Tuesday, February 12, 2008

Precedential No. 67 (2007): Finding Two-Days' Notice Insufficient, TTAB Strikes Opposer's Testimony and Dismisses Opposition

One just never knows when a precedential interlocutory ruling of the TTAB may explode in the firmament. The Board does not include interlocutory decision in its database of decision (only final decisions), and so once in a while one of these interlocutories suddenly and unexpectedly appears. Case in point: Gaudreau v. American Promotional Events, Inc., 82 USPQ2d 1692 (TTAB 2007) [precedential].

Applicant APE sought to register the mark TNT FIREWORKS, INC. for "distribution services for fireworks," but was opposed by Terry P. Goudreau et al., who claimed prior use of the same mark for fireworks. Two days before their testimony period closed on November 16, 2006, Opposers noticed a testimony deposition for November 16th. When the deposition was taken, APE's attorney appeared (by telephone) under protest and conducted minimal cross-examination.

On November 20th, APE moved to strike the entire testimony deposition under Rule 2.123(e)(3) on the ground that the notice of deposition was both inadequate and unreasonable. The deposition was scheduled for Williston, North Dakota, whereas APE's counsel was located in St. Louis.

Under the circumstances, the Board found the notice unreasonable. There was no compelling reason why Opposer needed to take the deposition on such short notice. The Board distinguished cases in which the Board has considered testimony taken on unreasonable notice when "the deposing party has offered to accommodate its adversary by making the witness available for further questioning at a later date or has agreed to extend its testimony period to allow for further questioning of the witness." Here Opposer Gaudreau stated that he did not want to extend the testimony period. [TTABlog comment: I hesitate to say that that statement blew up in his face!]

The Board therefore struck the testimony from the record. Because Opposers offered no other evidence, it could not sustain its burden of proof, and so the Board entered judgment against Opposers and in favor of APE.

Text Copyright John L. Welch 2008.


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