Friday, May 08, 2009

Lost and Found: 2007 TTAB Precedential Decision Rejects Belated Supplemental Discovery Responses

Like a squirrel finding a long misplaced nut, the USPQ in its latest weekly update has unearthed a precedential decision from September 2007 involving an unsuccessful attempt by a cancellation respondent to supplement its discovery responses after petitioner's testimony period had closed. The Board struck the tardy evidence and then granted the petition for cancellation of a registration for the mark KRAZY KORN for "toasted corn product for snack purposes" on the ground of abandonment. Quality Candy Shoppes/Buddy Squirrel of Wisconsin, Inc. v. Grande Foods, Cancellation No. 92044407 (September 5, 2007) [precedential].

Motion to Strike: Petitioner Buddy Squirrel moved to strike three of Respondent Grande's exhibits submitted with its notice of reliance. The Board had deferred consideration of the motion until final decision. The three exhibits comprised certain sales documents provided in lieu of interrogatory answers, and supplemental responses to Squirrel's interrogatories and admission requests. These documents were produced more than one month after Squirrel's testimony period had closed, and a mere four days before Respondent took its own testimony. Grande claimed that it needed to "clarify" the use of the mark by its distributor.

Squirrel contended that Respondent failed to justify its failure to supplement earlier, citing Fed. R. Civ. P. 37(c) and 26(e)(2), and it noted that Grande made no claim that new information was discovered. Instead, Grande claimed that it "changed its interpretation of petitioner's requests."

In addition, Grande cited Rule 2.120(j)(5), contending that submission of these supplemental responses was necessary because Squirrel had submitted at trial fewer than all of respondent's discovery responses and it was therefore necessary to submit additional responses for "fairness and completeness."

The Board embraced Buddy Squirrel's position, saying to Respondent, in effect, "are you nuts?" The responses that Respondent contends were "omitted" by Squirrel "were not even provided to petitioner until after petitioner's testimony period closed." Moreover, a party must respond completely to discovery and must supplement its responses as soon as it becomes aware of new information. Fed. R. Civ. P. 26(e).

As to Respondent's "misunderstanding" of the discovery requests, the Board found that assertion "specious." In any case, the supplemental responses were untimely and Respondent gave no "viable" reason for its delay.

And so the Board struck the three exhibits, and furthermore struck the testimony of Respondent's witnesses that pertained to facts disclosed only in the stricken exhibits.

Abandonment: In its original responses to Squirrel's discovery demands, Grande admitted that "it did not sell any toasted corn products for snack purposes in interstate commerce in connection with the trademark KRAZY KORN in any of the years 2000 through 2004." That established Squirrel's prima facie case of abandonment. Respondent had no evidence in the record as to its intent to resume use, and therefore it failed to rebut Squirrel's case.

Consequently, the Board found the mark to be abandoned, and it granted the petition for cancellation.

Tip from the TTABlog: Don't squirrel away your evidence, buddy, or you may wind up like Veruca Salt!

TTABlog Trademark Drivel: Frankly, I think this case could have remained buried with little or no harm to our grasp of TTAB jurisprudence.

BTW: as to the identification of goods in the now-deceased registration, wouldn't "toasted corn snack" have been more aptly succinct?

Text Copyright John L. Welch 2009.


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