TTAB Denies Motion to Amend Cancellation Petition to Add New Classes Because Fee Did Not Accompany Motion
Maybe it's just me, but I found this decision surprising. Petitioner Fred Beverages filed a motion to amend its petition for cancellation of Registration No. 3051906, seeking to add four more classes to the petition. The Board denied the motion because it "was not accompanied by any payment or authorization to charge respondent's [sic] deposit account for any of the additional classes sought to be cancelled." Fred Beverages, Inc. v. Fred's Capital Management Company, Cancellation No. 92048454 (June 26, 2009) [not precedential].
The Board cited Rule 2.111(c)(1) for the proposition that a petition for cancellation "must be accompanied by the required fee ... for each class in the registration for which cancellation is sought." It noted that Rule 2.112(b) similarly states that "[t]he required fee must be included ... for each class sought to be cancelled."
But Fred Beverages wasn't filing a petition for cancellation. It was filing a motion for leave to amend its current petition. If and when leave were granted, presumably Fred Beverages would have paid the fee when it filed the new petition.
This decision seems wrong to me. What do you think?
Text Copyright John L. Welch 2009.