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Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
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`ESTTA Tracking number:
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`ESTTA1082683
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`Filing date:
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`09/17/2020
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding
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`91256549
`
`Party
`
`Correspondence
`Address
`
`Defendant
`Stonecoat GP, LLC
`
`WARREN V NORRED
`NORRED LAW PLLC
`515 E. BORDER STREET
`ARLINGTON, TX 76010
`UNITED STATES
`Primary Email: wnorred@norredlaw.com
`Secondary Email(s): carol@norredlaw.com, anorred@norredlaw.com, an-
`gela@norredlaw.com
`817-704-3984
`
`Submission
`
`Filer's Name
`
`Filer's email
`
`Signature
`
`Date
`
`Reply in Support of Motion
`
`Warren V. Norred
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`warren@norredlaw.com
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`/Warren V. Norred/
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`09/17/2020
`
`Attachments
`
`2020_09_17-SC-ReplyinSupportofMotLateFile.pdf(190304 bytes )
`
`

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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`StonCor Group, Inc.
`Opposition No. 91256549
` Opposer,
`
`
`
`v.
`Mark: STONECOAT
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`
`
`
`Stonecoat GP, LLC
`App. No.: 88600289
`Applicant’s Mark: Earthlok
` Applicant
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`
`
`
`§ § § § § § § §
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`
`
`
`APPLICANT'S REPLY IN SUPPORT OF
`APPLICANT’S MOTION TO VACATE ENTRY OF DEFAULT and
`MOTION TO EXTEND TIME TO FILE AN ANSWER and BRIEF IN SUPPORT
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`COMES NOW, Stonecoat GP, LLC ("Stonecoat"), Applicant in the above opposition, to
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`
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`file this reply (“Reply”) supporting his request that the TTAB vacate its entry of default in this
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`proceeding and extend time to file an answer (“Motion”) to the Opposition filed by StonCor
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`Group, Inc. (“StonCor” or “Opposer”).
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`I.
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`SUMMARY
`
`1.
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`Opposer’s entire response distills to the claim that the Applicant should not be granted
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`the motion because he acted at the end of the deadline instead of at some other arbitrary point
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`agreeable to the Opposer. Opposer alleges this supposedly dispositive claim specifically at least
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`five times and implies many more times. To add to this, Opposer essentially re-alleges his Notice
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`of Opposition to refute the meritorious defense of the Applicant, which does not truly prove that
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`a meritorious defense of the Applicant does not exist. Contrary to Opposer’s Response,
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`Applicant demonstrably acted for good cause and presented a complete and meritorious defense.
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`Having had an opportunity to argue against the Motion and failing to provide the TTAB with any
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`legitimate reason to believe that the Motion should not be granted, Opposer’s Applicant asks
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`TTAB to vacate the default and for leave to file his answer for good cause and excusable neglect.
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`91256549, Reply ISO Applicant’s Motion to Vacate Entry of Default and Extend Time to File an Answer
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`
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`Page 1
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`

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`II. BACKGROUND
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`2.
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`Applicant filed his Motion to Vacate Entry of Default and Motion to Extend Time to File
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`an Answer and Brief in Support on August 14, 2020. The Motion included the supporting
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`Declaration of Ken Morrison and proposed answer, incorporated here by reference.
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`3.
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`Opposer filed
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`its Opposition
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`to
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`the Applicant’s Motion
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`to Vacate Entry of
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`Default and Motion to Extend Time to File an Answer on August 28, 2020.
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`III. APPLICANT’S RESPONSE TO OPPOSER’S ARGUMENTS
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`4.
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` Although Applicant disagrees with the characterization of the facts presented in Section
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`II (B) of the Opposer’s Response, the fact that both the Applicant and his counsel contacted the
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`Opposer’s through is counsel prior to the deadline to resolve the matter is correct.
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`5.
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` Opposer argues that Applicant failed to show “good cause” for the late answer to the
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`Notice of Opposition, because Opposer alleges Applicant acted willfully or negligently and
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`Applicant has failed to show meritorious defense to the action.
`
`A. Applicant did not act willfully or with gross negligence.
`
`i.
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`Applicant’s contact with Opposer proves that Applicant did not willfully fail to act.
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`6.
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`As noted in his declaration, Applicant contacted Opposer through who he believed to be
`
`the right contact, to resolve the issue of the August 3, 2020 deadline. Opposer freely admits in
`
`Section II (B) that such contact did occur before the end of the deadline.
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`7.
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`As all parties agree, Opposer’s counsel requested Mr. Morrison contact Opposer through
`
`his counsel, Mr. Norred, to resolve the matter through official channels.
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`8.
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`Again, as noted in both the Applicant’s Declaration and Opposer’s Response, Mr. Norred
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`contacted Opposer’s counsel concerning the matter before the end of the deadline.
`
`91256549, Reply ISO Applicant’s Motion to Vacate Entry of Default and Extend Time to File an Answer
`
`
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`Page 2
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`

`

`9.
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`Additionally Section II (B) of Opposer’s response confirms both counsel for the Opposer
`
`and counsel for the Applicant discussed the matter of extending the deadline, yet counsel for the
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`Opposer claimed she was unable to authorize any extension without confirmation from the
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`Opposer. He freely admits in his response that he was unavailable to discuss the details of the
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`deadline resolution due to his own travel arrangements.
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`10.
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`If Opposer wishes to argue that travel during a suit with impending deadlines is
`
`inadvisable, especially when a deadline of this magnitude was imminent, perhaps Opposer
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`should consider how his own travel arrangements confounded the reasonable effort made by
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`Applicant and his counsel to resolve said deadline.1
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`ii. Applicant acted within the deadline to answer and moved for leave reasonably.
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`11.
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` Opposer repeatedly alleges throughout his response that somehow Applicant acted
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`negligently simply because of when the action took place within the deadline. The exact
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`occurrence of an action within a deadline, which is relevant to the resolution of the matter at
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`hand, has no import on the legitimacy of that effort so long as it occurred within the deadline.
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`Applicant would request this Court consider what the purpose of a deadline is if one’s efforts can
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`be labeled negligent simply because the opposition deems it “the absolute last day” and therefore
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`somehow illegitimate.
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`12.
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`Opposer has provided no legitimate reason to suggest that actions on the last day of a
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`deadline equate to willful or gross negligence as described in four factors in the four factor test
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`of exclusable neglect found in Pioneer Investment Services Co. v. Brunswick Asso., Ltd.
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`Partnership, 507 U.S. 380, 395 (1992), as described in the Motion.
`
`
`
` 1
`
` See p.5 of Opposer’s Opposition to Applicant’s Motion to Vacate Entry of Default and Motion to Extend Time to
`File an Answer.
`91256549, Reply ISO Applicant’s Motion to Vacate Entry of Default and Extend Time to File an Answer
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`
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`Page 3
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`

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`13.
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`Opposer has not indicated why the TTAB should not join the Supreme Court in
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`disfavoring default judgments, or determine the victor on something other than the merits.
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`B. Applicant has a Meritorious Defense to this Action.
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`14.
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`Opposer helpfully notes the elements of a meritorious defense in Section III (B)(2). “To
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`determine whether a party has a meritorious defense, the defaulting party need not establish that
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`there is a likelihood that it ‘will carry the day.’” El Encanto, 2001 WL 531176, at *2 (quoting
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`Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 98 (2d Cir. 1993). However, the party must show that
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`“the evidence submitted, if proven at trial, would constitute a complete defense.” Id. See also
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`Advanced Commc’n Design, Inc. v. Premier Retail Networks, Inc., 46 Fed. Appx. 964, 973 (Fed.
`
`Cir. 2002) (stating in a patent infringement case that “in the Rule 55(c) context … a meritorious
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`defense means that the evidence or argument proffered by the defaulting party could reasonably
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`lead to a finding in the defaulting party’s favor”).
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`15.
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`As presented in his Opposition to the Applicant’s Motion to Vacate Entry of
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`Default and Motion to Extend Time to File an Answer, Applicant presents this court with a
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`proposed answer to the Notice of Opposition from the Opposer.
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`16.
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`As meets the requirements stated in El Encanto, the proposed answer submitted would
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`constitute a complete defense. Applicant believes that this defense will indeed carry the day
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`based on the quality and quantity of evidence and arguments presented.
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`IV. PRAYER
`
`
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`As described above and in the Declaration, the missed deadline was inadvertent, and once
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`the error was recognized, this motion and attached proposed answer was written and
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`expeditiously provided. As Opposer has suffered no prejudice, Applicant asks that the entry of
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`91256549, Reply ISO Applicant’s Motion to Vacate Entry of Default and Extend Time to File an Answer
`
`
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`Page 4
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`

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`default be vacated and the answer allowed to be filed and considered, and for all other relief
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`appropriate by law or equity.
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`
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`Dated: September 17, 2020
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`
`
`/s/ Warren V. Norred
`Warren V. Norred, TX Bar No. 24045094
`515 E. Border Street; Arlington, Texas 76010
`817-704-3984 O; 817-524-6686 F
`wnorred@norredlaw.com
`Attorney for Applicant
`
`CERTIFICATE OF SERVICE - I hereby certify that a true and accurate copy of the above
`response has been served on the following by delivering said copy on September 17, 2020, via
`the TTAB's e-filing system, to counsel for Opposer.
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`/s/Warren V. Norred
`Warren V. Norred, TBN 24045094
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`91256549, Reply ISO Applicant’s Motion to Vacate Entry of Default and Extend Time to File an Answer
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`
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`Page 5
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`

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