Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
`
`Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA95182
`ESTTA Tracking number:
`08/17/2006
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`92045690
`Plaintiff
`Toytrackerz LLC
`
`Toytrackerz LLC
`302 South Lowman Street
`Fort Scott, KS 66701
`UNITED STATES
`Terri Lynn Coop
`Toytrackerz LLC
`302 South Lowman Street
`Fort Scott, KS 66701
`UNITED STATES
`toylaw@classicnet.net
`Other Motions/Papers
`Terri Lynn Coop
`toylaw@classicnet.net
`/Terri Lynn Coop/
`08/17/2006
`ttabdefaultmotion.pdf ( 2 pages )(49562 bytes )
`ttabdefaultbrief1.pdf ( 38 pages )(163407 bytes )
`Aaddresspage.pdf ( 4 pages )(12717 bytes )
`Bttabdocket.pdf ( 1 page )(38425 bytes )
`Cnonfinal.pdf ( 3 pages )(14439 bytes )
`Dnewregs.pdf ( 1 page )(70518 bytes )
`Ehelderindict.pdf ( 2 pages )(62119 bytes )
`Fhelderappeal.pdf ( 10 pages )(33565 bytes )
`Gcivilcomplaint.pdf ( 8 pages )(1744587 bytes )
`Hcivilcounterclaim.pdf ( 25 pages )(72513 bytes )
`Ittabcxr.pdf ( 1 page )(35391 bytes )
`Jttabjwa.pdf ( 1 page )(37472 bytes )
`Kttabbotw.pdf ( 1 page )(35392 bytes )
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`In the matter of trademark Registration No: 1776628
`
`In the matter of TTAB Cancellation Proceeding No: 92045690
`
`For the mark: “MARX” [standard character mark]
`
`Date registered:
`
`June 15, 1993 [renewed August 8, 2003, cancelled June 30, 2006]
`
`Toytrackerz LLC
`A Kansas Limited Liability Company
`
`VS.
`
`American Plastic Equipment Inc.
`A Florida Corporation
`
`ANSWER IN OPPOSITION TO MOTION
`
`TO VACATE DEFAULT JUDGMENT
`
`l.
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`2.
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`3.
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`4.
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`5.
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`6.
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`The Plaintiff, Toytrackerz LLC dba Circle X Ranch is a Kansas Limited Liability
`Company having its principal place of business at 302 South Lowman Street, Fort Scott,
`Kansas, 66701.
`
`On information and belief, Defendant American Plastic Equipment, Inc. is a Florida
`Corporation having its principal place of business at l0l South 15”‘ Street, Sebring, Ohio,
`44672.
`
`Plaintiff filed a Petition for Cancellation of the above referenced mark on April ll, 2006.
`On June 23, 2006, the Board granted Plaintiff‘ s Motion for Default Judgment On June
`30, 2006, the Commissioner issued an order cancelling the mark.
`
`On August 3, 2006, Defendant filed a motion to vacate the default judgment.
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`For the reasons stated below and detailed in the attached brief, Plaintiff requests the
`Board deny the Motion to Vacate Default Judgment and terminate the case.
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`In support of this request, Plaintiff states as follows:
`
`a)
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`Defendant has not shown that their failure to file any responsive pleading is a
`result of ‘excusable neglect’ as required by FRCP 60(b).
`
`b)
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`Defendant has not shown that their attomey’s failure to file any responsive
`
`

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`pleading is a result of ‘excusable neglect’ as required by FRCP 60(b).
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`c)
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`d)
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`Plaintiff had standing to initiate the cancellation action pursuant to TTAB rules of
`practice.
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`Plaintiff had grounds to initiate the cancellation action pursuant to TTAB rules of
`practice.
`
`Based on Defendant’s failure to file a responsive pleading within the period allowed by the
`Trademark Trial and Appeal Board, and Defendant’s failure to meet their burden of proof to
`qualify for relief under FRCP 60(b), Plaintiff asks this Board to deny the Motion to Vacate
`Default Judgment, to terminate the case and to grant any other equitable relief deemed just and
`fair. Answer to Motion For Default Judgment respectfully submitted on the l7‘h day of August
`2006.
`
`/s/Terri Lfln Coop/
`Terri Lynn Coop
`Attorney For The Plaintiff
`302 South Lowman Street
`
`Fort Scott KS 66701
`
`620-224-2945
`
`toylaw@classicnet.net
`
`CERTIFICATE OF SERVICE
`
`I, Terri Lynn Coop, hereby certify that a true and complete copy of the foregoing Answer In
`Opposition to Motion To Vacate Default Judgment has been served on Defendant ’s Attorney -
`David E. Herron II. by mailing said copy on the l7th’d day of August 2006, via First Class Mail,
`postage prepaid to:
`
`David E. Herron 11
`
`PO Box 2778
`
`Kansas City KS 661 10
`
`/s/Terri Lfln Coop/
`Terri Lynn Coop
`Attorney For The Plaintiff
`302 South Lowman Street
`
`Fort Scott KS 66701
`
`620-224-2945
`
`toylaw@classicnet.net
`
`

`
`BRIEF IN SUPPORT OF OPPOSITION TO MOTION
`
`TO VACATE DEFAULT JUDGMENT
`
`THE MATTER BEFORE THE BOARD
`
`The matter before the Trademark Trial and Appeal Board [TTAB] is Defendant’s Motion to
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`Vacate Default Judgment with respect to the cancellation of the standard character mark “Marx,”
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`Registration number 1776628.
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`PROCEDURAL HISTORY AND DESCRIPTION
`
`OF THE RECORD
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`The following information is taken from the public records of the TTAB, as reported through
`
`‘TTABVUE,’ the Trademark Trial and Appeal Board Inquiry System.
`
`1.
`
`On April 11, 2006, the Plaintiff, Toytrackerz LLC, instituted Cancellation #92045690
`
`against Defendant, American Plastic Equipment, Inc. The petition was submitted Via the
`
`Trademark Trial and Appeal Board Electronic Filing System and assigned the ESSTA
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`Tracking Number ESTTA75540. The petition was accompanied by the required fee.
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`2.
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`On April 11, 2006, the TTAB acknowledged the filing and mailed notice to both Plaintiff
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`and Defendant. This notice established an Answer date of May 21, 2006.
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`3.
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`On May 23, 2006, the Plaintiff filed a Motion for Default Judgment. The motion was
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`submitted Via the Trademark Trial and Appeal Board Electronic Filing System and
`
`

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`assigned the ESSTA Track Number ESTTA8 l 893. As stated in the Certificate of
`
`Service, a copy of the Motion for Default Judgment, the Plaintiff mailed a copy of the
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`motion Via first class mail to Defendant at the address of record.
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`On June 22, 2006, the TTAB granted the Motion for Default Judgment and mailed notice
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`to both Plaintiff and Defendant at their address of record.
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`On June 30, 2006, the Commissioner of Trademarks issued an order cancelling
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`Trademark Registration number 1776628. Notice of the cancellation was mailed to
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`Plaintiff and Defendant at their address of record. The TTAB case was terminated.
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`On August 3, 2006, Defendant filed a Motion to Vacate the Default Judgment. This
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`motion was filed by United States mail. The motion was deemed received and docketed
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`by the TTAB on August 10, 2006.
`
`

`
`QUESTIONS PRESENTED
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`Whether Defendant’s Failure To File an Answer in the TTAB Cancellation Proceeding
`was a Result of ‘Excusable Neglect.’
`
`Whether Defendant’s Attorney’s Failure To File an Answer in the TTAB Cancellation
`Proceeding was a Result of ‘Excusable Neglect.’
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`III.
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`IV.
`
`Whether Plaintiff Had Standing To Institute The Cancellation Proceeding.
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`Whether Plaintiff’ s Grounds For Cancellation Were Allowable Under TTAB Rules of
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`Practice.
`
`

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`TABLE OF CONTENTS
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`The Matter Before The Court .
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`Procedural History .
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`Questions Presented .
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`Table Of Contents .
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`1.
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`Whether Defendant’s Failure To File an Answer in the TTAB
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`Cancellation Proceeding was a Result of ‘Excusable Neglect.’ .
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`A.
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`Served Pursuant To TTAB Rules .
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`B.
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`Defendant’s Failure To File A Responsive Pleading
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`13
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`11.
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`Whether Defendant’s Attorney’s Failure To File an Answer in the
`TTAB Cancellation Proceeding was a Result of ‘Excusable Neglect.’.
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`A.
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`Jan P. Helder’s Loss Of His Law Practice Is Not Excusable
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`Neglect.
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`B.
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`C.
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`Neglect and Inattention By Defendant’s Attorney Resulted
`in Multiple Defaults . .
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`Attorney Inattention and Neglect Do Not Entitle A Defendant
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`III.
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`Whether Plaintiff Had Standing To Institute The Cancellation
`Proceeding .
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`31
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`IV. Whether Plaintiff’ s Grounds For Cancellation Were Allowable
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`33
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`Under TTAB Rules of Practice .
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`Conclusion .
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`37
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`-4-
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`8.
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`Certificate Of Service .
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`37
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`Index of Exhibits .
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`38
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`

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`TABLE OF AUTHORITIES
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`(alphabetical with page of first appearance)
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`Andree v. Centerfor Alternative Sentencing and Employment Servs,
`1993 US Dist. Lexis 12697, 1993 WL 362394 (S.D.N.Y. Sept 14, 1993) .
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`23
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`City ofChanute, Kansas V. William Nat. Gas Co., 31 F.2d 1041
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`Goodwin v. General Motors Corp., 02-2606, 2004 US Dist. Lexis
`121 (D. Kan. Jan. 5, 2004) .
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`Hussain v. Nicholson, 435 F.3d 359 (D.C. Cir. 2006) .
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`Jack Lenor Larsen, Inc. v. Chas. 0. Larson Co., 44 USPQ 2d 1950 .
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`Link v. Wabash R. Co., 370 US 626 (1962) .
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`29
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`Litton Business Systems Inc. v. .I.G. Furniture Co., 190 USPQ 428
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`Nelson v. Boeing Co., 446 F.3d 1118 (10th Cir. 2006) .
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`Nikwei v. Ross School ofAviation, Inc., 822 F.2d 939 (10“‘ Cir. 1987) .
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`13
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`Pumpkin Ltd. v. The Seed Corps, 43 USPQ 2d 1582 (1997) .
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`13
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`Southern Pride, Inc. v. Turbo Tek Enterprises, Inc., 117 FRD 566,
`5 USPQ 1589, 1590 (D N.C. 1987) .
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`12
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`11.
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`>—a DJ
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`Syosset Laboratories, Inc. v. TI Pharmaceuticals, 216 USPQ 330
`(TTAB I982) .
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`)—*)—*)—*)—*.\‘S3‘9‘:5
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`Thompson v. E.I. duPont de Nemours & Co, Inc. 76 F.3d 530 (4th Cir. 1996) .
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`13
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`Tonka Corp. v. Tonka Tools, Inc. 229 USPQ 857 (TTAB 1986) .
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`United States v. Boyle, 469 US 241 (1985) .
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`. 29
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`Waifersong, Ltd. Inc. v. Classic Music Vending, 976 F.2d 290 (611 Cir. 1992) .
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`. 14
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`

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`18.
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`Weinstoc/av. Cleary, Gottlieb, Steen &Hamilton, 16 F.3d 501 (2nd Cir. 1994) .
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`13
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`19.
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`Williams v. Five Platters, Inc. 510 F.2d 963, 184 USPQ, 744 (CCPA 1975) .
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`l4
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`TRADEMARK TRIAL AND APPEAL BOARD
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`MANUAL OF PROCEDURE
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`1.
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`2.
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`TBMP §ll3.0l - Requirements for Service of Papers .
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`9
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`TBMP §ll3.03 - Elements of Certificate of Service .
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`ll
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`3.
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`4.
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`5.
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`TBMP§l13.04 - Manner ofSerVice .
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`TBMP §307.l - Petitions That May Be Filed At Any Time After Registration .
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`. 35
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`TBMP §309.03 - Standing .
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`. 32
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`. 34
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`6.
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`7.
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`8.
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`TBMP §3l2.0l - Default In General
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`. 14
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`TBMP §3l2.03 - Setting Aside Default Judgment.
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`19
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`STATUTES
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`. .. 34
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`1.
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`15 U.S.C. §l064(3) .
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`FEDERAL RULES OF CIVIL PROCEDURE
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`1.
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`FRCP Rule 60(b) - Relief From Judgment or Order .
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`8
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`ANCILLARY CASES
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`1.
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`2.
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`USA v. Helder, 4:05-cr-00125-DW (W.D. Mo 2005) .
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`. 21
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`Toytrackerz LLC v. American Plastic Equipment, Inc. ,
`2:06-cv-02042-DJW (D. Kan. 2006) .
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`. 21
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`

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`ARGUMENT AND AUTHORITIES
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`Whether Defendant’s Failure To File an Answer in the TTAB Cancellation
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`Proceeding was a Result of ‘Excusable Neglect.’
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`Defendant’s Motion To Vacate Default Judgment fails to properly cite the grounds and
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`authority under which relief is sought. However, Defendant makes reference to ‘Lack of
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`Wilfullness’ and ‘any delay caused .
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`.
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`. should be considered excusable and unavoidable.’
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`Therefore, Plaintiff is proceeding under the assumption that this is a ‘Relief From
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`Judgment or Order’ pursuant to Federal Rules of Civil Procedure Rule 60(b)(1) which
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`states: “On motion and upon such terms as are just, the court may relieve a party or a
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`party's legal representative from a final judgment, order, or proceeding for the following
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`reasons:
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`(1) mistake, inadvertence, surprise, or excusable neglect;
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`A.
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`Defendant Is Presumed To Have Received Petition Served Pursuant To TTAB
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`Rules.
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`The Trademark Trial and Appeal Board Manual of Procedure (TBMP) and the
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`accompanying federal statutes clearly defines the requirements and procedures for
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`service of papers in an inter partes proceeding before the Board:
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`37 CFR § 2.119 Service and Signing ofPapers:
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`(a)
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`Every paper filed in the Patent and Trademark Office in inter partes cases,
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`including notice of appeal, must be served upon the other parties except
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`the notice ofinterference (§ 2.93), the notzfcation ofopposition (§ 2.105),
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`-8-
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`

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`the petition [or cancellation (§ 2.113), and the notice ofa concurrent use
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`proceeding (§ 2.99), which are mailed by the Patent and Trademark
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`Oflice. TBMP §113, Chapter 100, page 37.
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`TBMP §113.01 - Reguirements for Service of Papers:
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`Every document filed in an inter partes proceeding before the Board, including a
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`notice of appeal from a decision of the Board, must be served by the filing party
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`upon every other party to the proceeding. The only exceptions to this rule are the
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`notice of opposition and petition [or cancellation, which are sent by the Board
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`to the defendant or defendants. TBMP §113.01, Chapter 100, page 38.
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`Service was made on April 11, 2006 via United States mail by the TTAB,
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`pursuant to TBMP §113.01 and 37 CFR § 2.119 to Defendant’s address of record
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`with the United States Patent and Trademark Office, to wit:
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`Address:
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`AMERICAN PLASTIC EQUIPMENT INC.
`101 South 15th Street
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`Sebring, OH 44672
`United States
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`Legal Entity Type: Corporation
`State or Country of Incorporation: Florida
`
`Source: USPTO TARR website/database entry for Registration #1776628
`http://tarr.uspto.gov/servlet/tarr?regser=serial&entg:74061 841
`[Exhibit A]
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`TTAB Docket Item #2 [Exhibit B]
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`Defendant does not assert that this is an incorrect or invalid address. Instead, the
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`

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`Motion to Vacate Default Judgment states: “Defendant does not recall ever being
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`served or properly notified in the instant case.” Motion, page 1.
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`This conclusory and self-serving assertion is similar to the fact-pattem in TTAB
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`proceeding Jack Lenor Larsen, Inc. v. Chas. 0. Larson C0., 44 USPQ 2d 1950.
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`In this case, Respondent denied having received the Cancellation Petition or any
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`of the orders contained in the TTAB file.
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`Respondent chides the Board and asks them to ‘take judicial notice that problems
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`of undelivered mail are regularly reported in the press.’ Larsen, at *7. Petitioner
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`countered that ‘mailing pursuant to standard office procedure creates a
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`presumption of receipt.’ Id.
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`The Board agreed with Petitioner stating ‘The case law requires evidence only to
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`standard procedure, not what occurred in the particular case. We are aware of
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`standard Board procedures and need not receive evidence on the subject.” Id.
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`The Board also found that ‘mere denial of receipt is insufficient to rebut the
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`presumption [of delivery] in a case such as this.’ To accept the denial of receipt,
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`the Board would have to accept that the TTAB failed to properly mail all four
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`orders and that the United States Post Office would have to have failed to properly
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`deliver all four orders. Id.
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`-10-
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`

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`Defendant makes a similar claim in this case. American Plastic Equipment, Inc.
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`[APE] ‘does not recall’ having received the following documents mailed by the
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`TTAB to the Defendant’s address of record [Exhibit B]:
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`1.
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`2.
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`3.
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`Petition For Cancellation [Docket Item #2], mailed 04/11/06,
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`Board’s Decision Granting Motion [Docket Item #5] mailed 06/22/06,
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`Commissioner’s Cancellation [Docket Item #6] mailed 06/30/06.
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`Defendant also ‘does not recall’ receiving Plaintiff‘ s Motion For Default
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`Judgment which was mailed to Defendant’s address of record on May 23, 2006.
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`Plaintiff attached a Certificate of Service in the form and style required by TBMP
`
`§1 13.03 which states:
`
`113.03 - Elements of Certificate of Service
`
`The Board will accept, as prima facie proof that a party filing a document
`in a Board inter partes proceeding has served a copy of the document upon
`every other party to the proceeding, a statement signed by the filing party,
`or by its attorney or other authorized representative, clearly stating the date
`and manner in which service was made. The statement should also specify
`the name of each party or person upon whom service was made, and the
`address. The statement must appear on, or be securely attached to, the
`document being filed. If the statement is on a separate sheet attached to the
`filing, it should clearly identify the submission and proceeding to which it
`relates. TBMP §113.03, Chapter 100, page 40.
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`and effected service by first class mail as allowed by TBMP §113.04 which states:
`
`113.04 - Manner of Service
`
`When a party to an inter partes proceeding before the Board files a
`document required by 37 CFR § 2.119(a), to be served upon every other
`party to the proceeding, service may be made in any of the ways specified
`
`-11-
`
`

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`in 37 CFR § 2.119(b). They are: (1) by hand delivering a copy of the
`submission to the person being served; (2) by leaving a copy of the
`submission at the usual place of business of the person being served, with
`someone in the person's employment; (3) when the person being served
`has no usual place of business, by leaving a copy of the submission at the
`person's address, with a member of the person's family over 14 years of
`age and of discretion; (4) transmission by the "Express Mail Post Office to
`Addressee" service of the United States Postal Service or by first-class
`mail, which may also be certified or registered; and (5) transmission by
`overnight courier. TBMP §113.04, Chapter 100, page 40.
`
`It is well established at common law that “proper mailing of [petition and
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`motions] raises a rebuttable presumption of delivery to the addressee, and
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`defendant, in such situations, has the burden of presenting ‘strong and convincing’
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`evidence of the insufficiency of the service. Southern Pride, Inc. v. Turbo Tek
`
`Enterprises, Inc., 117 FRD 566, 569, 5 USPQ 1589, 1590 (D N.C. 1987) Nikwei
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`V. Ross School ofAviation, Inc., 822 F.2d 939, 941 (10th Cir. 1987),
`
`Given the Board’s recognition of its own mailing procedures and that the
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`Certificate of Service is prima facie evidence of service of the Motion for Default
`
`Judgment, Defendant, as in the Larsen case, is presumed to have received the
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`documents delivered by United States first class mail to the Defendant’s address
`
`of record with the United States Patent and Trademark Office. Consequently,
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`Defendant single, self-serving and conclusory statement that they ‘do not recall’
`
`receiving the documents does not prove lack of service as an element of excusable
`
`neglect.
`
`-12-
`
`

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`Defendant’s Failure To File A Responsive Pleading Is Not Excusable Neglect.
`
`Defendant failed to file an Answer or any other responsive pleading in the
`
`Cancellation proceeding. The Motion To Vacate claims ‘excusable neglect’ on
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`the part of the Defendant for failing to file a responsive pleading. Motion, page 2.
`
`The TTAB’s standard for defining ‘excusable neglect’ is Pioneer Investment Svcs
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`Co. v. Brunswick Assc Ltd., 507 US 380 (1993). The Board adopted this standard
`
`in Pumpkin Ltd. V. The Seed Corps, 43 USPQ 2d 1582 (1997). In Pumpkin, the
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`Board interpreted the Pioneer decision to analyze excusable neglect using the
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`following four factors:
`
`1.
`
`2.
`
`3.
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`The danger of prejudice to the nonmovant,
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`The length of delay and effect on judicial proceedings,
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`The reason for the delay, including whether it was within the reasonable
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`control of the movant, and
`
`4.
`
`Whether the movant acted in good faith.
`
`Pioneer at 397, Pumpkin at * 12.
`
`The third factor is the most critical. Pumpkin at * 16, citing, Weinstockv. Cleary,
`
`Gottlieb, Steen & Hamilton, 16 F.3d 501, 503 (2nd Cir. 1994), City ofClzanute,
`
`Kansas v. William Nat. Gas Co., 31 F.2d 1041, 1046 (10th Cir. 1994), Thompson
`
`v. E.I. duPont de Nemours & Co, Inc. 76 F.3d 530, 534 (4th Cir. 1996).
`
`-13-
`
`

`
`Defendant’s sole excuse for not filing a responsive pleading is that he ‘does not
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`recall’ receiving the petition, notices or motions filed in this action and served
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`pursuant to TTAB policies and procedures.
`
`Defendant’s attorney further chides the Board by saying, “[I]ssuance of a Notice
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`[of Default] from this Board may have alerted the Defendant that this action in
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`cancellation was pending. No Notice of Default was issued, and Defendant did
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`not become aware of this Action until after this Board entered its Default Decree
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`cancelling the Defendant’s incontestible registration.” Motion, page 2.
`
`Based on this statement, the Defendant is trying to blame the Board for its own
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`inattention and carelessness.
`
`However, Defendant’s blame is misplaced. “The issue of whether default
`
`judgment should be entered against a defendant for failure to file a timely answer
`
`to the complaint may also be raised by means other than the Board’s issuance of a
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`notice of default. For example, the plaintiflfi realizing that the defendant is in
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`default, may file a motion [or default iudgment (in which case the motion may
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`serve as a substitute for the Board ’s issuance of a notice of default).” TBMP
`
`§3 12.01, Chapter 300, page 72.
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`The Plaintiff filed and properly served the Defendant with a Motion for Default
`
`-14-
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`

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`Judgment on May 23, 2005. [Docket Item #4] The Board issued an order granting
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`that motion on June 22, 2006. [Docket Item #5]. The only rational conclusion that
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`can be drawn is that the Board found Plaintiffs Motion For Default Judgment to
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`be sufficient notice to Defendant that cancellation of the registration was
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`imminent. Consequently, Defendant’s assertion that the Board is somehow to
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`blame for their inaction and that it was out of their control is not excusable neglect
`
`under factor three of Pioneer.
`
`Defendant does not dispute the accuracy or Validity of the address of record with
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`the USPTO. Instead, Defendant states ‘the Notice was mishandled, misfiled or
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`overlooked.’ Motion, page 2.
`
`In Pumpkin, the defendant makes similar assertions, saying that ‘it is possible that
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`counsel failed to properly or timely docket [the order] .
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`.
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`.
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`. that the docketing
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`failure may have resulted from a mishandling of the docketing slips for this case,
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`or from [confusion]”. Pumpkin at * 15.
`
`Plaintiff contends that handling and filing mail in Defendant’s office can be
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`equated with docketing at an attomey’s office. Both inVolVe prioritizing and
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`archiving documents and information that may be releVant to the effectiVe
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`operation of the business.
`
`-15-
`
`

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`“The Board and its reviewing Court, have held that docketing errors and
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`breakdowns do not constitute excusable neglect.” Pumpkin, at * 16, citing
`
`Williams v. Five Platters, Inc. 510 F.2d 963, 184 USPQ 744 (CCPA 1975), Litton
`
`Business Systems Inc. v. J.G. Furniture Co., 190 USPQ 428 (TTAB 1976). Even
`
`under the more flexible and equitable application of the Pioneer factors, the
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`preceding and precedential case law is directly relevant to whether the delay was
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`caused by circumstances within the Defendant’s reasonable control. Pumpkin, at
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`*16.
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`As in Pumpkin, Defendant has failed to show through testimony, affidavit, exhibit
`
`or any other material evidence that anyone other than the Defendant had control
`
`over the procedures for handling mail at the address of record. Consequently, no
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`one but Defendant is responsible and accountable for the mishandling, misfiling
`
`or overlooking of the Petition for Cancellation and the four subsequent mailings
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`from the Board and Plaintiff This is not excusable negligence under the
`
`standards adopted by the Board.
`
`The other Pioneer factors, particularly factor two, the length of delay and its
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`potential effect on judicial proceedings, are worthy of discussion. Defendant’s
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`Answer was due on May 21, 2006. Defendant’s Motion To Vacate was filed, by
`
`mail, on August 3, 2006 [Exhibit B]. This is a delay of eleven weeks. In
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`Pumpkin, the delay was approximately fourteen weeks. Pumpkin at *20.
`
`-16-
`
`

`
`In Pumpkin, the Board stated:
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`“[I]n addition to the time between the expiration of the time for taking action and
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`the filing of the motion to reopen, the .
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`.
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`. length of the delay in proceedings also
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`must take into account the additional, unavoidable delay arising from the time
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`required for briefing and deciding the motion to reopen. The effect of such delays
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`on this proceeding, and on Board proceedings generally is not inconsiderable.
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`“More fundamentally, however, it cannot escape the notice of any .
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`.
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`. participant
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`in [Board] proceedings [is] that the Board’s steadily growing docket of active
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`cases .
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`.
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`. are increasingly straining the Board’s scarce resources. The Board, and
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`parties to Board proceedings .
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`.
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`. have an interest in minimizing the .
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`.
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`. time and
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`resources that must be expended on matters, such as contested motions to reopen,
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`which come before the Board solely as a result of sloppy practice or inattention to
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`deadlines on the part of litigants or their counsel. The Board’s interest in
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`deterring such sloppy practice weighs heavily against a finding of excusable
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`neglect, under the second Pioneer factor.” Pumpkin, at * 21.
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`Defendant is asking the Board to reopen a terminated case and expend time and
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`resources because of Defendant’s sloppy office procedures that led to the
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`statement that Defendant ‘did not recall’ receiving the Petition and four
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`subsequent mailings regarding this action causing an eleven week delay. Based
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`on the Pumpkin analysis, the second factor must weigh against the Defendant.
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`-17-
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`

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`The final Pioneer factor that is relevant is prejudice to the Plaintiff. As a result of
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`the June 30, 2006 order from the Commissioner cancelling the registration,
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`Plaintiff has acted in reliance on that cancellation in at least two actions:
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`1.
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`The Order of Cancellation was used to answer a ‘non-final’ action of
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`initial refusal to register the mark with serial number 78788519 on July 2,
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`2006. The USPTO examining attorney accepted the cancellation and
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`subsequently approved the application for publication. [Exhibit C]
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`2.
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`On July 25, 2006, the Plaintiff filed additional applications for registration
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`of marks relying on the Order of Cancellation as likelihood that the marks
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`would be approved for publication. [Exhibit D]
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`Allowing the Defendant to vacate the Default Judgment based on their own
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`sloppy and carelessness would result in significant prejudice and hardship to the
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`Plaintiff.
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`Consequently, when the Pioneer factors are weighed, all but the fourth [there is no
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`indication one way or the other of bad faith] weigh against the Defendant in that a
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`significant delay, caused by factors within control of the Defendant, resulted in
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`acts of reliance by the Plaintiff To reward the Defendant for his inattention and
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`neglect would result in fiirther delay and prejudice to the Plaintiff who, at all
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`times, acted expeditiously and correctly. Consequently, Defendant is not entitled
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`-18-
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`

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`to relief from the judgment of the Board under FRCP Rule 60(b)(l) for ‘excusable
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`neglect.’
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`“The standard for setting aside default judgment is stricter than the standard for
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`setting aside a notice of default. [O]nce default judgment has actually been
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`entered against a defendant pursuant to FRCP 55(b), the judgment may be set
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`aside only in accordance with FRCP 60(b) .
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`.
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`. This stricter standard reflects
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`public policy favoring finality ofjudgments and termination of litigation.” TBMP
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`§3l2.03, Chapter 300, page 74. See also, Waifersong, Ltd. Inc. v. Classic Music
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`Vending, 976 F.2d 290, 292 (6”‘ Cir. 1992) (“[O]nce the court has determined
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`damages and a judgment has been entered, the district court’s discretion to Vacate
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`the judgement is circumscribed by public policy favoring finality ofjudgments
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`and termination of litigation).
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`Defendant has not met the burden of establishing excusable neglect under the
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`Board’s standards enunciated in Pioneer and Pumpkin. Consequently, Defendant
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`is not entitled to relief under Rule 60(b)(l) and the Motion to Vacate Default
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`Judgment should be denied.
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`II.
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`Whether Defendant’s Att0rney’s Failure To File an Answer in the TTAB
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`Cancellation Proceeding was a Result of ‘Excusable Neglect.’
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`A.
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`Jan P. Helder’s Loss Of His Law Practice Is Not Excusable Neglect.
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`-19-
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`

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`Paragraph 8 of Defendant’s Motion To Vacate Default Judgment states:
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`“Defendant initially chose Jan P. Helder to serve as Defendant’s intellectual
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`property litigation counsel. Due to tragedy in Mr. Helder’s personal life that
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`occurred in June 2006, Mr. Helder became unable to continue serving as
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`Defendant’s attorney. Any delay caused by this tragedy should be considered
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`excusable and unavoidable. The Board’s indulgence is that regard is respectfully
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`requested.” Motion, page 2.
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`The court many properly consider attorney impairment in determining whether his
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`neglect is excusable. Goodwin v. General Motors Corp., 02-2606 at *4, 2004 US
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`Dist. Lexis 121 (D. Kan. Jan. 5, 2004). The determination is an equitable one,
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`taking account of all relevant circumstances surrounding the party’s omission. Id.
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`Consequently, it is necessary to look at the details and circumstances of Mr.
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`Helder’s s0-called ‘tragedy.’ Defendant claims this tragedy occurred in June of
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`2006. In reality, it began much earlier than that:
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`1.
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`On March 5, 2005, a grand jury for the Western District of Missouri
`returned an indictment against Jan P. Helder Jr. aka ‘trialkc’ for ‘Use of
`Interstate Facility to Attempt to Entice a Minor to Engage in Sexual
`Activity.’ This indictment resulted from actions in April 2004 where Mr.
`Held