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`CME
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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
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`Mailed: June 14, 2017
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`Cancellation No. 92065363
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`Motherlode Provisions, LLC
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`v.
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`By the Trademark Trial and Appeal Board:
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`Bouilli, Inc. d/b/a Smugglers Brewpub
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`This case now comes up on Respondent’s motion to dismiss, filed March 17,
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`2017, which is fully briefed, and Respondent’s amendments under Section 7 of the
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`Trademark Act, filed March 10 and 17, 2017 through the Trademark Electronic
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`Application System (“TEAS”).1
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`Motion to Dismiss
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`Except as set forth in footnote 7, infra, the Board has carefully considered the
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`parties’ arguments with respect to Respondent’s motion to dismiss and does not
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`recount the facts or arguments here, except as necessary to explain the Board’s
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`decision.
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`A motion to dismiss under Fed. R. Civ. P. 12(b)(6) is a test of the sufficiency of
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`the complaint. To survive a motion to dismiss, a petitioner need only allege
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`1 The Board notes Petitioner’s change of correspondence address, filed April 3, 2017, and
`has updated the record accordingly.
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`Cancellation No. 92065363
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`sufficient factual matter as would, if proved, establish that: (1) it has standing to
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`maintain the claims; and (2) a valid ground exists for cancelling the mark. See
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`Lipton Indus., Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185, 187 (CCPA
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`1982). “For purposes of determining the motion, all of the petitioner’s well-pleaded
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`allegations must be accepted as true, and the [claims] must be construed in the
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`light most favorable to petitioner. The pleading must be construed so as to do
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`justice, as required by Fed. R. Civ. P. 8(e).” Petroleos Mexicanos v. Intermix SA, 97
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`USPQ2d 1403, 1405 (TTAB 2010).
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`The purpose of the standing requirement is to prevent mere intermeddlers from
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`initiating proceedings. Accordingly, to sufficiently allege standing within the
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`meaning of Section 14 of the Trademark Act, 15 U.S.C. § 1064, a petitioner must
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`plead facts sufficient to show that it has a direct and personal stake in the outcome
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`of the cancellation proceeding and a reasonable basis for its belief that it will be
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`damaged. See Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d 1023, 1025-26 (Fed.
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`Cir. 1999). The focus must be on whether the petitioner has pleaded a reasonable
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`basis for its belief in damage; there is no requirement that any actual “damage” be
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`pleaded to establish standing or even to prevail in a cancellation proceeding.
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`As for whether a petitioner has sufficiently alleged a valid ground for
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`cancellation, the complaint “must contain sufficient factual matter, accepted as
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`true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
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`U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
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`In particular, a petitioner must allege well-pleaded factual matter and more than
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`Cancellation No. 92065363
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`“[t]hreadbare recitals of the elements of a cause of action, supported by mere
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`conclusory statements,” to state a claim plausible on its face. Id. (citing Twombly,
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`550 U.S. at 555).
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`Petitioner seeks cancellation of Registration No. 5017164 for the mark below for
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`“brewpub services.”2
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`The ESTTA cover sheet to the petition to cancel, which is an integral part of the
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`complaint, identifies six claims: (1) priority and likelihood of confusion;3 (2) nonuse;
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`(3) dilution by blurring and tarnishment; (4) non-ownership; (5) misrepresentation
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`of source; and (6) fraud. Hunt Control Sys. Inc. v. Koninklijke Philips Elecs. N.V., 98
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`USPQ2d 1558, 1561 (TTAB 2011); PPG Indus. Inc. v. Guardian Indus. Corp., 73
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`USPQ2d 1926, 1927-28 (TTAB 2005) (recognizing that the ESTTA “filing form and
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`the attachment thereto are considered a single, integrated filing”).
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`1. Standing
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`2 Filed December 17, 2015 based on an allegation of use on July 31, 2013; issued August 9,
`2016; “brewpub” disclaimed; the colors yellow, black and white are claimed as features of
`the mark.
`3 The ESTTA coversheet identifies “violation of common law trademark rights” as another
`claim. The Board treats this allegation not as a separate claim, but as part of Petitioner’s
`priority and likelihood of confusion claim.
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` -3-
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`Cancellation No. 92065363
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`Petitioner alleges that the involved mark is “based on artwork and designs
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`owned by Petitioner.” 1 TTABVUE 10-11, ¶ 46. This allegation is sufficient to plead
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`that Petitioner has a direct and personal stake in the outcome of the cancellation
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`proceeding, and therefore, has standing. Carano v. Vina Concha Y Toro S.A., 67
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`USPQ2d 1149, 1151 (TTAB 2003). Because Petitioner has properly pleaded its
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`standing, it has the right to assert any legally sufficient claims within the Board’s
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`jurisdiction. Corporacion Habanos SA v. Rodriquez, 99 USPQ2d 1873, 1877 (TTAB
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`2011).
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`2. Priority and Likelihood of Confusion
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`Petitioner alleges priority based on ownership of two prior registrations, set
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`forth below,4 and prior common law use of the registered marks for the goods
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`identified in the pleaded registrations as well as “café and restaurant services.”
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`• Registration No. 4473859 for the mark below for “non-alcoholic cocktail mixes
`made wholly of natural ingredients.”5
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`4 The pleaded registrations are of record in this proceeding because Petitioner attached to
`its complaint TSDR printouts showing the current status and title of the pleaded
`registrations. Trademark Rule 2.122(d)(1).
`5 Issued January 28, 2014; disclaimer of “provisions,” “one hundred percent natural
`ingredients” and “Rocky Mountain style Bloody Mary mix.”
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`Cancellation No. 92065363
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`
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`• Registration No. 4477110 for the mark below for “barbeque sauce; hot sauce;
`steak sauce; all of the foregoing made wholly of natural ingredients.”
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`1 TTABVUE 5-6 and 14, ¶¶ 4-8 and 59-63.
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`Reading the petition to cancel as a whole,6 Petitioner alleges that confusion
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`between the parties’ marks is likely because the design in Respondent’s mark is a
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`“direct copy” of the design in Petitioner’s pleaded marks, the parties’ marks are
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`“strikingly similar,” the involved registration covers “brewpub services” while
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`Petitioner uses its pleaded marks for café and restaurant services and has used and
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`registered its pleaded marks for non-alcoholic cocktail mixes, barbeque sauce, hot
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`sauce, and steak sauce, and Respondent’s brewpub services are “within the zone of
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`natural expansion of the products covered by [the pleaded marks].” Id. at 5-8 and
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`14, ¶¶ 2, 4-7, 9, 13, 23, and 64-65.
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`6 In determining a motion to dismiss, “[t]he pleading must be examined in its entirety,
`construing the allegations therein liberally, as required by Fed. R. Civ. P. 8(f), to determine
`whether it contains any allegations which, if proved, would entitle plaintiff to the relief
`sought.” IdeasOne Inc. v. Nationwide Better Health Inc., 89 USPQ2d 1952, 1954 (TTAB
`2009) (emphasis added).
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` -5-
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`Cancellation No. 92065363
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`The foregoing factual allegations are sufficient to plead a plausible claim of
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`priority and likelihood under Section 2(d) of the Trademark Act.7 Nike, Inc. v. Palm
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`Beach Crossfit Inc., 116 USPQ2d 1025, 1030 (TTAB 2015); Wet Seal, Inc. v. FD
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`Mgmt., Inc., 82 USPQ2d 1629, 1639-40 n.21 (TTAB 2007) (likelihood of confusion
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`may be pleaded generally). That is all that is required at the pleading stage.8
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`3. Nonuse
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`As the basis for its nonuse claim, Petitioner alleges that the involved mark was
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`not in use for brewpub services as of July 31, 2013 – the date of first use claimed in
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`the underlying application. 1 TTABVUE 11-12, ¶¶ 51-57. This allegation is not
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`sufficient to state a claim for nonuse. CarX Serv. Sys., Inc. v. Exxon Corp., 215
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`USPQ 345, 351 (TTAB 1982). To plead nonuse, a claimant must allege that the
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`mark was not in use for the identified goods/services when the use-based application
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`was filed. Id. The petition to cancel does not include any such allegation.9
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`7 Petitioner’s Section 2(d) allegations set forth an additional basis for Petitioner’s standing.
`Barbara’s Bakery Inc. v. Landesman, 82 USPQ2d 1283, 1285 (TTAB 2007).
`8 The Board has not considered Respondent’s arguments that there is no “evidence” to
`support Petitioner’s Section 2(d) allegations because such arguments are premature. At the
`motion to dismiss stage, the Board is concerned only with whether Petitioner has pleaded a
`legally sufficient claim. Whether Petitioner can prevail on its Section 2(d) claim is a matter
`to be determined at final hearing after the introduction of evidence at trial. See, e.g.,
`Advanced Cardiovascular Sys. Inc. v. SciMed Life Sys. Inc., 26 USPQ2d 1038, 1041 (Fed.
`Cir. 1993) (“A motion made under Rule 12(b)(6) challenges the legal theory of the
`complaint, not the sufficiency of any evidence that might be adduced.”); Nike, Inc., 116
`USPQ2d at 1030 (“Whether Opposer is able to prove its allegations regarding the
`relatedness of the parties’ respective goods and services is not a matter for determination
`on a motion to dismiss.”).
`9 Indeed, Petitioner may not have a factual basis for pleading a claim of nonuse as
`Petitioner has alleged that the involved mark appeared on Respondent’s website for its
`brewpub as of May 10, 2015, which is before the December 17, 2015 filing date of the
`underlying application. 1 TTABVUE 11-13, ¶¶ 52 and 54.
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`Cancellation No. 92065363
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`4. Dilution
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`To sufficiently allege a claim of dilution, a claimant must allege that: (1) it owns
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`a famous mark that is distinctive; (2) the defendant is using a mark in commerce
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`that allegedly dilutes the claimant’s famous mark; (3) the defendant began use of its
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`mark after the claimant’s mark became famous; and (4) the defendant’s use of its
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`mark is likely to cause dilution by blurring or tarnishment. Coach Servs. Inc. v.
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`Triumph Learning LLC, 101 USPQ2d 1713, 1723-24 (Fed. Cir. 2012). Although
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`Petitioner has identified dilution as a claim in the ESTTA cover sheet to the
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`petition to cancel, Petitioner has failed to plead that its marks are famous and
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`distinctive,10 that they became famous prior to any date of priority on which
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`Respondent can rely, and that Respondent’s mark is likely to cause dilution by
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`blurring or tarnishment.
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`5. Non-ownership
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`Petitioner alleges that Respondent is not the owner of the involved mark because
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`Respondent does not own and is not entitled to use the design portion of
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`Respondent’s mark. More specifically, Petitioner alleges that Petitioner’s marks are
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`“derived” from artwork created by Alfredo Rodriguez, 1 TTABVUE 8, ¶ 26; that
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`Petitioner has an exclusive license from Rodriguez “that dates back to at least July
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`13, 2012[,]” to use Rodriguez’s artwork in Petitioner’s marks, id. at ¶¶ 26-27; that
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`Respondent had access to and incorporated Petitioner’s design in Respondent’s
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`10 “Under the [Trademark Dilution Revision Act of 2006], a mark is famous if it is widely
`recognized by the general consuming public of the United States as a designation of source
`of the goods or services of the mark’s owner…. It is well-established that dilution fame is
`difficult to prove.” Coach Servs., 101 USPQ2d at 1724 (emphasis added).
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` -7-
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`Cancellation No. 92065363
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`mark, id. at 6-8, ¶¶ 11, 13 and 24-25; that after Petitioner sent a cease and desist
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`letter to Respondent, Respondent entered into a license agreement with Mr.
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`Rodriguez, id. at 10, ¶ 39; that this license agreement “is invalid and
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`unenforceable,” id. at ¶ 42; and that Respondent’s use of Petitioner’s design
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`“constitute[s] copyright infringement under state and federal law.” Id. at 8-9, ¶¶ 28
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`and 36.
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`The Board has no jurisdiction to determine copyright infringement. Carano, 67
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`USPQ2d at 1151; TBMP § 102.01 (Jan. 2017). Accordingly, and because Petitioner’s
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`non-ownership claim is inextricably intertwined with Petitioner’s allegations of
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`copyright infringement, Petitioner has failed to state a claim for non-ownership
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`upon which relief can be granted.11 Carano, 67 USPQ2d at 1152.
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`6. Misrepresentation of Source
`A misrepresentation of source claim lies where “it is deliberately misrepresented
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`by or with the consent of the registrant that the goods and/or service originate from
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`a manufacturer or other entity when in fact those goods and/or services originate
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`from another party.” Otto Int’l Inc. v. Otto Kern GmbH, 83 USPQ2d 1861, 1863
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`(TTAB 2007). To state such a claim, a petitioner must allege facts beyond those
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`“that typically support a claim of likelihood of confusion under Section 2(d)[.]” Id. at
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`1864. Specifically, a petitioner must plead facts reflecting the respondent’s
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`deliberate misrepresentation of the source of respondent’s goods or services,
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`11 The Board, however, will consider Petitioner’s copyright allegations to the extent they
`relate to Petitioner’s Section 2(d) claim, and any other legally sufficient claims Petitioner
`may plead that are within the Board’s jurisdiction. Knickerbocker Toy Co. v. Faultless
`Starch Co., 467 F.2d 501, 175 USPQ 417, 423 (CCPA 1972).
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` -8-
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`Cancellation No. 92065363
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`respondent’s blatant misuse of the mark in a manner calculated to trade on the
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`goodwill and reputation of petitioner, or conduct amounting to the deliberate
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`passing-off of respondent’s goods or services as those of petitioner. Id. at 1863-64.
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`Petitioner alleges that Respondent copied the design element of Petitioner’s
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`pleaded marks but Petitioner has not alleged that Respondent did so to deceive the
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`public into thinking that Respondent’s services actually emanate from Petitioner.
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`Id. at 1864. Nor has Petitioner alleged conduct other than copying Petitioner’s
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`design that would support a claim of misrepresentation of source. McDonnell
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`Douglas Corp. v. Nat’l Data Corp., 228 USPQ 45, 47
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`(TTAB 1985)
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`(misrepresentation of source not pleaded where complaint did not include specific
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`facts reflecting respondent’s activity that, if proved, “would amount to an attempt to
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`create the impression that petitioner is the source of respondent’s services.”); cf.
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`Bayer Consumer Care AG v. Belmora LLC, 90 USPQ2d 1587, 1592 (TTAB 2009)
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`(finding misrepresentation of source claim sufficient where petitioner pleaded
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`“copying … well beyond ‘merely’ reproducing petitioner’s alleged mark,” including
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`copying petitioner’s color scheme and using an identical font, and specifically
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`alleged that respondent did so to misrepresent “that respondent’s product is from
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`the same source as petitioner’s product”); E.E. Dickinson Co. v. T.N. Dickinson Co.,
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`221 USPQ 713, 715 (TTAB 1984) (misrepresentation of source adequately pleaded
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`where plaintiff alleged that “registrant marketed its goods using a yellow label with
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`red bull’s eye design copied from plaintiff’s trade dress, packaged its goods in a
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`bottle similar to plaintiff’s packaging, and used its mark in a form which obscured
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`Cancellation No. 92065363
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`the ‘T.N.’ portion of T.N. DICKINSON’S so as to colorably imitate and appropriate
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`petitioner’s DICKINSON’S mark”).
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`Fraud
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`Turning to Petitioner’s fraud allegations, fraud in procuring a trademark
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`registration occurs when an applicant for registration knowingly makes a specific
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`false, material representation of fact in connection with an application to register,
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`with the intent of obtaining a registration to which it is otherwise not entitled. In re
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`Bose Corp., 580 F.3d 1240, 91 USPQ2d 1938, 1939 (Fed. Cir. 2009); Qualcomm Inc.
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`v. FLO Corp., 93 USPQ2d 1768, 1770 (TTAB 2010). A claim of fraud must set forth
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`all elements of the claim with a heightened degree of particularity in compliance
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`with Fed. R. Civ. P. 9(b). Asian and W. Classics B.V. v. Selkow, 92 USPQ2d 1478,
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`1478 (TTAB 2009). Indeed, “the pleadings [must] contain explicit rather than
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`implied expressions of the circumstances constituting the fraud.” Id. As such,
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`“allegations made ‘on information and belief’ must be accompanied by a statement
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`of facts upon which the belief is founded.” Id. at 1479. In addition, intent to deceive
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`the USPTO is a specific element of a fraud claim, and must be sufficiently pleaded.
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`In re Bose, 91 USPQ2d at 1939-1940; Asian and W. Classics, 92 USPQ2d at 1479.
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`Petitioner’s allegations are construed as alleging fraud on three theories,
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`namely, that: (1) Respondent is not, and was not at the time it filed the underlying
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`application, the owner of the involved mark; (3) Respondent was not using its mark
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`as of the dates of first use alleged in the underlying application; and (3) when
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`Respondent signed the declaration in support of the application underlying the
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`Cancellation No. 92065363
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`involved registration, Respondent knew that Petitioner had prior rights in the
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`pleaded marks and believed that use of Respondent’s mark would be likely to cause
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`confusion. None of Petitioner’s allegations are sufficient to set forth a viable claim of
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`fraud.
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`Petitioner’s claim of fraud based on non-ownership is grounded in allegations
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`that Petitioner owns the design in Respondent’s mark and that Respondent’s use of
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`the design constitutes copyright infringement. As explained supra, page 7-8,
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`Petitioner’s allegations of non-ownership based on copyright infringement fail to
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`state a claim upon which relief can be granted because copyright infringement is
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`outside of the Board’s limited jurisdiction. Accordingly, Petitioner’s claim of fraud
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`based on the same allegations also fails to state a viable claim for relief.
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`As to the second theory, a date of first use is not material to the USPTO’s
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`decision to issue a registration. As such, even if the dates of first use claimed in the
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`underlying application are incorrect, this would not constitute fraud. See Hiraga v.
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`Arena, 90 USPQ2d 1102, 1107 (TTAB 2009) (recognizing that the critical issue is
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`whether the mark was in use in commerce in connection with the identified goods as
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`of the filing date of the use-based application).
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`To adequately plead a claim of fraud on the third theory, Petitioner must allege
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`that: (1) there was in fact another use of the same or a confusingly similar mark at
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`the time the oath was signed; (2) the other user had legal rights superior to
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`Respondent’s; (3) Respondent knew that the other user had rights in the mark
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`superior to it, and either believed that a likelihood of confusion would result from
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` -11-
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`Cancellation No. 92065363
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`the Respondent’s use of its mark or had no reasonable basis for believing otherwise;
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`and (4) Respondent, in failing to disclose these facts to the Patent and Trademark
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`Office, intended to procure a registration to which it was not entitled. Intellimedia
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`Sports, Inc. v. Intellimedia Corp., 43 USPQ2d 1203, 1205 (TTAB 1997).
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`With respect to the element three, the Board has stated that a plaintiff:
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`must plead particular facts which, if proven, would establish that, as of
`the application filing date, the defendant believed that the third party
`had superior or clearly established rights and that a likelihood of
`confusion would result from [the defendant’s] use of its mark.
`Alternatively, a plaintiff must plead particular facts (e.g. substantial
`identity between the parties’ marks and goods or services, or a prior
`court decree or agreement of the parties which clearly establishes the
`other person’s rights in the mark), which, if proven, would establish
`that, at the time the application was filed, defendant had no
`reasonable basis for its averred belief that no other person had a right
`to use the same or a confusingly similar mark on or in connection with
`the goods or services identified in the application.
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`Intellimedia Sports, 43 USPQ2d at 1207.
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`Petitioner has not sufficiently pleaded element three because Petitioner has not
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`alleged any specific facts which, if proven, would establish that when Respondent
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`filed its application, Respondent subjectively believed that Petitioner had superior
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`or clearly established rights and that a likelihood of confusion would result from
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`Respondent’s use of Respondent’s mark.12 Indeed, Petitioner has pleaded facts
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`supporting that Respondent did not subjectively believe that Petitioner had
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`superior rights and that Respondent’s mark would cause a likelihood of confusion.
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`Specifically, Petitioner has pleaded that on November 6, 2015, it sent Respondent a
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`12 Knowledge of another party’s use of the mark is not equivalent to knowledge of another
`party’s superior rights to the mark. See Metro Traffic Control v. Shadow Network Inc., 41
`USPQ2d 1369, 1373 (Fed. Cir. 1997).
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` -12-
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`Cancellation No. 92065363
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`cease and desist letter, and that on November 11, 2015 – a little more than one
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`month before filing the underlying application – Respondent responded to the letter
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`“indicating that Respondent believed it had a right to continue to use [the involved]
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`mark.” 1 TTABVUE 7, ¶ 16. Petitioner also has not pleaded that: (1) the parties’
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`marks and goods/services are substantially identical; or (2) there is a prior court
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`decree or agreement between the parties clearly establishing Petitioner’s rights in
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`Petitioner’s marks.
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`Because Petitioner has not pleaded element three, it has necessarily failed to
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`plead element four. Intellimedia Sports, 43 USPQ2d at 1208.
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`7. Summary
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`In view of the foregoing, Respondent’s motion to dismiss is granted, in part,
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`with respect to the claims of nonuse, dilution, non-ownership, misrepresentation of
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`source, and fraud, and these claims are dismissed. The motion is denied, in part,
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`with respect to Petitioner’s Section 2(d) claim because Petitioner has sufficiently
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`pleaded its standing as well as priority and likelihood of confusion.
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`If the facts warrant, Petitioner is allowed until July 8, 2017 to file an amended
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`petition to cancel that includes sufficiently pleaded claims for nonuse, dilution,
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`misrepresentation of source, and fraud on the ground that Respondent knew that
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`Petitioner had rights in the mark superior to it, and either subjectively believed
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`that a likelihood of confusion would result from the Respondent’s use of its mark or
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`had no reasonable basis for believing otherwise.13 Respondent is allowed until July
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`13 To be clear, Petitioner may not attempt to replead claims of: (1) nonuse based on incorrect
`first use dates; (2) fraud based on incorrect first use dates; (3) non-ownership based on
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`Cancellation No. 92065363
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`29, 2017, to file an answer to any amended petition to cancel filed pursuant to this
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`order, or if Petitioner does not file an amended complaint, to file an answer to
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`paragraphs 1-50, 58-65 and 75-76 in the original petition to cancel.
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`Respondent’s Section 7 Amendments
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`The Board has jurisdiction over involved Registration No. 5017164. According,
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`any proposed amendments to the registration must be filed with the Board and
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`served on counsel for Petitioner. As a one-time courtesy, the Board has scanned
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`Respondent’s Section 7 amendments into the file for the Board proceeding (9
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`TTABVUE and 10 TTABVUE). Copies of the proposed amendments may be viewed
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`at:
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`http://ttabvue.uspto.gov/ttabvue/v?pno=92065363&pty=CAN&eno=9
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`and
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`http://ttabvue.uspto.gov/ttabvue/v?pno=92065363&pty=CAN&eno=10
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`By the proposed amendments, Respondent seeks to amend its alleged dates of
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`first use and first use in commerce. Petitioner is allowed until July 8, 2017 to file a
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`response to the proposed amendments.
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`Regardless of whether Petitioner responds, the Board, in accordance with its
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`standard practice, defers consideration of the proposed amendments until final
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`decision. Embarcadero Techs. Inc. v. RStudio Inc., 105 USPQ2d 1825, 1828 (TTAB
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`2013); Fort Howard Paper Co. v. C.V. Gamina Inc., 4 USPQ2d 1552 (TTAB 1987)
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`(“[I]t is the practice of the Board to defer ruling on motions to amend the dates of
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`purported copyright infringement; or (4) fraud based on non-ownership due to purported
`copyright infringement.
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` -14-
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`Cancellation No. 92065363
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`first use set forth in an application to register until after final hearing. Such
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`motions shall be granted only if the proposed amendment is established by, or is not
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`inconsistent with, evidence adduced during the testimony period.”).
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`Proceedings are resumed and dates are reset as follows:
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`Time to File Amended Petition to Cancel14
`Time to Answer
`Deadline for Discovery Conference
`Discovery Opens
`Initial Disclosures Due
`Expert Disclosures Due
`Discovery Closes
`Plaintiff’s Pretrial Disclosures Due
`Plaintiff’s 30-day Trial Period Ends
`Defendant’s Pretrial Disclosures Due
`Defendant’s 30-day Trial Period Ends
`Plaintiff’s Rebuttal Disclosures Due
`Plaintiff’s 15-day Rebuttal Period Ends
`BRIEFS SHALL BE DUE AS FOLLOWS:
`Plaintiff’s Main Brief Due
`Defendant’s Main Brief Due
`Plaintiff’s Reply Brief Due
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`
`July 8, 2017
`July 29, 2017
`August 28, 2017
`August 28, 2017
`September 27, 2017
`January 25, 2018
`February 24, 2018
`April 10, 2018
`May 25, 2018
`June 9, 2018
`July 24, 2018
`August 8, 2018
`September 7, 2018
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`November 6, 2018
`December 6, 2018
`December 21, 2018
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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
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`testimony 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, the
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`manner and timing of taking testimony, matters in evidence, and the procedures for
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`submitting and serving testimony and other evidence, including affidavits,
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`14 July 8, 2017 is also the deadline for Petitioner to respond to Respondent’s proposed
`Section 7 amendments.
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`Cancellation No. 92065363
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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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