Thursday, August 25, 2011

Opposer Fails to Serve Proper and Timely Pre-Trial Disclosures, TTAB Strikes Testimony

Tip from the TTABlog: Don't mess with the Board's disclosure rules. Opposer Cantine Riondo failed to comply with the pre-trial disclosure requirements of Rule 2.121(e), and so the Board granted Applicant Sood's motion under Rule 2.123(e)(3) to strike the testimony of Opposer's only witness. The Board then dismissed the opposition because Opposer failed to get any evidence into the record -- even its own registration. And you think you had a bad day? Cantine Riondo S.p.A. v. Renu Sood, Opposition No. 91194042 (August 24, 2011) [not precedential].

Opposer's pre-trial disclosures were due on January 31, 2011. On the first day of its testimony period (February 16, 2011) Opposer served a letter "bearing the line 'Re: Supplemental Initial And Pretrial Disclosures,' in which it identified three individuals and their locations," including Mr. Charles Massie, the one person who subsequently testified. The disclosure include a list of documents, but not the required summary of the subjects on which each witness would testify.

Actually, the disclosure was not "supplemental" at all, because Opposer had never served initial disclosures. Opposer also refused to send Applicant copies of its production documents, but instead insisted that Applicant travel across the country to see them. [I think it's fair to say that Opposer was not wearing the white hat in this matter - ed.].

Applicant Sood argued that it was severely prejudiced by the lack of timely disclosure "due to both lack of notice regarding the subjects on which Mr. Massie would testify and opposer's introduction of documents that it had not copied and mailed to applicant's counsel during discovery."

Opposer pointed to certain interrogatory answers that had referred to Mr. Massie, but the Board was not impressed:

Opposer’s failure to serve any initial disclosures during discovery, failure to serve timely pretrial disclosures, and failure to identify specific subjects on which Mr. Massie was expected to testify is clearly in violation of Trademark Rule 2.121(e) and subjected applicant to unfair surprise. Although applicant never moved to compel opposer’s initial disclosures,
which would have been the preferred practice, opposer, who determined that Mr. Massie’s testimony was important to its case, did not identify him as such at a time when applicant could have sought discovery from him. Moreover, as noted above, the mere mention of Mr. Massie in two discovery responses does not absolve opposer from its obligations under Trademark Rule 2.121(e).

And so the Board struck Mr. Massie's testimony, and Opposer's case collapsed like a cheap deck chair in a hurricane.

TTABlog comment: I'm surprised this ruling wasn't deemed "precedential." Maybe it will be.

Text Copyright John L. Welch.


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