Monday, July 07, 2008

Precedential No. 34: TTAB Okays Stipulation Between Red Sox and "RAD SEX" Applicant to Waive Initial Disclosures

Bostonian Harry F. Chaveriat III, is seeking to register the mark RAD SEX for baseball caps, sweatshirts, t-shirts, and track pants. The Boston Red Sox have balked at the idea and have filed an opposition on the grounds of likelihood of confusion, false connection, and disparagement [TTABlog query: dilution?], and on the ground that the mark is immoral or scandalous. Sounds interesting, even to a White Sox fan like me. Unfortunately this decision deals only with a procedural issue: the Board accepted a stipulation of the parties to "waive any requirement to make initial disclosures in this proceeding." Boston Red Sox Baseball Club Limited Partnership v. Chaveriat III, 87 USPQ2d 1767 (TTAB 2008) [precedential].

After the discovery and settlement conference, the parties filed a consented “Notice of Waiver of Initial Disclosures,” agreeing to waive the initial disclosures requirement. The Board anticipated such a possibility in its August 1, 2007 Notice of Final Rulemaking, 72 Fed. Reg. 42242, 42246, although it "strongly prefers the parties to include a description of the parties' alternate plans for discovery, even if such plans merely provide for use of traditional discovery devices."

Nonetheless, the Board approved the waiver, ruling that "in the absence of any statement from the parties other than that they waive their reciprocal obligations to make initial disclosures, the Board will presume the parties plan to utilize traditional discovery devices, as permitted by the Trademark Rules and Federal Rules of Civil Procedure."

TTABlog comment: A bit of a one-side deal, don't you think? Which party has more to disclose, the ITU applicant or the BoSox?

Text Copyright John L. Welch 2008.


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