R. 36, upholding the TTAB’s ruling dismissing an opposition because the opposer failed to respond to a Fed. Dates Reset. R. Civ. Firebrand LLC, the Trademark Trial and Appeal Board denied a motion to dismiss, holding that an allegation that a trademark owner is not using a mark with its goods and services, and has no intent to resume use, is legally sufficient to plead an abandonment claim. The judge therefore granted Inter Milan’s motion to dismiss with respect to MLS’s likelihood of confusion claim. In addition, if the motion is made by a former client, attorneys should consider providing notice of a potential circumstance to their legal malpractice insurer. Motion for Summary Judgement 27. The case is Warren Distribution, Inc. v. Royal Purple, LLC (Opposition No. On May 20, 1988, applicant filed with the TTAB a motion to dismiss the opposition and register its trademark FORTIFLEX and design pursuant to the District Court Order. R. CIV. %%EOF Resolution of motions to dismiss frequently turns on whether a complaint meets Twombly’s so-called “plausibility” standard. This blog is not legal advice, but contains general information not applicable to specific matters. Specifically, the Board stated that it saw no purpose in requiring detailed pleading requirements for an abandonment claim, particularly in light of the fact that there is no list of activities that always show trademark use, and actual intent not to resume use “also must relate to the use in commerce of the mark.” The Board was also “reluctant to see pleadings devolve into wrangling over whether specific factual allegations offered to demonstrate nonuse and intent not to resume use are sufficient to support the abandonment claim,” as “matters addressing what activities constitute use in commerce under the Trademark Act are best, and traditionally, left to trial.” The Board further remarked that any concerns about an increase in unwarranted abandonment claims could be addressed by participation in discovery conferences, the imposition of sanctions, and the issuance of precedential orders. TTAB Dismisses Opposition: Opposer Failed to Respond to 12 (b) (6) Motion to Dismiss The CAFC issued a per curiam affirmance under Fed. R. Civ. The registration, identifying the goods as filed, issued on the Principal Register on February 21, 1989, as U.S. Reg. The TTAB suspended the opposition as a result of the filing of the civil action and Caterpillar filed a Motion to Dismiss upon Discretionary Dismissal asking the district court not to exercise jurisdiction over Tigercat's claims. Applicant moved to dismiss this claim under FRCP 12(b)(6) for failure to state a claim upon which relief can be granted. Internazionale Milano S.p.A., 2020 USPQ2d 11488 (TTAB 2020) [precedential] (Opinion by Judge Thomas W. Wellington). Defendant has filed a motion to dismiss all claims except the TTAB appeal. R. CIV. granted defendant’s unopposed motion to dismiss the remaining claims. Clothing for Modern Times Ltd., 95 USPQ2d 1175 (TTAB 2010) (motion to compel decided by teleconference). 2 National Newspaper Service. The TTAB denied Corcamore’s motion to dismiss, concluding that Lexmark did not extend to cancellation of registered marks under 15 U.S.C. Notably, the Board reiterated its position that the “the same pleading standard for abandonment claims has been in effect since the 1989 implementation of the [Trademark Law Revision Act of 1988].”. Reversing as to the first mark, the panel held that an exception to claim preclusion applied because an interparty proceeding before the TTAB is a limited proceeding involving registration of a trademark, and TTAB had no To survive a motion to dismiss under Fed. 70% Precedential No. The amount of time can vary. This blog harnesses our collective insight and experience in order to serve up relevant and useful information for our clients and others that have interest in the evolving world of IP law. More About the Trademark, Copyright and Advertising and Intellectual Property Litigation Practice Groups. The motion to dismiss was granted and the opposition was dismissed with prejudice on July 20, 1988. 103 0 obj <>/Filter/FlateDecode/ID[<685418D3808A92259886FC34BCB817A4>]/Index[94 20]/Info 93 0 R/Length 69/Prev 132674/Root 95 0 R/Size 114/Type/XRef/W[1 3 1]>>stream That standard requires that a complaint “state a claim to relief that is plausible on its face,” and cautions that “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” While Firebrand seems to have a point, the Board did not agree. Motion to Strike Pleadings - Fed. The party in the position of plaintiff shall have twenty days from the date of service of the motion to file a brief in response to the motion. P. 60 4. The motions available in a civil action are generally available in an opposition (e.g., motions to dismiss, motions to compel, motions for summary judgment). Following the TTAB’s denial of its motion to dismiss, Corcamore undertook a series willful, bad-faith procedural maneuvers that resulted in two … Our IP attorneys at Dorsey practice on the cutting edge of law and technology. P. 12(f) 31. The Board also referenced three previous cases in which it had occasion to apply the Iqbal/Twombly standard to abandonment claims. This case now comes up on applicant s motion, filed. Unlike some courts, the Board will generally grant stipulated requests to extend discovery, even repeated requests. In summary, applicant’s motion to dismiss the petition to cancel for lack of standing is denied. Petitioners have alleged standing to survive a motion to dismiss, although proof of petitioner’s standing is left to trial. P 12(b)(6) for 2 Application Serial No. The trial court granted the motion on the basis of B&B Hardware: "[A] court should give preclusive effect to [TTAB] decisions if the ordinary elements of issue preclusion are met. Until that happens, however, cancellation petitioners need only plead that a trademark owner is not using a mark with its goods and services, and has no intent to resume use to survive a motion to dismiss. Whether the Board is ultimately right – and whether its standard for cancellation claims passes muster under Iqbal and Twombly – will have to await a decision by the Federal Circuit or, better yet, the Supreme Court. R. Civ. In its motion to dismiss, Teksavvy argued that no controversy existed because it never threatened litigation but, rather, threatened only to file a cancellation action with the TTAB. Alternatively, filers may send non-urgent email inquiries to ESTTA@uspto.gov, and include a description of the problem, the “ESTTA Tracking Number” and the proceeding number (if any), and a telephone number for contact. Firebrand LLC, the Trademark Trial and Appeal Board denied a motion to dismiss, holding that an allegation that a trademark owner is not using a … Here’s one from December 2015 (although I can’t understand why it earned the precedential label). The CAFC issued a per curiam affirmance under Fed. § 1064. 37 C.F.R. The judge therefore granted Inter Milan’s motion to dismiss with respect to MLS’s likelihood of confusion claim. In my most recent experience with TTAB on a contested motion, the ruling took almost 9 months on a motion to dismiss for failure to state a claim upon which relief could be granted (12(b)(6)). Intermix S.A., 97 USPQ2d 1403, 1405 (TTAB 2010). To consult with one of our TTAB attorneys about your case, contact: James Hastings, Esq. The Board granted respondent’s motion to dismiss but allowed petitioner time to replead.5 Petitioner filed a second amended pleading. 113 0 obj <>stream Accordingly, the TTAB denied Opposer’s motion to dismiss the counterclaim as to this ground. Cheryl Butler. 93. Motion for Summary Judgement 27. In its motion to dismiss, applicant argues that opposer. Trademark Rule 2.127(d); TBMP 528.03. The TTAB suspended the opposition as a result of the filing of the civil action and Caterpillar filed a Motion to Dismiss upon Discretionary Dismissal asking the district court not to exercise jurisdiction over Tigercat's claims. The trial court granted the motion on the basis of B&B Hardware: "[A] court should give preclusive effect to [TTAB] decisions if the ordinary elements of issue preclusion are met. the motion except as otherwise specified in the Board’s suspension order. Is the Board simply ignoring Twombly? Opposer failed to show "good and sufficient cause" why … §§ 1123-1124. On September 6, 2012 the Board convened a … Cir. has failed to plead the requisite elements of a Section In my most recent experience with TTAB on a contested motion, the ruling took almost 9 months on a motion to dismiss for failure to state a claim upon which relief could be granted (12(b)(6)). agreement among counsel or motion granted by the Board. § 2.117 Suspension of proceedings. Topics. Intermix S.A., 97 USPQ2d 1403, 1405 (TTAB 2010). The party in the position of plaintiff shall have twenty days from the date of service of the motion to show cause why judgment should not be rendered dismissing the case. I. However, the additional five days has now been built into the rule regarding motions itself “These changes likely impact only a small fraction of filings, as nearly all filings are already done through ESTTA. If the case is not disposed of as a result of the motion, proceedings will be resumed pursuant to an order of the motion is decided. Nike, Inc. v. Palm Beach Crossfit Inc., 116 USPQ2d 1025, 1030 (TTAB 2015). In <em>Kastle Systems v Lee Strategy Group</em>, the TTAB has granted the opponent’s motion for summary judgment, dismissing the applicant's fraud counterclaim. In the absence of a showing of excusable neglect, judgment may be rendered against the party in the position of plaintiff. In the context of a motion to dismiss a petition for cancellation of a trademark registration, however, not much appears to have changed since Twombly and Iqbal, at least in the context of a claim of abandonment. As with previous editions, this edition is available online at the TTAB home page of the USPTO web site in a searchable, printable format as well as in pdf. v. F.C. P. 12(b)(6). h�bbd```b``z "A$C3�dY"ٷ�ȸ� 2XH2F���/�10���g`$����X� � � Trademark Opposition Lawyer is a publication of the TTAB Practice Group of Collen, a leading U.S. brand protection law firm. You have to file the answer electronically through … Cir. The facts alleged by MLS (taken as true for purposes of the motion to dismiss) revealed only that MLS and the prior users of INTER may draw the same fans and that some of the players from these prior user may mature into MLS players. Here’s one from December 2015 (although I can’t understand why it earned the precedential label). Opposer NetxGen mistakenly believed that the Board would determine the motion on the merits even without a response, rather than consider the motion conceded. The TTAB denied the motion, finding, among other things, that the opponent had adequately pleaded that the applicant had no good-faith intent to use the mark when it filed its application. %PDF-1.5 %���� Motion for involuntary dismissal - Trademark Rule 2.132 11. Dates Reset. P. 12(b)(6) for opposer s failure to state a claim upon which relief can. Finally, assess whether the firm or different counsel should defend the motion to disqualify. Tags: AbandonmentIqbalmotion to dismissTwombly. the allegations of nonuse plus intent serve both to describe the claim and to describe the necessary facts to support the claim.”. v. F.C. Precedential No. Tolling Considerations When Filing A Partial Motion To Dismiss Butler Snow LLP. Filers may call the TTAB with questions about filing at (571) 272-8500 or (800) 786-9199 from 8:30 a.m. to 5 p.m. The TTAB denied Corcamore’s motion to dismiss, concluding that Lexmark did not extend to cancellation of registered marks under 15 U.S.C. h�b```f``���� cB��$s���N��8w+��L��� b8X���mޯ:��.�I��fWaG��&�`� endstream endobj 95 0 obj <> endobj 96 0 obj <> endobj 97 0 obj <>stream be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” In other words, “while the Iqbal/Twombly standard applies to all civil complaints, the Supreme Court makes clear that there is flexibility in application of the standard.”, The Board then noted that, while the Federal Circuit has not applied the Iqbal/Twombly standard to abandonment claims, its application of that standard to pleadings of patent infringement is “instructive,” as the Federal Circuit has repeatedly denied motions to dismiss that seek overly-detailed pleading. Perhaps this is what the Board was getting it when it noted that Iqbal requires “the reviewing court to draw on its judicial experience and common sense” in applying the Iqbal/Twombly standard. Unlike some courts, the Board will generally grant stipulated requests to extend discovery, even repeated requests. VENM, LLC, 112 USPQ2d 1925, 1926 (TTAB 2014) (the first motion to dismiss deemed moot and the second motion to dismiss was considered solely with respect to the amended counterclaim);Fair Indigo LLC v. Style Conscience, 85 USPQ2d 1536, 1537 (TTAB … A motion to dismiss for failure to state a claim upon which relief can be granted is a test solely of the legal sufficiency of the allegations set forth in a pleading. The TTAB is fairly liberal in allowing a complaint to proceed so a motion to dismiss is denied over 90% of the time. After the notice of opposition is filed, the TTAB will formally institute the opposition proceeding and will issue a schedule that lays out all of the dates by which certain actions need to be taken. In each of those cases, the Board held that the Iqbal/Twombly standard did not require more than the traditional pleading of nonuse plus intent not to resume. Sandy's practice focuses on trademarks and unfair competit... Stefan is an attorney in the firm’s Trial Group, focusin... Fara assists clients in the development and execution of all type... Charlene Krogh is a Partner in Dorsey’s top-ranked Tradem... All Trademark Group Content Search Dorsey, Legal Developments in the World of Trademarks, Copyrights, Advertising and Beyond. Dates are reset as set out below. . 41% Latest Roster Of TTAB Interlocutory Attorneys Wolf, Greenfield & Sacks, P.C. Generally speaking, you must answer a trademark opposition within 40 days of the TTAB instituting the opposition proceeding. TTAB Grants Rule 2.132 Motion to Dismiss IODINE Opposition for Failure to Prosecute The Board dismissed this opposition to registration of the mark IODINE for various goods and services, granting applicant's Rule 2.132(a) motion for judgment for failure to prosecute because opposer had filed no evidence and taken no testimony. Applying that statutory definition, the Board held that “an abandonment claim must plead nonuse, which is use that has been discontinued, plus ‘intent not to resume such use.’”, Firebrand argued that Lewis Silkin’s mere recitation of the statutory elements is insufficient to meet the Iqbal/Twombly standard for pleadings. To survive a motion to dismiss under Fed. No matters outside the pleadings are considered. (914) 941-5668 jhastings@collenip.com. As such, it would be unrealistic to expect a petitioner for cancellation to know and plead all the facts necessary to prevail on an abandonment claim. Firebrand LLC, the Trademark Trial and Appeal Board denied a motion to dismiss, holding that an allegation that a trademark owner is not using a … We are not acting as your legal counsel unless separately retained in a written agreement signed by us. See J.A. BACKGROUND The Buck Rogers character made its newspaper comic strip debut in 1929, having been developed for that format by Philip Francis Nowlan, under a contract with John F. Dille’s . Thus, a party may not be obligated to assert a counterclaim in such a situation. Archives Archives. P. 60 8. That motion shall be granted in part and denied in part. The Board generally has held that in order to set forth a valid ground for opposition under Section 2 (d) and withstand a motion to dismiss for failure to state a claim, an opposer need only allege that (1) it has valid proprietary rights in a mark that are prior to those of the applicant, or that it owns a registration, and (2) the applicant’s mark so resembles the opposer’s mark as to be likely to cause … If the case is not disposed of as a result of the motion, proceedings will be resumed pursuant to an order of the motion is decided. In summary, applicant’s motion to dismiss the petition to cancel for lack of standing is denied. 91247160 (December 9, 2020) [precedential] (Opinion by Judge Thomas W. Wellington). Rather, it observed that the “much-quoted reference to ‘threadbare’ recitals does not establish a per se pleading standard” and, quoting Iqbal, stated that “[d]etermining whether a complaint states a plausible claim for relief will . 0 Motion to dismiss or judgment on pleadings - Fed. The Board deferred action on the motion for recon-sideration but denied the motions for summary judgment, ET. endstream endobj startxref And can it really do that? R. Civ. On May 20, 1988, applicant filed with the TTAB a motion to dismiss the opposition and register its trademark FORTIFLEX and design pursuant to the District Court Order. Instead, the Board concluded that SFM had standing under the Federal Circuit’s decision in Empresa Cubana del Tabaco v. Gen. Cigar Co., 753 F.3d 1270 (Fed. Citing prior precedent, the court held that the threat of a cancellation action, alone, was not sufficient to establish subject matter jurisdiction or a standalone cause of action. Retailers A ... All Publicity May Not Be Good Publicity: Risky Timing of IP Filings Based on Sports Success, New Developments in JaM Cellars Trademark Dispute With Franzia Wines. R. Civ. Guest Post – Discovery Of Trade Secrets: … Defendant has filed a motion to dismiss all claims except the TTAB appeal. Super Bakery Inc. v. Benedict, 96 USPQ2d 1134, 1135 (TTAB … hޤUmo�0�+��ik�ۑ*$������u�C Senior Counsel and … Major League Soccer, L.L.C. The Board did provide some clues as to the policy rationale for its arguably questionable application of the Iqbal/Twombly standard to cancellation claims. Cons. P. 12(b)(6). 93. Internazionale Milano S.p.A., Opposition No. However, I have another motion currently pending in which a ruling is expected within about 8 weeks. Stat. P 12(b)(6) for January 31, 2019, The U.S. Supreme Court’s blockbuster rulings in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal represented a major shift in federal pleading standards. cluding a motion for reconsideration of the Board’s denial of its motion to dismiss, a motion for Rule 11 sanctions, a motion for summary judgment on the ground of collateral estoppel or issue preclusion, and a motion to strike. 503 Motion to Dismiss for Failure to State a Claim 503.01 Time for Filing 503.02 Nature of Motion 503.03 Leave to Amend Defective Pleading ... (TTAB 2007) (the parties stipulated to the entire record, including b usiness records, public records, mark eting I. 510 Motion to Suspend; Motion to Resume. R. 36, upholding the TTAB’s ruling dismissing an opposition because the opposer failed to respond to a Fed. 41: TTAB Refuses Reconsideration of its Denial of Rule 12 (b) (6) Motion to Dismiss Once in a great while, a precedential interlocutory ruling of the TTAB slips through the TTABlog crack. R. Civ. By contrast, in Lewis Silkin, the Petitioner’s “abandonment claim is not merely a formulaic recitation of the elements of the claim, because . cluding a motion for reconsideration of the Board’s denial of its motion to dismiss, a motion for Rule 11 sanctions, a motion for summary judgment on the ground of collateral estoppel or issue preclusion, and a motion to strike. TTAB rule changes Bobby Ghajar and ... days to respond to a motion when service is made via mail, which caused some concern among commenters. Sued for Reposting a Photo of Herself on Instagram -That Just Happened to Gigi Hadid, Google Fine Signals GDPR Enforcement Priorities and Complexities, The “F Word” Taking Center Stage at the U.S. Supreme Court, TTAB Weighs in on Registrability of CBD Trademarks, Tiffany v. Costco: The Perils of Not Offering Consumer Survey Evidence. P. 12(f) 31. The motion to dismiss was granted and the opposition was dismissed with prejudice on July 20, 1988. R. Civ. Motions for relief from entry of final judgment Fed. The motions available in a civil action are generally available in an opposition (e.g., motions to dismiss, motions to compel, motions for summary judgment). Motions for relief from entry of final judgment – Fed. 91214792, Aug. 10, 2015). Summary. The TTAB denied Corcamore’s motion to dismiss for lack of standing and reasoned that Lexmark was not applicable because it was limited to civil actions involving false designation of origin … The case is Warren Distribution, Inc. v. Royal Purple, LLC (Opposition No. For a third time, respondent moved to dismiss the amended petition for failure to state a claim pursuant to FED. That motion shall be granted in part and denied in part. Summary. Whether the Board is properly applying Twombly is a closer question, one that probably will not be definitively answered until the Court of Appeals for the Federal Circuit weighs in on the pleading standard for cancellation claims. In a precedential decision, the TTAB granted a motion to dismiss a notice of opposition filed by an employer because only the employee had obtained an extension of time to oppose. Analysis A motion to dismiss for failure to state a claim upon which relief can be granted is a test solely of the legal sufficiency of the allegations set forth in a pleading. Finally, the Board distinguished its pre-Iqbal decision in Otto Int’l Inc. v. Otto Kern Gmbh because in that case, the petition to cancel, among other things, failed to allege that the respondent had discontinued use of its mark with an intent not to resume use. ASK JAMES Stay Connected. P. 12 (b) (6) motion to dismiss. Welcome to the USPTO TTAB Reading Room. the motion except as otherwise specified in the Board’s suspension order. Canada’s Broad Interpretation of Trademark “Use” Gives U.S. TTAB Rules on Abandonment of Madrid Protocol Markby PLC Intellectual Property & TechnologyRelated ContentIn SaddleSprings, Inc. v. Mad Croc Brands, Inc., the Trademark Trial and Appeal Board (TTAB) denied a trademark owner's motion to dismiss a petition to cancel the owner's US trademark registration for failure to state a claim upon which relief may be granted. § 1064. . :Y��{���yl�a���p�aԄ+\"��� 0"F)%L��J�p 5�����\���e�g�E�^�먊+D�#�Gz���` �q`��r'��vgx�~������e���j�j �M�ۉ�d���=�ɟ8+��N�v���;g�^��[V4_z�Ղ��r�,*ڀv��$��*���L. 20: TTAB Declines To Strike Summary Judgment Motion As Untimely After Respondent Consented To Extension Wolf, Greenfield & Sacks, P.C. . R. Civ. . Dates are reset as set out below. ��I�dW�� ������%� ��``�h� �w4ht لmʛ00~���@�v3?�é�Omsded��h��,e���MH3q[10�ZA�� A�8� Circ. The Board deferred action on the motion for recon-sideration but denied the motions for summary judgment, CONCLUSION This decision represents one of few precedential decisions addressing grounds for opposition and cancellation based on an allegation of an invalid assignment in violation of Section 10 of the Trademark Act. 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