Monday, April 12, 2010

CAFC Hears Oral Argument In Fred Beverages Fee Payment Case

The CAFC heard oral argument on Friday, April 9th, in an appeal from the TTAB's decision in Fred Beverages, Inc. v. Fred's Capital Management Company, Cancellation No. 92048454 (June 26, 2009) [not precedential]. 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." An mp3 of the oral argument may be found here (Appeal No. 2010-1007).

As I stated in the TTABlog posting here, I thought the Board's decision was wrong because there is no Rule requiring that a party pay the fee for a cancellation petition when the party is merely filing a motion for leave to file the petition. Two former TTAB judges have told me that they disagree with me.

Based on its comments and questions at the hearing, however, I surmise that the CAFC believes that the Board erred because it acted arbitrarily in denying the motion when the Rules do not require that payment accompany such a motion, and because the Board has acted inconsistently in other cases by granting leave to amend and allowing a short time period to pay the fee for the cancellation petition.

Text Copyright John L. Welch 2010.


At 9:37 AM, Anonymous Rob said...

I would hate to be in Appellee's shoes. There's no defending that Board decision. The one argument raised by Appellee, that Appellant could have petitioned the Director, is wrong. The decision on the motion for leave to amend was made part of the Board's final disposition of the case. Only an interlocutory decision of the Board is petitionable to the Director.

As for the odds of reversal on petition to the Director, those are even lower that the odds of a favorable reconsideration by the Board.


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