Tuesday, June 30, 2009

TTAB Denies Motion to Amend Cancellation Petition to Add New Classes Because Fee Did Not Accompany Motion

Maybe it's just me, but I found this decision surprising. Petitioner Fred Beverages filed a motion to amend its petition for cancellation of Registration No. 3051906, seeking to add four more classes to the petition. The Board denied the motion because it "was not accompanied by any payment or authorization to charge respondent's [sic] deposit account for any of the additional classes sought to be cancelled." Fred Beverages, Inc. v. Fred's Capital Management Company, Cancellation No. 92048454 (June 26, 2009) [not precedential].

The Board cited Rule 2.111(c)(1) for the proposition that a petition for cancellation "must be accompanied by the required fee ... for each class in the registration for which cancellation is sought." It noted that Rule 2.112(b) similarly states that "[t]he required fee must be included ... for each class sought to be cancelled."

But Fred Beverages wasn't filing a petition for cancellation. It was filing a motion for leave to amend its current petition. If and when leave were granted, presumably Fred Beverages would have paid the fee when it filed the new petition.

This decision seems wrong to me. What do you think?

Text Copyright John L. Welch 2009.


At 8:59 AM, Blogger Frank said...

I agree that Fred Beverages got a raw deal. This is not in the spirit of the Lanham Act. I would appeal.

At 9:02 AM, Anonymous Anonymous said...

I agree, John. You could not do that in an electronic filing (I think) so you'd have to go the paper route and enclose a check.

Having said that, the decision is not as "out there" as it may seem on first blush. You are required to file an amended petition with the motion, so there is some logic in also requiring the filing of the fee.

Paul Reidl
Law Office of Paul W. Reidl

At 6:24 AM, Blogger John L. Welch said...

Is the denial of Petioner's motion for leave to amend an appealable issue?

At 6:21 PM, Anonymous Anonymous said...

I think the TTAB has out procedured itself yet again.

At 3:10 PM, Anonymous Anonymous said...

Trademark Rule 2.206(a) reads: "Trademark fees and charges payable to the Office are required to be paid in advance; that is, at the time of requesting any action by the Office for which a fee or charge is payable."


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