Monday, October 17, 2005

TTABlog Provides List of Leo Stoller TTAB Sanction Rulings

I recently had occasion to compile a list of TTAB cases involving sanctions issued against Mr. Stoller or one of his companies, and I thought I would share the list with my dear readers. Many of the rulings were deemed "not citable," and the Board has made it quite clear that such cases are not to be relied upon in arguments made to the Board. Nonetheless, I believe that when Stoller or one of his companies is the adverse party, it is appropriate to refer to these uncitable rulings if one is attempting to show a "pattern" of misconduct.

  • S Industries Inc. v. Lamb-Weston, Inc., 45 USPQ2d 1293 (TTAB 1997). The Board found Petitioner S Industries' certificate of mailing and certificate of service on a particular motion paper to be fraudulent, and it granted Respondent Lamb-Weston's motion for sanctions. Petitioner was prohibited from using the certificate of mailing procedure, and was required to serve all subsequent papers on Respondent by Express Mail.

  • S Industries Inc. v. S&W Sign Co., Opposition No. 102,907 (Dec. 16, 1999) [not citable]. Noting that "[t]he lack of credibility of Mr. Stoller is a matter of public record," the TTAB ordered him to copy by hand Rule 11 of the Federal Rules of Civil Procedure and certain section of the Trademark Rules of Practice, and to file a signed copy thereof with the Board.

  • Central Mfg. Inc. v. Third Millenium Technology, Inc., 61 USPQ2d 1210 (TTAB 2001). The Board sanctioned Leo Stoller individually on the ground that, in filing requests for extension of time to oppose on the basis of non-existent settlement negotiations, Stoller "acted in bad faith and for improper purposes, i.e., to obtain additional time to harass the applicant, to obtain unwarranted extensions of the opposition period, and to waste resources of applicant and the Board." Noting that Stoller and his various corporations appear regularly before the TTAB, the Board found that he "has engaged in a pattern" of submitting papers that are based on "false statements and material misrepresentations." For one year, Stoller was required to obtain written confirmation from any adversary when seeking an extension of time based upon consent or any alleged settlement discussion.

  • S Industries Inc. v. Casablanca Industries, Inc., Cancellation No. 24,330 (October 3, 2002) [not citable]. The Board dismissed this opposition on substantive grounds, but stopped short of also relying on equitable grounds, despite Petitioners' sanctionable misconduct. "[P]etitioners (S Industries Inc. and Central Mfg. Co.) consistently failed to follow proper Board practice and procedure at any stage [of] this proceeding; and they have engaged in numerous dilatory tactics to delay this proceeding ***. Moreover, petitioner's litigation strategy of delay, harassment and falsifying documents in other cases is well documented. *** Mr. Leo Stoller, petitioners' officer, has also recently been sanctioned, individually, for making material misrepresentations to the Board regarding an applicant's alleged consent to extensions of time."

  • S Industries Inc. v. JL Audio, Inc., Opposition No. 110,672 (May 13, 2003) [not citable]. The Board entered summary judgment against two of Leo Stoller's companies (S Industries Inc. and Central Mfg. Co.), finding that their claims of likelihood of confusion, nonownership, and fraud were "completely devoid of merit." Commenting on the behavior of Opposers in this proceeding, the Board observed that "Opposers' most recent proliferation of filings follows a pattern of voluminous and piece-meal motion practice against which opposers were warned." The Board noted (with case citations) that Leo Stoller's and Opposers' "litigation strategy of delay, harassment, and even falsifying documents is well documented," and it found "compelling evidence that, in essence, Leo Stoller and his companies have perpetuated their misdeeds in this case."

  • Central Mfg. Inc. v. Astec Industries, Inc., Opposition No. 116,821 (Sept. 30, 2003) [not citable]. After Opposer Central filed two meritless and repetitious Rule 11 motions, the Board entered judgment against Opposer as a sanction for its abuse of the Rule 11 process.

  • Central Mfg. Co. v. Medtronic Sofamor Danek Inc., Oppositions Nos. 91154585 and 91154617 (February 19, 2004) [not citable]. In view of various motions brought by Central that were "without merit, constitute harassment, and can only be assumed to have been brought for purposes of delay," the Board issued Rule 11 sanctions against Opposer, ordering discovery closed and prohibiting Opposer from filing any further motions without leave. The Board noted that:
    "While the Board is entering sanctions against opposer here based on opposer's behavior in this case, the Board is cognizant of our experiences in other cases involving the conduct of Mr. Stoller, Central Mfg. and other related entities, as well as the experience of the Seventh Circuit and the Northern District of Illinois. Said experiences may be considered as a 'history in this type of litigation.'"

  • Central Mfg. Co. v. Premium Prods. Co., Serial No. 91159950 (September 29, 2004) [not citable]. The Board sanctioned Opposer for omitting the postage meter stamp date from filings with the Board, in apparent violation of Postal Service regulations. The Board stated that it was "hard pressed to think of a more egregious act of bad faith than flouting the United States Postal Service regulations."

  • Stoller v. Northern Telepresence Corp., Opposition No. 91162195 (February 11, 2005) [not citable]. In an order granting Northern's motion to dismiss Stoller's opposition as a nullity, the Board exercised its "inherent authority to manage the cases on its docket" in order to "simplify matters" and "avoid unnecessary effort by the parties and undue delay." It ruled that it would "consider only those papers filed herein via the ESTTA system." [TTABlog discussion here].

    The genesis of that ruling, and the basis for dismissal, was Stoller's bumbling attempt to file a request for an extension of time to oppose Northern's application to register the mark DARKSTAR for infrared night vision systems. Stoller filed three different paper requests for a 90-day extension of time to oppose. The Board noted the "glaring discrepancies" among the three papers: "Put simply, the record does not support a conclusion that an extension request bearing a signed certificate of mailing was filed on or before the statutory deadline of February 27, 2003. Thus, potential opposer missed the statutory deadline to file an opposition."

  • Central Mfg. Co. v. Dreamworks L.L.C., Opposition No. 91156858 (April 6, 2005) [not citable]. The board issued an order [discussed here at the TTABlog] requiring Central to file all of its papers via ESTTA. Again, questions had arisen arose regarding the dates when Central had mailed certain documents:
    ". . . the Board recognizes that on at least two occasions, the Board has not received copies of opposer's filings. In fact, with respect to applicant's motion to join, the Board received applicant's reply and supplement thereto on April 1, 2005 and April 4, 2005, respectively, but, as noted above, the Board remains unsure whether opposer actually filed a response, and/or whether such response is timely. The Board also notes that applicant has used the Board's electronic filing systems (ESSTA) [sic!] for all filings in this matter, and the Board has had no problems receiving applicant's filings."

It is unfortunate that neither of the last two case was deemed citable. Requiring electronic filing would seem to be an approprate and attractive procedural device in any case in which questions arise regarding receipt of paper filings. In fact, to quote myself, "it seems inevitable that before too long the Board will require virtually all documents to be filed in electronic form." [See discussion here at the TTABlog] .

Text and photographs Copyright John L. Welch.


At 7:41 PM, Anonymous Anonymous said...

Go Leo!


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