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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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`February 21, 2023
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`Cancellation No. 92081010
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`Edge Games, Inc.
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`v.
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`The Giving Back Fund, Inc.
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`By the Board:
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`The Board notes Respondent’s February 8, 2023 timely response to the Board’s
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`January 25, 2023 notice of default. The response includes a motion to set aside the
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`notice of default, motion for leave to reopen time to file an answer, and motion to
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`substitute party.
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`Notice of Default
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`In its response to the notice of default, Respondent states that the delay in filing
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`the answer was due to The Giving Back Fund, Inc., the assignee of Community
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`Initiatives, having not received timely notice of the Petition for Cancellation from its
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`predecessor in interest. Respondent also states certain circumstances associated
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`therewith.
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` As a general rule, good cause to set aside a defendant’s default will be found where
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`the defendant’s delay has not been willful or in bad faith, when prejudice to the
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`Cancellation No. 92081010
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`plaintiff is lacking, and where defendant has a meritorious defense to the action. Fred
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`Hayman Beverly Hills, Inc. v. Jacques Bernier, Inc., 21 USPQ2d 1556 (TTAB 1991).
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`Moreover, because it is the policy of the Board to decide cases on their merits, the
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`Board is reluctant to enter default judgment for failure to file a timely answer, and
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`tends to resolve any doubt on the matter in favor of the defendant. Paolo’s Associates
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`Limited Partnership v. Paolo Bodo, 21 USPQ2d 1899 (Comm’r 1990). See also TBMP
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`§ 312.02.
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`Here, the record does not show that Respondent’s failure to timely answer the
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`petition to cancel was willful or in bad faith. The record does not show that Petitioner
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`will suffer prejudice, given that this proceeding is in its very early stages and the
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`delay occasioned by Respondent’s default has been minimal. Based on the record and
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`these findings, Respondent has shown the requisite good cause to set aside the notice
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`of default for failure to file a timely answer.
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`Accordingly, the Board’s notice of default is hereby set aside, and judgment will
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`not be entered against Respondent on the basis of default.
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`The Board grants the request to reopen and allows time for Respondent to file an
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`answer, as set forth below.
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`Notwithstanding the ruling to set aside the notice of default, Respondent is
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`advised to adhere to all deadlines, including discovery and trial deadlines, and is
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`expected to remain abreast of this proceeding through accessing TTABVUE. 2
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`TTABVUE 1. TBMP § 110.01. The Board may not be inclined to again rule with a
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`liberal approach in the event that Respondent fails to meet a future deadline.
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`2
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`Cancellation No. 92081010
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`Motion to Substitute
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`The USPTO records for Respondent’s Registration No. 5944855 reflect that on
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`March 1, 2022 the registration was assigned from Community Initiatives to The
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`Giving Back Fund, Inc., and that said assignment was recorded on February 8, 2023
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`at Reel/Frame 7964/0405. Also, Respondent submitted documentation in the form of
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`the Confirmation Receipt issued through the Electronic Trademark Assignment
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`System. 7 TTABVUE 8.
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`When there has been an assignment of a mark that is the subject of, or relied upon
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`in, an inter partes proceeding before the Board, the assignee may be joined or
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`substituted, as may be appropriate, upon motion granted by the Board. The assignee
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`may be substituted as a party if the assignment occurred prior to the commencement
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`of the proceeding. TBMP § 512.01.
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`The assignment occurred prior to the commencement of this proceeding.
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`Accordingly, substitution of the party is appropriate. TBMP § 512.01. The Giving
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`Back Fund, Inc. is hereby substituted as party defendant (Respondent) in this
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`proceeding. The Board’s record herein has been amended to reflect this substitution
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`of party.
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`Schedule
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`The failure to answer tolled all deadlines, including the parties’ obligation to
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`conduct the required discovery and settlement conference, until resolution of the
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`issue of Respondent’s default. Trademark Rule 2.114(a); TBMP §§ 312.01 and 508.
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`3
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`Cancellation No. 92081010
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`Proceedings are resumed. Respondent is allowed until thirty days from the
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`date of this order to file an answer. An answer must be filed through ESTTA, the
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`Board’s Electronic System for Trademark Trials and Appeals. See Trademark Rule
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`2.114(b)(1); TBMP § 311.01.
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`Conference, discovery and trial dates are reset as follows:
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`Time to Answer
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`As noted herein
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`Deadline for Required Discovery Conference 4/21/2023
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`Discovery Opens
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`Initial Disclosures Due
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`Expert Disclosures Due
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`Discovery Closes
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`Plaintiff's Pretrial Disclosures Due
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`Plaintiff's 30-day Trial Period Ends
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`Defendant's Pretrial Disclosures Due
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`Defendant's 30-day Trial Period Ends
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`Plaintiff's Rebuttal Disclosures Due
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`4/21/2023
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`5/21/2023
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`9/18/2023
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`10/18/2023
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`12/2/2023
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`1/16/2024
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`1/31/2024
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`3/16/2024
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`3/31/2024
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`Plaintiff's 15-day Rebuttal Period Ends
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`4/30/2024
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`Plaintiff's Opening Brief Due
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`Defendant's Brief Due
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`Plaintiff's Reply Brief Due
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`Request for Oral Hearing (optional) Due
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`6/29/2024
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`7/29/2024
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`8/13/2024
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`8/23/2024
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`Generally, the Federal Rules of Evidence apply to Board trials. Trial testimony is
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`taken and introduced out of the presence of the Board during the assigned testimony
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`periods. The parties may stipulate to a wide variety of matters, and many
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`requirements relevant to the trial phase of Board proceedings are set forth in
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`Trademark Rules 2.121 through 2.125. These include pretrial disclosures, 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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`4
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`Cancellation No. 92081010
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`declarations, deposition transcripts and stipulated evidence. Trial briefs shall be
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`submitted in accordance with Trademark Rules 2.128(a) and (b). Oral argument at
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`final hearing will be scheduled only upon the timely submission of a separate notice
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`as allowed by Trademark Rule 2.129(a).
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`TIPS FOR FILING EVIDENCE, TESTIMONY, OR LARGE DOCUMENTS
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`The Board requires each submission to meet the following criteria before it will be
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`considered: 1) pages must be legible and easily read on a computer screen; 2) page
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`orientation should be determined by its ease of viewing relevant text or evidence, for
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`example, there should be no sideways or upside-down pages; 3) pages must appear in
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`their proper order; 4) depositions and exhibits must be clearly labeled and numbered
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`– use separator pages between exhibits and clearly label each exhibit using sequential
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`letters or numbers; and 5) the entire submission should be text-searchable.
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`Additionally, submissions must be compliant with Trademark Rules 2.119 and 2.126.
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`Submissions failing to meet all of the criteria above may require re-filing. Note:
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`Parties are strongly encouraged to check the entire document before filing.1 The
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`Board will not extend or reset proceeding schedule dates or other deadlines to allow
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`time to re-file documents. For more tips and helpful filing information, please visit
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`the ESTTA help webpage.
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`1 To facilitate accuracy, ESTTA provides thumbnails to view each page before submitting.
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`5
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