FRED Beverage TTAB Case Still Dormant Eight Months after CAFC Fee Ruling
Since the CAFC's May 12, 2010 decision in Fred Beverages, Inc. v. Fred's Capital Management Company, 94 USPQ2d 1958 (Fed. Cir. 2010), the TTAB has yet to rule on Petitioner's motion for leave to amend its petition for cancellation. [TTABlogged here].
On June 26, 2009, the Board denied Petitioner's motion to add four classes to its petition for cancellation because the motion "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." The CAFC reversed the Board's decision, holding that the denial of Petitioner's motion was arbitrary and capricious.
Last week, Petitioner Fred Beverages filed a written request that the Board decide the motion on the merits, in accordance with the CAFC's directive.
Any bets on when and how the Board will decide the motion for leave to amend?
Text Copyright John L. Welch 2011.
posted by John L. Welch @ 1/21/2011
2 comments
2 Comments:
Thanks for accepting my suggestion to post this follow-up, John. Although I fully agree with the CAFC's reversal, which was the only logical result; I'm not sure why the CAFC applied the "arbitrary and capricious" standard of review, rather than "de novo" or "abuse of discretion," which are normally applied in judicial review of Board decisions. Do you have any thoughts on this?
I think it has to do with administrative law, and the decision in SEC v Chenery, which allows says that an agency may make a decision or ruling when there is no rule directly on point, so long as the decision is consistent with past practice and is not arbitrary and capricious.
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