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`Baxley
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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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`October 1, 2020
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`Cancellation No. 92074266
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`Peja Inc.
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`v.
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`Mad Italian Pizza LLC
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`Andrew P. Baxley, Interlocutory Attorney:
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`This case comes up for consideration of Petitioner’s motion (filed September 30,
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`2020) to quash a notice of a discovery deposition of Petitioner under Fed. R. Civ. P.
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`30(b)(6) that was noticed on September 22, 2020 to take place on October 1, 2020 with
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`notice of the videoconference platform being provided on September 25, 2020. In view
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`of the time-sensitive nature of the motion, the Board, on the afternoon of September
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`30, 2020, convened a telephone conference between Petitioner’s attorney Paul Murty,
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`Respondent’s attorneys Nathan P. Sudemeyer and Herbert W. Larson and the above-
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`signed Board attorney.
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`In support of the motion, Petitioner contends that the parties’ attorneys began
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`settlement discussions on September 25, 2020 and their attorneys spoke again on
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`September 28, 2020. Petitioner contends that, in the September 28, 2020
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`conversation, Respondent’s attorney requested settlement terms by close of business
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`on that day and represented that, if he received such terms, the deposition would not
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`Cancellation No. 92074266
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`go forward as noticed. Petitioner contends, however, on September 29 and 30, 2020,
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`Respondent’s attorney informed Petitioner of a change in position and refused to
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`postpone the deposition. Petitioner contends that requiring to go forward with the
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`deposition two days after Respondent’s change of position constitutes unreasonable
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`notice and therefore asks that the notice of deposition be quashed.
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`In response, Respondent contends that it did not agree to postpone the deposition;
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`that it wants to move forward with this proceeding while ne gotiating to settle; and
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`that, by seeking to postpone the deposition at issue, Petitioner is seeking to prevent
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`Respondent from taking discovery prior to the October 2, 2020 due date for
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`Respondent’s brief in response to Petitioner’s motion to intervene in a civil action in
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`the United States District Court for the Middle District of Florida between
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`Respondent and Petitioner’s licensee, 5 TTABVUE.
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`The Board finds that the service of the notice of deposition nine days prior to the
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`scheduled taking thereof, with notice of the videoconferencing platform being
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`provided six days prior was reasonable. See Sunrider Corp. v. Raats, 83 USPQ2d
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`1648, 1653 (TTAB 2007) (six days’ notice deemed reasonable). In addition, the
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`existence of settlement negotiations, without more, would not warrant delaying
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`preparation for the noticed deposition.1 See Fairline Boats plc v. New Howmar Boats
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`Corp., 59 USPQ2d 1479, 1480 (TTAB 2000). In view of the parties’ disagreement as
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`1 The safest course of action for a party seeking to settle a proceeding is to immediately seek
`its adversary’s permission to file a consented motion to suspend the proceeding for settlement
`negotiations. If no motion to suspend is filed, dates in the proceeding continue to run.
`See Instruments SA Inc. v. ASI Instruments Inc., 53 USPQ2d 1925, 1927 (TTAB 2000).
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`2
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`Cancellation No. 92074266
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`to whether Respondent agreed to postpone the deposition and the absence of any
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`corroborating e-mail supporting such alleged agreement, the Board finds that the
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`Rule 30(b)(6) of Petitioner should go forward as noticed.2
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`In view thereof, the motion to quash is denied. Dates remain as set in the Board
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`notice instituting this proceeding.
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`2 Once the district court decides the motion to intervene in the civil action, Respondent should
`file a copy of relevant documents in that civil action so that the Board can consider whether
`suspension of this proceeding under Trademark Rule 2.117(a) is warranted.
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`3
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