ESTTA Tracking number:
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`ESTTA1352121
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`Filing date:
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`04/12/2024
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`Proceeding no.
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`92083393
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`Party
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`Correspondence
`address
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`Defendant
`Planting Hope Brands, LLC
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`RICHARD B BIAGI
`NEAL & MCDEVITT LLC
`2801 LAKESIDE DR STE 201
`BANNOCKBURN, IL 60015
`UNITED STATES
`Primary email: rbiagi@nealmcdevitt.com
`Secondary email(s): ebrown@nealmcdevitt.com, pto@nealmcdevitt.com, litiga-
`tion@nealmcdevitt.com
`847-881-2455
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`Submission
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`Filer's name
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`Filer's email
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`Signature
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`Date
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`Reply in Support of Motion
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`Richard B. Biagi
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`rbiagi@nealmcdevitt.com, pto@nealmcdevitt.com
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`/Richard B. Biagi/
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`04/12/2024
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`Attachments
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`USA Rice Fed v Planting Hope - Reply - Set Aside Default.pdf(219603 bytes )
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`In the Matter of Reg. No. 5,597,052 (RIGHTRICE)
`Cancellation Proceeding No. 92083393
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`USA RICE FEDERATION
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`Petitioner
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`PLANTING HOPE BRANDS, LLC
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`Registrant.
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`REPLY IN SUPPORT OF REGISTRANT’S
`MOTION TO SET ASIDE DEFAULT JUDGMENT
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`Pursuant to Fed. R. Civ. P. 55(c) and 60(b) and Trademark Trial and Appeal Board Manual
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`of Procedure (“TBMP”) §312, Registrant Planting Hope Brands, LLC (“Registrant”), through its
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`undersigned counsel, submits this Reply in Support of its Motion To Set Aside Default Judgment.
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`None of Petitioner’s arguments should dissuade the Board from granting relief to
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`Registrant. Despite Petitioner’s assertions to the contrary, (1) Registrant provided substantial
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`evidence to support excusable neglect for not answering the cancellation petition, (2) there is no
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`lack of any articulated detail about a meritorious defense in Registrant’s motion and otherwise in
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`the record that should disqualify Registrant from relief, and (3) Petitioner would suffer no
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`prejudice – other than a self-inflicted need to backtrack – from being required to actually litigate
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`its cancellation claims.
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`LEGAL STANDARD
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`Petitioner misstates the legal standard the Board should apply when considering a motion
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`under Rule 60(b). Petitioner cites a 40-year-old case that addressed entirely different issues than
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`1
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`the ones in this situation, to incorrectly assert that relief under Rule 60(b) should be granted only
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`in “exceptional circumstances.” In Case v. BASF Wyandotte, 737 F.2d 1034 (Fed. Cir. 1984), after
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`a full trial on the merits, the district court dismissed plaintiff’s claims for patent infringement.
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`After the time had passed for plaintiff to appeal the district court’s entry of judgment, plaintiff
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`sought a writ of mandamus from the Federal Circuit “apparently to compel the district court to
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`grant his rule 60(b) motion.” 737 F.2d, at 1035. The court’s opinion in Case does not say that
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`Rule 60(b) relief is reserved for “exceptional circumstances.” It says that a court’s issuance of a
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`writ of mandamus is limited to exceptional circumstances. Petitioner apparently seeks to draw the
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`Board’s attention away from the correct legal standard, which emphasizes “the well-established
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`principles that a trial on the merits is favored over default judgment and that close cases should be
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`resolved in favor of the party seeking to set aside default judgment.” Information Systems and
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`Networks Corp. v. United States, 994 F.2d 792, 795 (Fed. Cir. 1993) (citing cases from the Third,
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`Fifth, Sixth, Seventh, Ninth, Eleventh and D.C. Circuits).
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`Moreover, because “default judgments for failure to timely answer the complaint are not
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`favored by the law, a motion under Fed. R. Civ. P. 55(c) or 60(b) seeking relief from such a
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`judgment is generally treated with more liberality by the Board than are other motions under Fed.
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`R. Civ. P. 60(b) for relief from other types of judgments such as default judgments entered against
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`plaintiffs for failure to prosecute the case.” TBMP 312.03. Registrant requests the Board approach
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`Registrant’s request with the appropriate appreciation for the tendency of tribunals in situations
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`such as these to find in favor of the defaulting party.
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`The majority of circuits balance the various factors to be considered in granting relief under
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`Rule 60(b). Information Systems and Networks Corp. v. United States, supra., 994 F.2d, at 796.
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`2
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`Such a balancing approach “best enables a court to weigh the facts and use its discretion to
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`determine whether a party is deserving of the harsh sanction of default judgment.” Id.
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`REGISTRANT HAS MET THE RULE 60(b) STANDARD
`FOR RELIEF FROM ENTRY OF DEFAULT JUDGMENT
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`The Board should grant Registrant’s motion to set aside default judgment because
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`Registrant has provided substantial evidence – in the form of Ms. Stamberger’s declaration – to
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`show an entitlement to relief under Rule 60(b). Moreover, the motion and the record contain
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`significant detail about Registrant’s defense, so there is no lack of articulated detail about a
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`meritorious defense to disqualify Registrant from relief. Finally, Petitioner would suffer no
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`prejudice from being required to actually litigate its cancellation claims.1
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`A. Ms. Stamberger’s Declaration Provides Substantial Evidence of Excusable Neglect
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`Petitioner seeks to characterize the declaration of Registrant’s CEO Julia Stamberger
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`(attached to the Motion To Set Aside Default Judgment as Exhibit B) as being short on facts and
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`lacking truth. In a quite shocking manner, Petitioner interjects its own subjective belief to
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`effectively call Ms. Stamberger a liar. This is a shameful tactic by Petitioner which the Board
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`should unequivocally denounce. As her sworn-to declaration demonstrates, Ms. Stamberger is an
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`extremely qualified and successful businesswoman, and her word is to be believed. To say that
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`1 Petitioner does not explain why it cites to an unreported TTAB case (Gruner + Jahr Printing &
`Publ. Co. v. Friday Co., L.L.C., 2001 TTAB LEXIS 794, *5 (TTAB 2001)) to articulate a different
`test than the one set forth in TBMP 312.03 for this issue. The TBMP states that: “[a]mong the
`factors to be considered in determining a motion to vacate a default judgment for failure to answer
`the complaint are (1) whether the plaintiff will be prejudiced, (2) whether the default was willful,
`and (3) whether the defendant has a meritorious defense to the action.”
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`It should also be noted that despite TBMP 101.03’s direction that “[i]f a non-precedential decision
`does not appear in the United States Patents Quarterly or the USPTO’s public electronic databases,
`the citing party should append a copy of the decision to the motion or brief in which the decision
`is cited,” Petitioner skipped extending this courtesy to Registrant.
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`3
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`Ms. Stamberger’s declaration signed under full knowledge of the penalty of perjury “def[ies]
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`credulity” is nothing short of an epithet.
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`Petitioner’s unmerited attack on Ms. Stamberger’s declaration continues. Instead of taking
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`Ms. Stamberger at her word that the company did not receive the correspondence from the Board,
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`Petitioner expects Ms. Stamberger to have redundantly given an explanation of how the company’s
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`mailing system works. And Petitioner presumes that Ms. Stamberger has the ability to account for
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`the actions – indeed apparent failures – of the United States Postal Service. Petitioner complains
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`that Ms. Stamberger did not consult with enough people within the company to interrogate them
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`about whether the USPTO correspondence was received. One can be very certain that if anyone
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`within the company received the correspondence, Ms. Stamberger would have been made aware
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`of it and the company would have acted immediately at Ms. Stamberger’s direction to take the
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`appropriate steps in response.
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`Petitioner cites to Jack Lenor Larsen Inc. v. Chas. O. Larson Co., 44 USPQ2d 1950, 1952
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`(1997) for the proposition that a “conclusory statement is insufficient to overcome the presumption
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`of receipt of the notices.” Reliance on Larsen is squarely misplaced. For one, the statements in Ms.
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`Stamberger’s declaration are not merely conclusory. As the founder and CEO of the company, she
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`knows of its happenings, and has the demonstrated business savvy to understand that a cancellation
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`proceeding before the Board requires prompt response. It is implausible to think that the company
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`would not have responded if Ms. Stamberger knew of the action.
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`Moreover, the harsh outcome of the Larsen case seems to be an outlier. Courts appear
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`much more amenable to furthering the well-established principle that a trial on the merits is
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`favored. See Information Systems and Networks Corp. v. United States, supra., 994 F.2d, at 795.
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`Citing to the Information Systems and Networks case, the court in Plus Medical, LLC. v. United
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`4
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`States, 2014 WL 5446019 at *2 (Ct. Fed. Cl., October 27, 2014), looked to, among other things,
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`whether the defaulting party “intended to violate court rules and procedures.” As in the case of Sea
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`Hope Navigation Inc. v. Novel Commodities SA, 978 F.Supp.2d 333, 337 (S.D.N.Y.2013), the
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`court interpreted “willfulness” in the context of a default to refer to conduct that is “more than
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`merely negligent or careless.” Plus Medical, supra., at *2. The court in that case concluded that
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`counsel’s failure to defend based on his confusion regarding the status of the case was a valid
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`reason to set aside the default.
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`Looking at the entirety of the circumstances, together with the particulars of Ms.
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`Stamberger’s declaration recounting her knowledge and actions, the Board should find that
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`substantial evidence exists to show that excusable neglect – certainly not willfulness – explains
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`the lack of a timely answer to the cancellation petition.
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`B.
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`Any Lack of Articulated Detail About a Meritorious Defense in Registrant’s Motion
`Does Not Disqualify Registrant From Relief.
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`Rather than take on its burden of proof and persuasion concerning the merits of this
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`cancelation proceeding, Petitioner apparently seeks a windfall from the Board through this default
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`judgment. This desire to do an end-run around ordinary proceedings becomes clear in Petitioner’s
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`protestations that Registrant filed a motion to set aside a default judgment rather than something
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`resembling a summary judgment motion along with marshalled evidence and detailed argument.
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`Petitioner’s argument under this heading fails principally because the motion, Ms.
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`Stamberger’s declaration, and the underlying file for the subject registration, taken together,
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`provide a substantial portion of the merits of Registrant’s defense. “[A]llegations are meritorious
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`if they contain even a hint of a suggestion which, proven at trial, would constitute a complete
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`defense.” Keegel v. Key West & Caribbean Trading Co., 627 F.2d 372, 374 (D.C. Cir. 1980).
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`5
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`The motion contains significant discussion of matter that pertains to Registrant’s
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`substantive defense. For example, the background section contains detailed recitation of
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`information from Registrant’s marketing materials, which are directly on point to a defense of the
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`claims in the cancellation proceeding about the alleged misleading nature of the mark:
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`No more empty calories, either. Every bowl of RightRice® is made from lentils, chickpeas,
`peas + rice, with more than double the protein, five times the fiber, and almost 40% fewer
`net carbs than a bowl of white rice.
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`The name RightRice indicates to consumers both how to use RightRice (as an easy swap for white
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`or brown rice) and that it is a form of rice. The name helps to assist consumers and ease confusion,
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`understanding how to use it – it is just like plant-based milk or meat – they are called “milk” or
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`“meat” to indicate to consumers how to use the products and where they fit into their diet as
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`alternative choices that offer different base materials and nutrients but perform similar culinary
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`functions. In this way, the motion speaks directly to a substantial portion of the meritorious defense
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`that Registrant has.
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`Moreover, because this is a cancellation proceeding, the matter is not arising ex nihilo, but
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`enjoys the benefit of documentation in the USPTO file showing Registrant’s adoption, use and
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`registration of the mark. The record contains information about the goods for which the mark has
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`been used, communications to and from the examining attorney regarding modifications to those
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`descriptions, the specimen of use of the mark, and the registration certificate, among other
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`information already in the record. It is important to note that the examining attorney did not agree
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`with the assertions that Petitioner made concerning any misleading aspect of the mark’s use. In
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`sum, much of the information upon which Registrant would rely in its defense has already been
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`made available to the USPTO over the years. Accordingly, it is not accurate to say that the motion
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`to set aside default has been without any expression of a meritorious defense.
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`6
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`Further, the requirement of an articulation of a meritorious defense is outside of and beyond
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`the plain language of what Rule 60(b) requires of a defaulting party seeking relief. The rule simply
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`provides that relief may be granted when one shows “mistake, inadvertence, surprise, or excusable
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`neglect.” Nothing in the plain language of the rule requires by necessity the articulation of a
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`meritorious defense at the time a request for relief is made. Any notion that such a showing is the
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`sine qua non of relief imposes a standard that does not exist in the Rules of Civil Procedure. This
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`is consisted with the holdings of cases such as Plus Medical, supra, 2014 WL 5446019, at *2,
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`wherein the court declined to rigidly apply all three factors then under consideration. Rather “the
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`court balance[d] the factors,” and “all doubts [were] resolved in favor of the party seeking relief.”
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`Id., citing Jackson v. Beech, 636 F.2d 831, 836 (D.C. Cir., 1980).
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`Petitioner’s Premature “Victory Lap” With the Press and Media Does Not Give Rise
`to the Sort of Prejudice Required to Deny Registrant of Relief From Default.
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`C.
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`Petitioner does not cite a single case in the portion of its opposition where it discusses the
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`purported prejudice it would suffer if the motion to set aside default were granted. Instead, it seeks
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`to garner sympathy arising from the hassle and loss of face it would supposedly suffer if it had to
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`publicly backtrack from its boasting to the press and media. This is not the sort of prejudice that is
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`to be avoided by denying a motion for relief from a default judgment. Petitioner knowingly
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`undertook the efforts that it now complains would burden it if the Registrant’s motion were
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`granted. Michael Klein’s declaration attached to Petitioner’s opposition details only the efforts that
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`Petitioner voluntarily – and prematurely – took. Being represented by competent counsel,
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`Petitioner should have known that Registrant still had time to challenge the cancellation issued by
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`default. But Petitioner went ahead nonetheless with its purported victory lap. It was entirely up to
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`Petitioner to make the press and media believe that there had been a full determination of the merits
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`of this matter, when in fact all that had happened was a default.2
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`The denial of a motion to set aside a default judgment would seek to avoid a different kind
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`of prejudice to a petitioner in a cancellation proceeding. Such prejudice to the nonmovant, would
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`require a showing of “‘delay [that] will result in the loss of evidence, create increased difficulties
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`of discovery, or provide greater opportunity for fraud and collusion.’” Plus Medical, supra, 2014
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`WL 5446019, at *2, citing Dassault Systemes, SA v. Childress, 663 F.3d 832, 842 (6th Cir.2011),
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`quoting INVST Fin. Grp., Inc. v. Chem–Nuclear Sys., Inc., 815 F.2d 391, 398 (6th Cir. 1987)). To
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`this end, a showing of mere delay is insufficient to show prejudice. Id.; Westec Co. v. United States,
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`32 Fed. Cl. 576, 579 (Ct. Fed. Cl. 1995) (finding no prejudice where, inter alia, discovery had not
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`begun).
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`CONCLUSION
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`Registrant respectfully requests that the Board set aside default judgment and issue an
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`Order setting forth a new schedule for the proceeding to provide Registrant adequate time, under
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`the rules, to answer or otherwise plead.
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`Dated: April 12, 2024
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`Respectfully submitted,
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`/s/ Richard B. Biagi
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`NEAL & MCDEVITT, LLC
`2801 Lakeside Drive, Suite 201
`Bannockburn, Illinois 60015
`Richard B. Biagi
`Email: rbiagi@nealmcdevitt.com
`Phone: 847.881.2455
`Evan D. Brown
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`2 See, for example: Real Rice Prevails, “Right Rice” Mark Cancelled, AgriMarketing, March 6,
`2024 (Source – USA Rice news release) - https://www.agrimarketing.com/s/148660
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`Email: ebrown@nealmcdevitt.com
`Phone: 847.881.2460
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`Attorneys for Registrant
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`9
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`CERTIFICATE OF SERVICE
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`I hereby certify that a true and correct copy of the foregoing document has been served on
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`all other parties to this proceeding on April 12, 2024, via e-mail addressed as follows:
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`SETH B. HERRING
`REED SMITH LLP
`101 SECOND STREET, SUITE 1800
`SAN FRANCISCO, CA 22201
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`sherring@reedsmith.com
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`dkalahele@reedsmith.com
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`/Richard B. Biagi/
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`Richard B. Biagi
`NEAL & MCDEVITT, LLC
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`Attorneys for Registrant
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