TTAB Dismisses LIVE RESIN Oppositions Under Rule 2.132(a) for Failure to Prosecute

The Board tossed out two oppositions to registration of the mark RAW GARDEN REFINED LIVE RESIN for CBD-containing herbs for smoking, for failure to prosecute. Opposer Adapted Energy claimed likely confusion with its registered mark LIVE RESIN for supplements. However, it introduced no evidence or testimony during its assigned testimony periods, nor did it timely submit a copy of its registration, and Applicant Central Coast made no admissions in its Answer. The Board granted Central Coast's motion to dismiss under Rule 2.132(a). Adaptive Energy LLC v. Central Coast Agriculture, Inc., Oppositions Nos. 91275644 and 91280840 (April 11, 2025) [not precedential].

Trademark Rule 2.132(a), provides, in relevant part, as follows: If the time for taking testimony by any party in the position of plaintiff has expired and it is clear to the Board from the proceeding record that such party has not taken testimony or offered any other evidence, the Board may grant judgment for the defendant.  * * * The party in the position of plaintiff shall have twenty days from the date of service of the motion to show cause why judgment should not be rendered dismissing the case. In the absence of a showing of excusable neglect, judgment may be rendered against the party in the position of plaintiff.

In response to the motion to dismiss, Adaptive Energy asserted that it "has been very clear from the inception of this Proceeding on the evidence and testimony that it is going to rely on" [sic]; that "[w]ith its Opening Brief Opposer will submit its Argument with Affidavits and evidence it is relying on in this case."

Of course, submitting evidence and testimony along with a party's opening brief is too late. "The Board will not consider evidence … attached to the briefs unless . . . properly made of record during the time assigned for taking testimony."

Adaptive Energy made no showing of excusable neglect, and so the Board deemed dismissal with prejudice to be appropriate.

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Text Copyright John L. Welch 2025.