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`
`THIS ORDER IS NOT A
`PRECEDENT OF THE
`TTAB
`
`Webster
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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
`
`February 23, 2023
`
`Cancellation No. 92081010
`
`EDGE Games, Inc.
`
`v.
`
`The Giving Back Fund, Inc.
`
`
`
`By the Trademark Trial and Appeal Board:
`
`
`On January 25, 2023, the Board issued a notice of default in this proceeding in
`
`view of Respondent’s failure to file an answer to the petition for cancellation by the
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`answer due date.1 The Board allowed Respondent 30 days from the mailing date of
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`the notice to show cause why judgment should not be entered against it.
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`On February 8, 2023, Respondent filed a combined motion to set aside notice of
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`default, motion to reopen time to file an answer, and motion to substitute an assigned
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`party.2 On February 21, 2023, the Board, without waiting for a response from
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`Petitioner, issued an order finding that Respondent had shown good cause to set aside
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`the notice of default, granting Respondent’s motion to substitute, and resetting the
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`1 The deadline to answer the petition set in the Notice of Institution was December 27, 2022.
`2 TTABVUE 4.
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`2 Because the Board would not set aside default without allowing time to file an answer, the
`motion to set aside default and motion to reopen time to answer are, in essence, one motion.
`
`
`
`
`
`Cancellation No. 92081010
`
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`time for Respondent to file its answer. 8 TTABVUE 5-6. The same day, Petitioner
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`filed a brief in opposition to Respondent’s combined motions. The Board now takes up
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`Petitioner’s filing.
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`As an initial matter, because the Board had already issued a decision on
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`Respondent’s response to the notice and motions prior to receiving Petitioner’s
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`response to Respondent’s motions, the Board construes Petitioner’s filing as a request
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`for reconsideration of the February 21, 2023 order. The basis for a request for
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`reconsideration under Trademark Rule 2.127(b), 37 C.F.R. § 2.127(b), is that, based
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`on the facts before it and the prevailing authorities, the Board erred in reaching the
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`order or decision it issued. Guess? IP Holder LP v. Knowluxe LLC, 116 USPQ2d 2018,
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`2019 (TTAB 2015). See TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE
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`§ 518 (2022).
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`In its construed request for reconsideration, Petitioner states that “there is
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`absolutely no evidence before the Board that any assignment of the trademark in
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`question took place on March 1, 2022 or at any other time prior to February 8, 2023,
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`other than the date being stated in the alleged February 2023 assignment.” 9
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`TTABVUE 2. Petitioner argues that “in the absence of proof that an assignment
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`actually did take place on March 1, 2022, it must be assumed that the parties did not
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`do any such assignment prior to February 8, 2023 and … are fraudulently seeking to
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`deceive the Board into believing that an assignment took place in the past ….” Id. at
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`2-3.
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`
`
`2
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`
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`Cancellation No. 92081010
`
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`Petitioner’s arguments are unsupported and have no basis in fact or law. With its
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`filing, Respondent submitted a copy of the assignment document signed by an officer
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`of the prior owner and/or assignor. The document complies with the requirements of
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`15 U.S.C. § 1060(a), which states that an assignment of a registered mark shall be
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`“in writing duly executed.”3 Thus, evidence of the assignment was clearly submitted.
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`“[T]he United States Patent and Trademark Office does not investigate or evaluate
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`the validity of assignments.” TRADEMARK MANUAL OF EXAMINING PROCEDURE (TMEP)
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`§ 501.01(a) (July 2022). Moreover, fraud under Fed. R. Civ. P. 9(b) is a special matter
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`that must be proved by the party making the allegation by “clear and convincing
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`evidence, leaving nothing to speculation, conjecture or surmise.” Sinclair Oil Corp. v.
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`Kendrick, 85 USPQ2d 1032, (TTAB 2007) (citing Smith Int’l, Inc. v. Olin Corp., 209
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`USPQ 1033, 1035) (TTAB 1981)). Thus, the Board may not assume that Respondent
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`has committed fraud, particularly when Respondent complied with the requirements
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`for filing an assignment. See id. (“Any doubt must be resolved against the party
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`making the [fraud] claim.”). In view of the foregoing, Petitioner has failed to show
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`that the Board erred in granting Respondent’s motion to substitute the assignee.4
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`In addition, Petitioner has not shown and does not even argue that Respondent’s
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`delay in filing an answer was willful or the result of gross neglect, that Petitioner will
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`be substantially prejudiced by the minimal delay, or that Respondent does not have
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`3 Indeed, the Assignment Recordation Branch of the USPTO accepted the document as
`evidence of the assignment.
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`4 Petitioner’s unauthenticated snap shot of a page from the App Store does not establish that
`the registration was not assigned.
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`
`
`3
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`
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`Cancellation No. 92081010
`
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`a meritorious defense to the petition for cancellation. See DeLorme Publ’g Co. v.
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`Eartha’s Inc., 60 USPQ2d 1222, 1224 (TTAB 2000) (discussing factors considered for
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`setting aside default); see e.g., Fred Hayman Beverly Hills, Inc. v. Jacques Bernier,
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`Inc., 21 USPQ2d 1556, 1557 (TTAB 1991) (failure to answer due to inadvertence on
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`part of applicant’s counsel; answer had been prepared and reviewed by applicant but
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`counsel inadvertently failed to file it; nine-day delay would cause minimal prejudice).
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`Thus, even if the Board had considered Petitioner’s response prior to issuing the
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`February 8, 2023 order setting aside the notice of default, the decision would not have
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`changed.5 See TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP)
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`§ 312.02 (2022) (“[T]he Board is very reluctant to enter a default judgment for failure
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`to file a timely answer, and tends to resolve any doubt on the matter in favor of the
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`defendant.”).
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`Because Petitioner has failed to show that the Board erred in reaching its decision
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`to grant Respondent’s motion or set aside the notice of default, Petitioner’s construed
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`request for reconsideration of the February 8, 2023 order is DENIED.
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`Petitioner is advised that compliance with the Trademark Rules of Practice, and
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`where applicable, the Federal Rules of Civil Procedure, is expected of all parties
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`before the Board, whether or not they are represented by counsel.
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`Respondent’s answer deadline and all proceeding dates remain as reset in the
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`February 8, 2023 order.
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`5 The Board notes that there is nothing in the Board’s order that indicates that the stated
`date of the assignment (March 1, 2022) was in any way material to the Board’s decision to
`find good cause to set aside the notice of default. See 8 TTABVUE 2.
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`
`
`4
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`
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