suction nozzles for
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`vacuum cleaners adapted for ponds and aquatic environments; brushes being parts
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`of cleaning machines for ponds and for vacuum cleaners adapted for ponds and
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`aquatic environments,” in International Class 7.2
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`Monster Energy Company (“Opposer”) opposes registration of Applicant’s mark on
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`the ground of likelihood of confusion under Section 2(d) of the Trademark Act, 15
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`U.S.C. § 1052(d). Opposer alleges that, since at least 2002, it has been “engaged in
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`the development, marketing, and/or sale of energy drinks, nutritional supplements,
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`clothing, hats, bags, helmets, gloves, sports equipment, stickers, lanyards,
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`accessories, and other products under the marks MONSTER™ and MONSTER
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`ENERGY® and related marks, all containing ‘MONSTER.’” 1 TTABVUE 10, ¶ 2. See
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`also id. ¶ 3 (referring to “MONSTER line of drinks and clothing, gloves, headgear,
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`helmets, decals, bags and numerous other products.”).
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` In support of its standing and asserted claim, Opposer has pleaded ownership of
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`twelve registrations for goods in International Classes 5, 9, 16, 18, 25, and 32 for
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`marks comprising the term MONSTER in association with various terms (such as
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`ENERGY, JAVA and LO-CARB), many of which include the following “claw” design:
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`2 Application Serial No. 88210846, filed November 29, 2018, based on an allegation of use of
`the mark in commerce under Trademark Act Section 1(a), 15 U.S.C. § 1051(a). Applicant
`claims February 2, 2012 as its date of first use anywhere and date of first use in commerce.
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`
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`2
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`

`

`Opposition No. 91250990
`
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`1 TTABVUE 12-18, ¶¶ 12-23.
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`
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`Of particular relevance to Applicant’s application, Opposer alleges that, prior to
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`the filing date of Applicant’s application and claimed dates of first use, Opposer has
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`engaged in various promotional activities for its products that are co-sponsored by
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`“tool companies” (or the “tool industry”) and has licensed its marks for use on “tool
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`boxes.” Id. at 11, ¶¶ 5-8. Opposer also alleges that its MONSTER marks are famous,
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`and that it owns a family of MONSTER marks. Id. at 10, 12, ¶¶ 2, 3, 4, 11.
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`In its Answer, Applicant admits that it owns the opposed application, that there
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`are no limitations or restrictions in its application on the use of the mark for the goods
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`described therein, and that Opposer owns its pleaded registrations. 4 TTABVUE 2-4,
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`¶¶ 7-11, 15. Applicant otherwise denies the salient allegations in the notice of
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`opposition. Applicant also asserts four “affirmative defenses,” including the equitable
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`defenses of “acquiescence, estoppel or laches.” Id. at 5, ¶ 20.
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`3
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`

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`Opposition No. 91250990
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`II. Applicant’s Motion for Judgment on the Pleadings
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`A motion for judgment on the pleadings is a test solely of the undisputed facts
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`appearing in all the pleadings, supplemented by any facts of which the Board takes
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`judicial notice. See TBMP § 504.02 and cases cited therein. For purposes of the
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`motion, all well-pleaded factual allegations of the non-moving party must be accepted
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`as true, while those allegations of the moving party which have been denied (or which
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`are taken as denied, pursuant to Fed. R. Civ. P. 8(b)(6), because no responsive
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`pleading thereto is required or permitted) are deemed false. All reasonable inferences
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`from the pleadings are drawn in favor of the nonmoving party. Baroid Drilling Fluids
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`Inc. v. SunDrilling Prods., 24 USPQ2d 1048, 1049 (TTAB 1982). Judgment on the
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`pleadings may be granted only where, on the facts as deemed admitted, there is no
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`genuine issue of material fact to be resolved and the moving party is entitled to
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`judgment on the substantive merits of the controversy as a matter of law. Id.
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`A. Standing
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`Applicant moves for judgment on the pleadings on the basis that Opposer cannot
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`establish standing to bring the opposition. 5 TTABVUE 2. Applicant contends that
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`Opposer’s allegation of damage to support its claim of standing is entirely conclusory
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`because “Opposer cannot show that is has a reasonable belief that it will be damaged
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`by registration of Applicant’s Mark.” Id. at 8. Applicant argues that the marks at
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`issue and the products on which the marks are used are so dissimilar that there can
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`be “no reasonable likelihood of confusion and resulting damage to Opposer.” Id. at 7.
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`
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`4
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`

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`Opposition No. 91250990
`
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`Opposer argues in opposition that genuine issues of material fact prevent
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`judgment on the pleadings. Specifically, Opposer argues that it has pleaded sufficient
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`facts to establish that it has standing to bring the opposition under Section 2(d) of the
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`Lanham Act – specifically, facts “establishing that its family of MONSTER Marks is
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`famous, the parties’ respective marks are highly similar, the parties’ goods and
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`services are similar and/or related, and that the parties’ goods are presumed to travel
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`through the same channels of trade.” 6 TTABVUE 2.
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`Applicant’s argument that Opposer has failed to properly allege standing is
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`misplaced. Standing is a distinct issue from the merits of the grounds for opposition.
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`Jewelers Vigilance Comm., Inc. v. Ullenberg Corp., 823 F.2d 490, 2 USPQ2d 2021,
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`2024 (Fed. Cir. 1987) (in an inter partes proceeding, the standing and merits issues
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`are separate and distinct); see 3 MCCARTHY ON TRADEMARKS AND UNFAIR
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`COMPETITION § 20:49 (5th ed. Mar. 2020). Further, there is no requirement that
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`actual damage be pleaded or proved in a Board proceeding. Blackhorse v. Pro-
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`Football, Inc., 98 USPQ2d 1633, 1638 (TTAB 2011).
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`Under the Lanham Act, standing requires only that a plaintiff believe that it is
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`likely to be damaged by the registration – that is, that an opposer has a “real interest”
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`and that it is more than a “mere intermeddler.” Ritchie v. Simpson, 170 F.3d 1092,
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`50 USPQ2d 1023, 1025 (Fed. Cir. 1999). An opposer need allege only “enough factual
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`matter . . . to suggest that [a claim is plausible]” and “raise a right to relief above the
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`speculative level.” Totes-Isotoner Corp. v. United States, 594 F.3d 1346, 1354 (Fed.
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`Cir. 2010) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). Whether
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`5
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`

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`Opposition No. 91250990
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`an opposer will be able to prove its claims is a matter separate from whether opposer
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`can establish standing to file and maintain the opposition. See, e.g., Primrose
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`Retirement Cmtys, LLC v. Edward Rose Senior Living, LLC, 122 USPQ2d 1030, 1032
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`(TTAB 2016) (standing established by registration of record; 2(d) claim denied as
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`“speculative, theoretical possibility”); Rocket Trademarks Pty. Ltd. v. Phard S.p.A.,
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`98 USPQ2d 1066, 1072 (TTAB 2011) (standing established by registrations; but no
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`likelihood of confusion).
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`In this case, the Board finds that Opposer’s allegations of current ownership of
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`existing registrations for marks that include the formative term “monster” in
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`paragraphs 12-23 of the notice of opposition are sufficient for pleading that it is more
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`than a mere intermeddler and, thus, its standing to bring the proceeding. See
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`Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1844 (Fed. Cir.
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`2000); Research in Motion Ltd. v. Defining Presence Mktg. Grp., Inc., 102 USPQ2d
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`1187, 1190-91 (TTAB 2012).
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`B. Opposer’s Section 2(d) Claim
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`To the extent that Applicant’s motion can be interpreted as a motion for judgment
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`on the pleadings on the merits of Opposer’s claim under Section 2(d) of the Trademark
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`Act because “the marks are different, the products are different, and the consumers
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`are different,” 5 TTABVUE 2, Applicant has failed to point to any admissions by
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`6
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`

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`Opposition No. 91250990
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`Opposer or other undisputed material facts that would support judgment as a matter
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`of law. See Baroid Drilling Fluids, 24 USPQ2d at 1049.3
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`The Board finds that this case cannot be determined on the basis of dissimilarities
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`of the marks alone. Cf. Champagne Louis Roederer, S.A. v. Delicato Vineyards, 148
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`F.3d 1373, 47 USPQ2d 1459, 1460-61 (Fed. Cir. 1998) (“[O]ne DuPont factor may be
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`dispositive in a likelihood of confusion analysis, especially when that single factor is
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`the dissimilarity of the marks.”) (citations omitted); Ava Enters. Inc. v. P.A.C.
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`Trading Grp., Inc., 86 USPQ2d 1659 (TTAB 2008) (granting judgment on the
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`pleadings, finding BOSS AUDIOSYSTEMS and PAC BOOSTER THE PERFECT
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`SOUND entirely dissimilar). Here, Applicant’s and Opposer’s marks share variations
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`of the formative term “monster.” The addition of other terms or designs, such as
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`Applicant’s disclaimed term “pond” or Opposer’s term “energy” or its “claw” design
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`“does not necessarily eliminate the likelihood of confusion if some terms are
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`identical.” In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1260 (Fed. Cir.
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`2010) (citations omitted) (emphasis added).
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`Accepting Opposer’s well-pleaded factual allegations regarding the similarity of
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`the marks and the commercial strength of Opposer’s marks as true, and deeming, as
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`required, the allegations in Applicant’s answer false, the Board finds that genuine
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`disputes of material fact exist with regard to Opposer’s likelihood of confusion claim,
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`including the similarity or dissimilarity of the parties’ marks and the strength of
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`3 The fact that this order identifies only a few material facts that are genuinely in dispute
`should not be construed as a finding that these are necessarily the only issues that remain
`for trial.
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`7
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`

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`Opposition No. 91250990
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`Opposer’s marks.4 Thus, the Board cannot find at the pleading stage that, if Opposer
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`proved the factual allegations in the complaint, it would be unable to establish
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`likelihood of confusion as a matter of law.
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`Accordingly, Applicant’s motion for judgment on the pleadings is denied.
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`III. Sua Sponte Review of Pleadings
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`The Board may strike from a pleading any insufficient defense, or any redundant,
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`immaterial, impertinent, or scandalous matter. Fed. R. Civ. P. 12(f); Am. Vitamin
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`Prods. Inc. v. DowBrands Inc., 22 USPQ2d 1313, 1314 (TTAB 1992). See TBMP
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`§ 506.01. Notwithstanding the Board’s finding that judgment as a matter of law is
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`inappropriate, the Board has undertaken a sua sponte review of the pleadings and
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`finds that Opposer’s claim under Section 2(d) of the Trademark Act and Applicant’s
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`third affirmative defense are insufficiently pleaded.5
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`4 Applicant requests that the Board take judicial notice of Exhibits B and C to its motion,
`which are lists of active applications and registrations of “monster” and “monsta” formative
`marks obtained from a search on the USPTO’s TESS database. 5 TTABVUE 8 n. 2, 3. The
`request is denied. The Board does not take judicial notice of application or registration files.
`Beech Aircraft Corp. v. Lightning Aircraft Co., 1 USPQ2d 1290, 1293 (TTAB 1986) (“[T]he
`Board does not take judicial notice of application and registration files that reside in the
`Patent and Trademark Office….”). Moreover, pending applications are evidence only that an
`application has been filed on a certain date. Nike Inc. v. WNBA Enters., LLC, 85 USPQ2d
`1187, 1193 n.8 (TTAB 2007); Interpayment Servs. Ltd. v. Docters & Thiede, 66 USPQ2d 1463,
`1467 n.6 (TTAB 2003). Further, the registrations on the lists have limited probative value
`because the full identifications of goods and services are not included. The third exhibit
`submitted by Applicant (Opposer’s initial disclosures) has not been considered in the
`determination of the subject motion as it is a matter outside the pleadings and was not
`submitted to show the lack of any material facts in dispute.
`5 The Board’s determination regarding whether Opposer has provided Applicant with fair
`notice of the basis of the pleaded claim is unrelated to the question of whether genuine
`disputes of material fact remain for trial. Judgment on the pleadings without the opportunity
`to submit evidence, is inappropriate in this case.
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`
`
`8
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`

`

`Opposition No. 91250990
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`A. Opposer’s Section 2(d) Claim
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`A complaint “must contain sufficient factual matter, accepted as true, to ‘state a
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`claim to relief that is plausible on its face.”’ Dragon Bleu (SARL) v. VENM, LLC, 112
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`USPQ2d 1925, 1926 (TTAB 2014) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009);
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`Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In particular, the claimant
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`must allege well-pleaded factual matter and more than “[t]hreadbare recitals of the
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`elements of a cause of action, supported by mere conclusory statements.” Id.
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`In support of its claim under Section 2(d) of the Trademark Act, Opposer pleads
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`the following salient facts:
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`• Applicant has applied for its mark POND MONSTA for: “Vacuum
`cleaners for ponds and aquatic environments; cleaning machines for
`ponds; suction nozzles for vacuum cleaners adapted for ponds and
`aquatic environments; brushes being parts of cleaning machines for
`ponds and for vacuum cleaners adapted for ponds and aquatic
`environments” in International Class 7, claiming a date of first use
`of February 2, 2012. 1 TTABVUE 9-10, ¶ 1.
`• Opposer owns twelve registrations for MONSTER formative marks
`for various goods in International Classes 5, 9, 16, 18, 25, and 32. Id.
`at 12-18, ¶¶ 12-23.
`• Opposer has used its MONSTER formative marks for energy drinks,
`nutritional supplements, clothing, hats, bags, helmets, gloves, sports
`equipment, stickers,
`lanyards, accessories, and many “other
`products” since 2002. Id. at 10, ¶¶ 2, 3.6
`• Opposer owns a “family” of MONSTER formative marks. Id. at 10,
`12, ¶¶ 2, 3, 4, 11.
`• Opposer’s MONSTER formative marks (or, at least some of them) are
`and have been famous. Id. at 12, 18, ¶¶ 11, 26.
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`6 The Board notes that the pleaded registrations covering these products assert dates of first
`use from 2002 through 2007.
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`
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`9
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`

`

`Opposition No. 91250990
`
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`• Opposer has engaged in promotional activities in conjunction with
`several tool companies, including sponsorships of athletes and teams
`that are also sponsored by tool companies, a promotional giveaway
`with a tool company in 2006-07, unnamed “authorizations” of the use
`of its marks in connection with “tool company promotions,” and a
`single license for its mark for use with tool boxes in 2012. Id. at 11,
`¶¶ 5-8.
`• Opposer’s MONSTER beverage products are sold and promoted in
`non-traditional stores, such as hardware and department stores. Id.
`at 11, ¶ 9.
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`Opposer summarily concludes that that Applicant’s mark “when used on or in
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`connection with the goods and services” is likely to cause confusion, or to cause
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`mistake or to deceive within the meaning of Section 2(d) of the Trademark Act, 15
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`U.S.C. § 1052(d). Id. at 19, ¶ 28.
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`1. The Relationship Between Opposer’s and Applicant’s Goods
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`Opposer has failed to plead any facts which would support its conclusory
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`statement that confusion between Opposer’s and Applicant’s goods is likely. Thus,
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`Opposer has failed to provide Applicant with fair notice of the basis of its likelihood
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`of confusion claim. In particular, Opposer has failed to allege any facts regarding the
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`relationship of Opposer’s goods (or licensed goods) with Applicant’s aquatic vacuum
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`cleaners, suction nozzles and aquatic cleaning brushes, the overlap of Opposer’s trade
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`channels with those in which Applicant’s goods are sold, or the potential for confusion
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`regarding the source of those goods. In particular, the Board notes that, although
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`Opposer has pleaded facts regarding its use of its own marks, its complaint is entirely
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`devoid of allegations regarding Applicant’s use of its mark in connection with the
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`goods in the application that would, if proven, support Opposer’s claim of likely
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`10
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`

`

`Opposition No. 91250990
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`confusion. It is also unclear whether Opposer alleges that its goods overlap with, or
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`are related or complementary to, Applicant’s goods.
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`2. Family of Marks
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`To the extent that Opposer is alleging confusion with a family of MONSTER
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`formative marks, id. at ¶¶ 2, 3, 4, 11, this claim also is insufficiently pleaded. “Simply
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`using a series of similar marks does not of itself establish the existence of a family.”
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`J & J Snack Foods Corp. v. McDonald’s Corp., 932 F.2d 1460, 18 USPQ2d 1889, 1891
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`(Fed. Cir. 1991). To plead ownership of a family of marks, a plaintiff must allege that:
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`(1) the prior use of marks sharing a recognizable common characteristic; (2) the
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`common characteristic is distinctive (i.e., not descriptive or highly suggestive or so
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`commonly used in the trade that it cannot function as the distinguishing feature of
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`any party’s mark); and (3) prior to the defendant’s first use (or constructive first use)
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`of its involved mark, the plaintiff's marks have been used and advertised in
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`promotional material or in everyday sales activities in such a manner as to create
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`common exposure and thereafter recognition among the purchasing public such that
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`the common characteristic is itself indicative of a common origin of the goods or
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`services. Wise F&I, LLC v. Allstate Ins. Co., 120 USPQ2d 1103, 1109 (TTAB 2016).
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`Here, although Opposer pleads that it owns a number of marks including the
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`common term “monster,” Opposer fails to allege that the common term is distinctive
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`and that, prior to the first use of Applicant’s mark, Opposer’s marks have been used
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`and advertised in such a manner so that the public associates the “monster” term as
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`
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`11
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`

`

`Opposition No. 91250990
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`an indicator of a common source of the goods. See, e.g., Truescents LLC v. Ride Skin
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`Care, L.L.C., 81 USPQ2d 1334, 1337-38 (TTAB 2003).
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`3. Common Law Rights in Goods Other Than Those in its
`Registrations.
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`Opposer has not sufficiently pleaded common law rights with respect to anything
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`other than the goods that are the subject of its registrations. Opposer, in paragraph
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`3 of the notice of opposition, refers to use of its marks on or in connection with, a “line
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`of drinks and clothing, gloves, headgear, helmets, decals, bags and numerous other
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`products”; see also 1 TTABVUE 10, ¶ 2 (“other products”). The pleading of use of the
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`marks in connection with “other…products” is vague and insufficient to provide
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`Applicant with fair notice of the basis of Opposer’s claim of common law rights in
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`other goods, if any. See Fair Indigo LLC v. Style Conscience, 85 USPQ2d 1536, 1538
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`(TTAB 2007) (elements of each claim should be stated concisely and directly, and
`
`include enough detail to give the defendant fair notice). Cf. Hunt Control Sys. Inc. v.
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`Koninklijke Philips Elec. N.V., 98 USPQ2d 1558, 1562 (TTAB 2011) (“lighting control
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`panels and electrical light dimmers and their related components” found a sufficient
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`pleading of common law rights).
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`Of particular significance to Applicant’s mark, Opposer claims use of its pleaded
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`marks on or in connection with “tools” in paragraphs 5-7 of the notice of opposition.
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`Such goods could encompass a wide range of goods in several international classes,
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`e.g., “Tools, components and supplies for use in making signs, namely, metal
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`substrates, panels, sign blanks and wire” in International Class 6; “Metalworking
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`machine tools” or various “power tools” in International Class 7, “Hand tools” in
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`
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`12
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`

`

`Opposition No. 91250990
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`International Class 8; or “Tools for loading weapons” in International Class 13.
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`Similarly, Opposer’s claimed use of its mark(s) for “toolboxes,” 1 TTABVUE 11, ¶ 8,
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`could encompass “Tool boxes of metal” in International Class 6 or “Non-metal tool
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`boxes” in International Class 20. Further, Opposer has failed to specify which of its
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`marks have been used in connection with these goods. See Phillies v. Phila. Consol.
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`Holding Corp., 107 USPQ2d 2149, 2153 (TTAB 2013) (“Language in the notice of
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`opposition such as ‘including, but not limited to,’ or ‘wide variety of goods and services’
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`… is vague and indefinite and does not provide fair notice of the specific marks on
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`which opposer is relying in support of its 2(d) claim and/or the specific goods and/or
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`services upon which those marks are used ….”).
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`Opposer also has failed to plead that its alleged common law rights (particularly
`
`the uses for “tools” and “toolboxes”) preceded the actual or constructive use of
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`Applicant’s mark for its identified goods. See Trademark Act Section 2(d) (mark may
`
`be refused registration based on likelihood of confusion with a “mark registered in
`
`the Patent and Trademark Office, or a mark or trade name previously used in the
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`United States by another and not abandoned”); King Candy Co. v. Eunice King’s
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`Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108, 110 (CCPA 1974).
`
`Therefore, the Board finds that, to the extent that Opposer intends to rely upon
`
`its asserted common law rights in support of its Section 2(d) claim, Opposer has failed
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`to provide fair notice of such common law rights because it has not identified in
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`sufficient detail those goods or marks for which it claims such prior common law
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`rights.
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`
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`13
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`

`

`Opposition No. 91250990
`
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`In view of the foregoing findings, Opposer’s Section 2(d) claim is dismissed
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`without prejudice.
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`B. Applicant’s Third Affirmative Defense
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`For its third affirmative defense, Applicant asserts that, “Opposer is barred by
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`acquiescence, estoppel or laches from opposing registration of the POND MONSTA
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`mark.” Id. at ¶ 20. This conclusory allegation is legally insufficient because it does
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`not provide Opposer with fair notice of the factual bases for the defenses. Fed. R. Civ.
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`P. 8(b)(1) and 12(f); see e.g., IdeasOne, Inc. v. Nationwide Better Health, Inc., 89
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`USPQ2d 1952, 1953 (TTAB 2009); Fair Indigo, 85 USPQ2d at 1538; Midwest Plastic
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`Fabricators Inc. v. Underwriters Labs. Inc., 5 USPQ2d 1067, 1069 (TTAB 1980); see
`
`also TBMP § 311.02(b) (“The elements of a defense should be stated simply, concisely,
`
`and directly. However, the pleading should include enough detail to give the plaintiff
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`fair notice of the basis for the defense.”).
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`Further, the affirmative defenses of laches, acquiescence, and estoppel generally
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`are not applicable in opposition proceedings because these defenses start to run from
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`the time a mark is published for opposition, not from the time of knowledge of use.
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`See Nat’l Cable Television Ass’n, Inc. v. Am. Cinema Editors, Inc., 937 F.2d 1572, 19
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`USPQ2d 1424, 1432 (Fed. Cir. 1991); Barbara’s Bakery, Inc. v. Landesman, 82
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`USPQ2d 1283, 1292 n.14 (TTAB 2007).7
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`Accordingly, the Board strikes Applicant’s third affirmative defense.
`
`
`7 But see Morehouse Mfg. Corp. v. J. Strickland & Co., 407 F.2d 881, 160 USPQ 715, 717
`(CCPA 1969) (equitable defenses based on prior, uncancelled registration); TBC Corp. v.
`Grand Prix Ltd., 12 USPQ2d 1311, 1313-14 (TTAB 1989) (discussing applicability of
`Morehouse defense).
`
`
`
`14
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`

`

`Opposition No. 91250990
`
`IV. Summary
`
`Applicant’s motion for judgment on the pleadings is denied. However, Opposer’s
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`Section 2(d) claim is dismissed for failure to state a legally sufficient claim. In
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`addition, Applicant’s third affirmative defense is stricken without prejudice.
`
`In keeping with Board practice, Opposer is allowed until TWENTY DAYS from
`
`the date of this order to file an amended notice of opposition that includes sufficient
`
`factual allegations, as fully discussed in this order, to provide Applicant with fair
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`notice of the basis of its likelihood of confusion claim based on ownership of
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`registrations, common law rights, or a family of marks, if applicable. See TBMP
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`§ 503.03. If Opposer fails to file an amended pleading, the notice of opposition will
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`stand dismissed.
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`Applicant is allowed until TWENTY ONE DAYS from the date any such amended
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`notice of opposition is filed to file an answer thereto.
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`Proceedings are otherwise suspended pending Opposer’s filing of an amended
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`notice of opposition. Proceedings resume on June 25, 2020 without any further action
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`by the Board.
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`Discovery, trial and briefing dates are reset as set forth below:
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`9/7/2020
`Expert Disclosures Due
`10/7/2020
`Discovery Closes
`11/21/2020
`Plaintiff's Pretrial Disclosures Due
`1/5/2021
`Plaintiff's 30-day Trial Period Ends
`1/20/2021
`Defendant's Pretrial Disclosures Due
`3/6/2021
`Defendant's 30-day Trial Period Ends
`3/21/2021
`Plaintiff's Rebuttal Disclosures Due
`Plaintiff's 15-day Rebuttal Period Ends 4/20/2021
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`15
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`

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`Opposition No. 91250990
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`6/19/2021
`Plaintiff's Opening Brief Due
`7/19/2021
`Defendant's Brief Due
`8/3/2021
`Plaintiff's Reply Brief Due
`Request for Oral Hearing (optional) Due 8/13/2021
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`Generally, the Federal Rules of Evidence apply to Board trials. Trial testimony is
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`taken and introduced out of the presence of the Board during the assigned testimony
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`periods. The parties may stipulate to a wide variety of matters, and many
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`requirements relevant to the trial phase of Board proceedings are set forth in
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`Trademark Rules 2.121 through 2.125. These include pretrial disclosures, matters in
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`evidence, the manner and timing of taking testimony, and the procedures for
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`submitting and serving testimony and other evidence, including affidavits,
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`declarations, deposition transcripts and stipulated evidence. Trial briefs shall be
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`submitted in accordance with Trademark Rules 2.128(a) and (b). Oral argument at
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`final hearing will be scheduled only upon the timely submission of a separate notice
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`as allowed by Trademark Rule 2.129(a).
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`*
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`*
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`*
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`16
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`