Precedential No. 13: TTAB Nixes Stipulation for Service By E-Mail And Five Extra Mailing Days
The parties to this opposition proceeding filed a stipulation to accept service by e-mail while retaining the five additional days afforded by Rule 2.119(c) for filing and/or serving responsive documents, applicable for service by first-class mail. No can do, said the Board, as it rejected the stipulation. McDonald's Corporation v. Cambridge Overseas Development Inc., 106 USPQ2d 1339 (TTAB 2013) [precedential].
Rule 2.119(b)(6) allows service of papers by electronic transmission when the parties so agree. But they cannot also take advantage of the five-extra-days-for-mailing provision of Rule 2.119(c). That five-extra-days rule applies only to service by first-class mail, Express Mail, or overnight courier. See Miscellaneous Changes to Trademark Trial and Appeal Board Rules, 72 Fed. Reg. 42442, 42250 (August 1, 2007) ("as for agreed use by parties of e-mail or fax for forwarding service copies, the office confirms that Section 2.119(c) would not apply to service by electronic transmission (email or fax) under Section 2.119(b)(6).").
The Board pointed out that a stipulation such as that filed here would run afoul of Rule 2.127, which states that the time for filing reply briefs and motions under FRCP 56(d) "will not be extended."
Therefore, the Board refused to approve the stipulation.
The parties could stipulate that they would accept service by first-class mail but with a courtesy e-mail copy sent simultaneously. Then the five-extra-days-for-mailing would apply. [TTABlog query: what is the sanction if one fails to send the courtesy e-mail copy?]
Read comments and post your comments here.
TTABlog comment: FWIW, my practice is to never agree to service by e-mail. That's because, from one case to another, I can never remember in which cases I've agreed to e-mail service and in which I haven't. So the simple way to remember is to never agree. I will agree to sending courtesy copies by e=mail, however, being that kind of guy.
Text Copyright John L. Welch 2013.