Thursday, October 25, 2007

Precedential No. 61: TTAB Finds Six-Days Notice of Testimony Deposition to be Reasonable

A hat tip to former TTAB Judge Beth Chapman for calling to my attention the Board's precedential interlocutory ruling in Sunrider Corp. v. Raats, 83 USPQ2d 1648 (TTAB 2007) [precedential]. The Board denied Applicant's motion for involuntary dismissal, ruling that Opposer's testimony deposition was reasonably noticed and admissible, and consequently that Opposer had not failed to introduce evidence during its testimony period.

Applicant Johannes W. Raats attempted to short circuit this opposition by claiming that Opposer's testimony deposition was inadmissible because (1) Opposer did not previously identify its witness; (2) the notice was facially defective because it erroneously referred to a third-party; and (3) the number of days between the notice and the deposition was only three business days (albeit six calendar days).

The Board sided with Opposer Sunrider on all three issues. As to (1), the Board noted that Opposer "was not required to identify its witnesses in advance of trial." [TTABlog note: this will soon change when the new TTAB rules go into effect on November 1st]. As to (2), the inadvertent reference to a third-party in the body of the notice was harmless, since there was "enough other correct information on the face of the notice." As to (3), six days' notice was reasonable; the Board does not count only business days in assessing the reasonableness of a deposition notice.

Therefore, Opposer properly submitted evidence during its testimony period, and Raats's motion for involuntary dismissal was meritless.

The Board noted that this was a "close question" [TTABlog comment: I don't know why.] and that the parties might have resolved the matter amicably. They could have agreed that testimony be taken outside the designated period, or that the deposition be taken by telephone. Moreover, they could have requested a telephone conference with a Board attorney.

The Board then resumed the proceeding and re-set Applicant's testimony period.

Text Copyright John L. Welch 2007.


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