Thursday, January 24, 2008

TTAB Rule of Thumb: Introduce No Evidence, Lose Your Opposition

One may safely posit the following rule: an Opposer who fails to introduce evidence will lose at the TTAB. Healix Infusion Therapy, Inc. fell victim to that rule in its opposition to registration of the mark HELIX for computer software in the healthcare field. Healix claimed likely confusion with its registered mark HELIX for healthcare-related cost management and record maintenance services. However, it failed to introduce its registrations into the record and offered no evidence whatsoever. Ergo, it lost. Healix Infusion Therapy, Inc. v. Cerner Corp., Opposition No. 91170997 (January 10, 2008) [not precedential].

Opposer Healix pleaded ownership of one registration and three pending applications; by the time of trial, the applications had issued to registration. But none of Opposer's four registrations were offered in evidence.

Healix argued that, even though it did not comply with Rule 2.122(d), the Board should take judicial notice of its registrations. No, said the Board. It does not take judicial notice of registrations. See In re Duofold Inc., 184 USPQ 638 (TTAB 1974).

Healix also urged that Applicant Cerner had admitted Opposer's ownership in its answer to the notice of opposition. Cerner, however, stated that it was "without information sufficient to admit or deny the allegations ..., and therefore denies same." Healix boldly asserted that Applicant "could have quickly verified, through the USPTO's records, the truth of opposer's allegations ... and that by denying such allegations without attempting to verify them, applicant's answer is 'evasive' and therefore constitutes an admission." Again the Board said no way. Applicant's answer followed FRCP Rule 8(b), and was a proper denial. Moreover, it was not Applicant's job to verify Opposer's ownership; it was Opposer's obligation to follow Rule 2.122(d).

Having failed to introduce any evidence as to ownership of its registrations, Healix did not establish its standing to oppose. The Board therefore dismissed the proceeding with prejudice.

TTABlog comment: Here's a question for you: Why shouldn't the Board take judicial notice of the PTO records? Amended Rule 2.122(d) allows a party to submit a pleaded registration by attaching ordinary copies from the PTO database regarding status and title. Why not just take judicial notice of that information? Or at least create a rebuttable presumption that the PTO information is correct?

Text Copyright John L. Welch 2007.


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