Leo Stoller Loses CAFC Appeal From TTAB Dismissal Sanction

Leo Stoller closed the year 2005 with another loss at the CAFC. On December 30th, the appellate court dismissed Central Mfg. Co.'s appeal (No. 05-1566) from the TTAB's April 12, 2005 ruling in Central Mfg. Co. v Hepa Corp., Opposition No. 91152243. [not citable]. Central had opposed, on Section 2(d) grounds, Hepa Corporation's application to register the mark STEALTH 100 for air filters and fans. The Board dismissed the opposition as a sanction for Central's failure to comply with an order compelling discovery.

Hepa's STEALTH 100 Fan Filter Unit
Hepa moved for sanctions under Rule 2.122(g) in light of Central's lack of compliance. Central then moved to re-open its time to respond to Applicant's discovery requests -- i.e., it sought additional time to respond to the Board's order. With its reply brief on its motion, Central provided late responses to the discovery requests.

Central contended that a family emergency prevented its "representative," Leo Stoller, from responding to the discovery within the time set. Stoller said that he was occupied with caring for his mother, who had suffered a heart attack. The Board, applying the four factor test of Pioneer Investment Services Co. v. Brunswick Assoc. L. P., 507 U.S. 380 (1993), found that the delay was not the result of "excusable neglect." The Board noted the "total lack of specificity" in Central's arguments and "discrepancies among the facts reported concerning the nature of the family emergencies and the involved dates." Moreover, Stoller's claims were not "verified by way of an affidavit or a declaration."

The Board then granted Applicant Hepa's motion for discovery sanctions, and dismissed the opposition with prejudice.

In May, Central moved for re-consideration of the Board dismissal order, submitting a copy of his mother's death certificate. Because that was "new evidence," the Board refused to consider it. On July 12, the Board ruled that it "committed no error in determining that the specifics surrounding Mr. Stoller's unavailability during this time period are vague and unsupported by declaration or verification attesting to their veracity."

TTABlog update: The CAFC subsequently recalled the mandate in this case and has re-instituted the appeal. Apparently Appellant Central was able to clear up a problem regarding admission of its counsel to appear before the appellate court.

Text Copyright John L. Welch 2006.