Precedential No. 7: TTAB Enters Judgment as Sanction For Intransigent Defendant's Failure to Attend Discovery Conference

When Respondent Joseph Azzolini, appearing pro se, failed to attend the mandatory Rule 2.120 discovery conference, the Board issued an order requiring him to show cause why judgment should not be entered against him as a sanction. Finding Azzolini's arguments and explanations unconvincing, and in view of the "continuing nature of respondent’s violations despite multiple prior admonitions," the Board concluded that any sanction short of judgment would be futile and unfair to the petitioner. Patagonia, Inc. v. Joseph Azzolini, 109 USPQ2d 1859 (TTAB 2014) [precedential].

On June 28, 2012, Petitioner Patagonia filed a petition for cancellation of Azzolini's registration for the mark EL CAP for various clothing items. Azzolini diddled and daddled, ignoring several Board orders that attempted to move the proceeding forward. Not until February 24, 2013 did Azzolini file his answer, and failed to serve it on petitioner until a month later.

The Board set May 24, 2013 as the deadline for the discovery conference. Patagonia requested that a Board interlocutory attorney participate in the conference. Azzolini agreed by email to "May 24th Thursday" at at 11 AM the time and date of the conference. However, May 24th was a Friday. The interlocutory attorney tried unsuccessfully to reach Azzolini, while Petitioner's counsel made himself available both at 11 AM on Thursday and all day on Friday. Azzolini never called.

One week later, Azzolini informed the Board that he had traveled to the Poconos for the Memorial Day weekend, and his phone lost any connection. When he came home, he realized he had left his phone in the Poconos.

In light of Azzolini's history of ignoring Board orders and "making this case more difficult than necessary," the Board on June 20, 2013, issued a notice of default and an order to show cause why judgment should not be entered against him for failure to participate in the discovery conference. In response, Azzolini lamely pointed to his Memorial Day trip, and he took exception to the interlocutory attorney's "sua sponte" issuance of the show cause order.

The Board pointed out that it is the responsibility of both parties to ensure that a discovery conference takes place by the appointed deadline. Here, Petitioner and the Board "bent over backwards" to provide Azzolini with multiple opportunities to comply with the Rules. Azzolini, on the other hand, "on those occasions when he has bothered to offer any explanation - has offered a series of mostly unsupported excuses which, to put it mildly, strain credulity." The Board's patience had been exhausted.

The issuance of the show cause order was appropriate under Trademark Rule 2.120(g)(1), which states that the Board may make "any appropriate order, including those provided in Rule 37(b)(2) of the Federal Rules of Civil Procedure." The Board is not required to first issue a order compelling attendance at the discovery conference. Azzolini had ample notice and an opportunity to be heard on the sanction issue.

The Board concluded that in view of Azzolini's failure to participate in the discovery conference, and in view of the continuing nature of his violations despite multiple admonitions, "any sanction order short of judgment would be futile and unfair to petitioner, which brought this case well over a year ago and has been unable, despite diligent efforts, to move it forward, due to respondent's intransigence."

In short, Azzolini failed to show good cause as to why the sanction of judgment should not be entered. The Board therefore granted the petition for cancellation.

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TTABlog note: Yes! The lesson here: don't be an Azzolini when dealing with the Board.

Text Copyright John L. Welch 2014.