Friday, July 18, 2008

Precedential No. 38: TTAB Dismisses Opposition as Untimely - Electronic Payment Incomplete and Faxed Filing Ineffective

The vibes were not good for Vibe Records, Inc. when its president tried to file an opposition to registration of the mark VIBE REVOLUTIONS for "Providing links to web sites of others featuring retail stores, coupons, online music purchases and magazine subscriptions." Applicant Vibe Media Group, LLC moved to dismiss on the ground that the notice of opposition was not timely filed. The Board agreed and dismissed the opposition as a nullity. Vibe Records, Inc. v. Vibe Media Group LLC, 88 USPQ2d 1280 (TTAB 2008) [precedential].

Opposer obtained an extension of time to March 14, 2007 within which to file its opposition. On March 13th, its president attempted to file a notice of opposition electronically, but payment of the fee was not successfully completed. Therefore Opposer received neither the onscreen "Receipt" nor the e-mail acknowledgment that accompanies a successful filing. The payment was electronically processed by the PTO via a charge to opposer's credit card on March 16, 2007, but that was too late (see Rule 2.101(d)(4)).

Perhaps recognizing the payment problem, Opposer on March 14th attempted to file the notice of opposition via facsimile. (This resulted in the notation "3/14/2007" appearing at the "bottom of the page" [sic] of the notice of opposition, indicating that the fax was received by the PTO on that date.)

However, Rule 2.195(d)(3) states that facsimile transmissions are not permitted and will not be accorded a date of receipt (except for notices of ex parte appeal). Therefore, the facsimile by Opposer "can be given no effect."

The Board therefore dismissed the opposition as a nullity, noting that Opposer's fee will be refunded and that Opposer's remedy in this matter "lies in a petition to cancel."

TTABlog note: Perhaps Opposer should have hired an attorney for the filing, which was attacked by Applicant not only on the ground of timeliness, but also for failing to state a claim.

Text Copyright John L. Welch 2008.


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