Friday, August 19, 2016

TTAB Dismisses Opposition, Rejecting Opposer's Improper Declaration Evidence

The Board granted applicant's Rule 2.132 motion for involuntary dismissal in this opposition to registration of the mark SHENANDOAH VALLEY CAMPGROUND for "providing campground facilities." Opposer alleged that the mark is merely descriptive under Section 2(e)(1) and primarily geographically descriptive under Section 2(e)(2). During its testimony period, however, opposer submitted only a declaration of its manager, along with one exhibit. Shenandoah Valley Campgrounds, LLC v. Falling Waters, Inc., Opposition No. 91221846 (August 17, 2016) [not precedential].

Rule 2.132(a) provides for the dismissal of an opposition on the ground of failure to prosecute if plaintiff's testimony period has expired and it has not taken testimony or offered any other evidence.

Testimony may be submitted by way of affidavit or declaration only upon agreement of the parties. Likewise, documents attached to a declaration or affidavit may be accepted into evidence only if the parties have so agreed. Here there was no such agreement.

Opposer feebly argued that the declaration was "impeachment evidence," but the Board observed that the declaration "was intended to introduce witness statements and evidence and is therefore, testimony." [Impeach what? Applicant hadn't testified yet? - ed.].

Because there was no agreement between the parties to allow testimony by way of declaration, Opposer's declaration and accompanying exhibit were improper and inadmissible.

The Board therefore granted applicant's motion to strike the declaration and exhibit. Since Opposer did not submit any admissible evidence or testimony in support of its asserted claims, and since applicant had not made any admissions in its answer (except as to standing), the Board granted the motion for involuntary dismissal.

Read comments and post your comment here.

TTABlog comment: This is a judgment on the merits, and so a petition for cancellation would be barred by claim preclusion.

Text Copyright John L. Welch 2016.


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