Monday, July 30, 2007

Finding Lawyer's Office Relocation an Insufficient Excuse for Lack of Testimony, TTAB Dismisses Cancellation Petition

The Board dismissed P22 Type Foundry's petition for cancellation of three registrations for various typeface font trademarks owned by Berthold Types Ltd., because Petitioner took no testimony and offered no evidence. Petitioner contended that its failure resulted from the relocation of its attorney's office, but the Board, while sympathetic, found that excuse inadequate to satisfy the "good and sufficient cause" requirement of Rule 2.132(a). P22 Type Foundry, Inc. v. Berthold Types Ltd., Cancellation No. 9204530 (July 18, 2007) [not precedential].

Petitioner's counsel stated that the relocation of his office required about 35 days, during which he "experienced construction delays, computer crashes, and technical mishaps with firewalls, data wiring, servers, and computer and telephone systems." One consequence was the corruption of data files, including those relating to his docketing software. Petitioner argued that the failure to act was "outside its reasonable control and, thus, due to excusable neglect."

Rule 2.132(a) provides that when a plaintiff fails to take testimony during its allotted time, judgment may be entered against it "in the absence of a showing of good and sufficient cause." The "good and sufficient cause" standard is equivalent to the "excusable neglect" standard of FRCP 6(b)(2). The Board, in Pumpkin Ltd. v. The Seeds Corp., 43 USPQ2d 1582 (TTAB 1997), adopted the Supreme Court's four-factor test regarding excusable neglect, as set out in Pioneer Invest. Servs. Co. v. Brunswick Assoc. Ltd., 507 U.S. 280 (1993). Several courts have stated that the third factor -- the reason for the delay, including whether it was within the reasonable control of movant -- is the most important factor.

As to the relocation of counsel's office, the Board perceptively noted that the disruption occurred between the end of May and the beginning of July 2006, but the discovery period had yet to close, and Petitioner's testimony period ended five months later. Petitioner offered no explanation of its efforts to back up his files or to ascertain the status of the proceeding.

"... insufficient evidence has been provided for the Board to conclude that the file for this case was permanently lost from the systems of petitioner's attorney and that steps were] taken to back up and retrieve the records without success during and after the move."

The Board therefore denied Petitioner's request to reopen the discovery and testimony periods, and dismissed the petition with prejudice.

TTABlog note: The Board pointed out that "a plaintiff's failure to take testimony in Board proceedings is analogous to not showing up in court on the day of trial." Good luck to the attorney who tries to get out of that one.

Text Copyright John L. Welch 2007.


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