TTAB Amends GUANTANAMERA Decision to Remove Derogatory Statements
On the motion of Opposer's counsel, the Board amended its decision in Corporacion Habanos, S.A. v. Guantanamera Cigars Company, Opposition No. 91152248 [precedential], to remove certain "erroneous" statements regarding Opposer's submission of evidence, as well as the Board's reprimand of counsel based thereon. The amended opinion, dated June 12, 2012, is here. The original decision was TTABlogged here.
In its February 16, 2012 precedential decision, the Board accused Opposer's counsel of "burying" inadmissible evidence amongst certain admissible evidence in a "purportedly handy attachment to its brief," in an "attempt to hoodwink us into considering material that opposer did not make of record." The Board proclaimed that "[l]ittle is left in the integrity of a proceeding if the tribunal cannot trust the accuracy of submissions or the veracity of a party’s representations."
In the request to amend the decision, filed on March 1, 2012 (here), Opposer's counsel, David B. Goldstein, pointed out the errors in the Board's factual statements regarding Opposer's submission of testimony. He stated that "[t]he Board’s erroneous statements, and its subsequent unfounded reprimand, in its precedential, to be published opinion are plainly damaging to undersigned counsel’s previously unblemished professional reputation, both before the Board and elsewhere."
The Board granted Opposer's uncontested request and has now removed, without further comment, the following text from the original decision (at pages 6-8):
Opposer submitted as exhibit 1 to its main brief "[a] true and correct copy of the excerpts of the Armenteros [district court discovery] deposition and the deposition exhibits and excerpts thereof that are cited" in the brief. As indicated above, Mr. Armenteros is a tobacco retailer and educator. Applicant offered Mr. Armenteros as an expert witness in the district court; his deposition is covered by the parties’ stipulation regarding various depositions. Opposer introduced into the record certain excerpts from the Armenteros discovery deposition, some during opposer’s trial period and others during its rebuttal period. However, after spending some time reviewing the submission, we discovered that approximately thirty pages in exhibit 1 were not submitted to the Board during the testimony period, and thus were never made of record. It appears to us that opposer sought to have us consider those pages in exhibit 1 - which were not in evidence - by burying them among other pages which were properly submitted in evidence in this purportedly handy attachment to its brief. We condemn in the strongest possible terms opposer’s attempt to hoodwink us into considering material that opposer did not make of record, and which is helpful to opposer’s case. Little is left in the integrity of a proceeding if the tribunal cannot trust the accuracy of submissions or the veracity of a party’s representations. As for those pages in exhibit 1 which opposer properly introduced in evidence, it was not necessary to resubmit them with opposer’s brief. The Board has repeatedly advised parties that it is not necessary to submit duplicates of material that is already in the record. Although the submission, with a brief, of one or two pages of particularly important material, along with clear and accurate notations of where in the record the material can be found, can be useful, in general, the submission of large amounts of material as exhibits to briefs is not helpful.
The Board also removed the very next, relatively mundane, sentence: "Next, we turn to the documents submitted by applicant."
Text Copyright John L. Welch 2012.