TTAB Tosses Out Premature Opposition As A Nullity

Hawaiian haberdasher Only The Best, Inc. jumped the gun in its attempt to oppose an application to register MAUI SURF COMPANY for various clothing items. It filed its opposition before the application was published for opposition, and so the Board tossed out the opposition as untimely. Only The Best, Inc. v. OPS Sales, Inc., Opposition No. 91163053 (March 17, 2005). Maui Surf Company "KEMO" Pink Surfer Boots OPS Sales, Inc.'s application was published for opposition on November 9, 2004, but Only The Best, Inc. mailed its Notice of Opposition under the PTO's express mail procedure on November 3rd. The PTO stamped the notice with an "Office date label" of November 3, 2004. The correspondence was actually received by the PTO on November 15, 2004. "Under these circumstances, the controlling date is the date on the 'Office date label.'" Section 13 of the Trademark Act states that an opposition may be filed "within thirty days after publication." Because the timeliness requirement is statutory, it cannot be waived. Ergo, the notice of opposition was a nullity. Only the Best, Inc. argued that the date of actual receipt by the PTO is controlling, and that the PTO received the notice on November 15th according to the TARR database entry. Applicant OPS, however, provided a printout from the USPS website, showing that the package was received by the PTO on November 5th. The Board noted that the TARR date "merely reflects the date the notice of opposition was entered into the database and has no legal effect." Thus even under Only The Best's erroneous argument, the notice was still premature and untimely. Only The Best, Inc. may take some solace in the Board's closing footnote:

"Only The Best, Inc. is advised that its remedy, if any, lies in the filing of a petition for cancellation, pursuant to Section 14 of the Trademark Act. See TBMP Section 306.04. Further, this matter will be referred to the Finance Branch of the Office of consideration of the refund of the $300.00 opposition fee. Id."

Text ©John L. Welch 2005. All Rights Reserved.