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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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`December 5, 2022
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`Opposition No. 91274363
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`Monster Energy Company
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`v.
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`DGS Defense Corp.
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`Rebecca Stempien Coyle, Interlocutory Attorney:
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`On October 31, 2022, the Board issued a notice of default against Applicant,
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`pursuant to Fed. R. Civ. P. 55(a), for its failure to file either an answer to the notice
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`of opposition, or a motion to extend the time to file an answer. 19 TTABVUE. On
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`October 31, 2022, Applicant filed its late answer to the notice of opposition and a
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`response to the Board’s notice of default. 20 TTABVUE.
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`Whether default judgment should be entered against a party is determined in
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`accordance with Fed. R. Civ. P. 55(c), which reads in pertinent part: “for good cause
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`shown the court may set aside an entry of default.” As a general rule, good cause to
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`set aside a defendant’s default will be found where the defendant’s delay has not been
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`willful or in bad faith, when prejudice to the plaintiff is lacking, and where the
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`defendant has a meritorious defense. See Fred Hyman Beverly Hills, Inc. v. Jacques
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`Barnier, Inc., 21 USPQ2d 1556 (TTAB 1991). The determination of whether default
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`Opposition No. 91274363
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`judgment should be entered against a party lies within the sound discretion of the
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`Board. See, e.g., Identicon Corp. v. Williams, 195 USPQ 447, 449 (Comm’r 1977); see
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`also TBMP § 312.02. Moreover, because it is the policy of the Board to decide cases
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`on their merits, the Board is reluctant to enter default judgment for failure to file a
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`timely answer, and tends to resolve any doubt on the matter in favor of the defendant.
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`See Paolo’s Associates Limited Partnership v. Paolo Bodo, 21 USPQ2d 1899 (Comm’r
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`1990).
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`The delay in this case has been minimal. It seems extremely unlikely that any
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`cognizable prejudice could have resulted from a delay of less than one month.
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`Additionally, Opposer has not responded to Applicant’s motion nor is there anything
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`in the record indicating that Opposer would be prejudiced. Inasmuch as the record
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`does not indicate that Applicant acted in bad faith or for the purpose of delay or with
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`a lack of diligence and because Applicant, by its answer, sets forth a meritorious
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`defense to the allegations, the Board finds that Applicant has shown good cause to
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`set aside the notice of default. Accordingly, the Board’s October 31, 2022 notice of
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`default is set aside. See TBMP § 312.02.
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`Applicant’s answer filed with its response is its operative pleading in this
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`proceeding. 20 TTABVUE 5-11.
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`Proceedings herein are resumed, and conference, discovery, disclosure and trial
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`dates are reset as follows:
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`Deadline for Discovery Conference
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`Discovery Opens
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`Initial Disclosures Due
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`1/4/2023
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`1/4/2023
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`2/3/2023
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`2
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`Opposition No. 91274363
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`Expert Disclosures Due
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`Discovery Closes
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`Plaintiff's Pretrial Disclosures Due
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`Plaintiff's 30-day Trial Period Ends
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`6/3/2023
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`7/3/2023
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`8/17/2023
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`10/1/2023
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`Defendant's Pretrial Disclosures Due
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`10/16/2023
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`Defendant's 30-day Trial Period Ends
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`11/30/2023
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`Plaintiff's Rebuttal Disclosures Due
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`12/15/2023
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`Plaintiff's 15-day Rebuttal Period Ends 1/14/2024
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`Plaintiff's Opening Brief Due
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`Defendant's Brief Due
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`Plaintiff's Reply Brief Due
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`Request for Oral Hearing (optional) Due
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`3/14/2024
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`4/13/2024
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`4/28/2024
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`5/8/2024
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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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`TIPS FOR FILING EVIDENCE, TESTIMONY, OR LARGE DOCUMENTS
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`The Board requires each submission to meet the following criteria before it will be
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`considered: 1) pages must be legible and easily read on a computer screen; 2) page
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`3
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`Opposition No. 91274363
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`orientation should be determined by its ease of viewing relevant text or evidence, for
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`example, there should be no sideways or upside-down pages; 3) pages must appear in
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`their proper order; 4) depositions and exhibits must be clearly labeled and numbered
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`– use separator pages between exhibits and clearly label each exhibit using sequential
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`letters or numbers; and 5) the entire submission should be text-searchable.
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`Additionally, submissions must be compliant with Trademark Rules 2.119 and 2.126.
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`Submissions failing to meet all of the criteria above may require re-filing. Note:
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`Parties are strongly encouraged to check the entire document before filing. 1 The
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`Board will not extend or reset proceeding schedule dates or other deadlines to allow
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`time to re-file documents. For more tips and helpful filing information, ple ase visit
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`the ESTTA help webpage.
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`1 To facilitate accuracy, ESTTA provides thumbnails to view each page before submitting.
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`4
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