Thursday, November 10, 2011

Court Rules That 1071(b) Civil Action For Review of TTAB Decision Was Timely Filed

Registrant Tovaritch filed a civil action for review, under Section 1071(b)(1), of the Board's decision of March 24, 2011, cancelling a registration for the mark TOVARITCH for vodka. (TTABlogged here). The action was commenced (i.e. the complaint filed) on May 24, 2011, two months later. Petitioner/Defendant moved for dismissal, claiming that the action had to be filed within 60 days of the Board's decision, i.e., on or before May 23rd. Based on the statute and the Trademark Rules, the court denied the motion, holding that such an action is due two calendar months after the Board's decision. Tovaritch Spirits Int'l S.A. v. Luxco, Inc., Case No. 4:11CV950 JCH (October 20, 2011) [decision here].

Section 1071(b) says that the Commissioner may set the time for appeal, but not less than sixty days. Rule 2.145 says that the period is "two months." The rule goes on to say that "months" means "calendar months." The court found it "clear" that "the time a party has to contest a TTAB decision is two calendar months - not sixty days."

Luxco argued that the courts have consistently interpreted "two months" to mean "sixty days," but the court found Luxco's case support to be either inapposite or ambiguous.

TTABlog note: Things get more complicated if the two month period incorporates February 28th.

Text Copyright John L. Welch 2011.


At 8:48 PM, Anonymous Rob said...

I think a period involving Feb 28 can't be calculated as having less than 60 days, simply because the Act doesn't allow it, and the Rule wasn't meant to override the statutory minimum period, not could it. So it's essentially the greater of 60 days or two calendar months. In practical terms, anyone approaching two months should ask the PTO Solicitor for an extension of time.


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