Monday, November 08, 2004

Leo Stoller loses again

Leo Stoller, frequent TTAB litigant, has lost another one. On October 8, 2004, the CAFC affirmed (in an unpublished opinion in Appeal No. 04-1305), the TTAB's decision in Stoller v. Ponce, Opp. No. 91120339 (Jan. 22, 2004). Here's the skinny on the Board's decision (from the item I wrote for the March 2004 issue of Allen's Trademark Digest): The Board dismissed this opposition to registration of the mark STEALTH SHELF for "shelving," on the ground that Opposer Leo Stoller failed to introduce properly any evidence to demonstrate standing or to support any of his pleaded grounds. 

The "testimonial depositions" submitted by Stoller were apparently prepared by him rather than a court reporter. As to his own deposition, Stoller asked a single "question": "I am submitting into evidence the attached affidavit of Leo Stoller in support of Opposer's opposition." The document was signed before a notary and an affidavit of Stoller was attached. The trial deposition of the other witness was submitted in like fashion.

The Board rejected these purported testimony depositions because they violate Trademark Rule 2.123: affidavits may be accepted as testimony only with the written agreement of the parties. Although Applicant Ponce, appearing pro se, did not move to strike Opposer's testimony, the Board refused to find the rule "for taking testimony by having questions and answers recorded by an officer to be a merely technical requirement . . . . Rather, such a procedure goes to the very heart of the taking of an oral deposition."


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