Precedential No. 28: TTAB Gives Opposer Leave to Correct Its Botched Notice of Reliance and Testimony Declaration

In this Section 2(d) opposition to registration of the mark MOSAIC for "Collectible trading cards; Sports trading cards," Opposer RLP Ventures, appearing pro se, seriously botched its attempt to submit evidence and testimony. The Board struck RLP's notice of reliance but nonetheless allowed it to file an amended notice, and the Board re-opened RLP's testimony period so it could file a supplemental testimony declaration authenticating certain exhibits. RLP Ventures, LLC v. Panini America, Inc., 2023 USPQ2d 1135 (TTAB 2023) [precedential].

Notice of Reliance: RLP "dumped into the record" numerous documents not admissible by notice of reliance: Panini's discovery requests, RLP's own disclosures and discovery responses, and RLP's documents responsive to Panini's production requests. 

Opposer has made it difficult for the Board to locate the evidence which will be considered, leaving the Board to separate the wheat from the chaff and ferret out possibilities in Opposer's effective document dump, an unnecessary burden and waste of the Board's limited resources.

The Board therefore struck RLP's notice of reliance in its entirety but allowed it to file a "proper notice of reliance" confined to those documents already properly submitted: Panini's initial disclosures and its responses to RLP's discovery requests, and certain Internet materials and official records. Although RLP did not "indicate generally the relevance of the evidence and associate it with one or more issues in the proceeding," as required by Rule 2.122(g), that omission is "a procedural defect that can be cured by the offering party within the time set by Board order," without requiring that the testimony period be re-opened. RLP was directed to "associate each document with a specific element or fact in the case."

Testimony Declaration: Panini objected to several exhibits attached to RLP's testimony declaration as lacking proper foundation. The Board noted that ordinarily a party must show "excusable neglect" in order to re-open its testimony period. However, it also noted that, in an oral testimony deposition, a party may amend its testimony immediately upon objection to foundation, without having to show "excusable neglect." The Board took this into account in deciding to allow RLP to correct its testimony declaration.

In the unique circumstances of this case, in which nearly all of Opposer’s case has been improperly submitted, the Board will not further delay this proceeding by requiring Opposer to file a motion to reopen to cure the testimony laying the foundation for exhibits in the Prioleau Declaration. Proceedings already are delayed to allow Opposer to file an amended notice of reliance . . . . * * * [T]he Board sua sponte reopens Opposer’s testimony period for the sole purpose of allowing Opposer, if it finds it necessary, to file a supplemental declaration by Ramona Prioleau curing alleged procedural defects raised by Applicant in her foundation testimony for the exhibits referenced in her original declaration, by laying a proper foundation for any such document previously submitted during Opposer’s main trial period.

And so, the Board re-set the trial and briefing schedule to reflect its rulings.

Read comments and post your comment here.

TTABlogger comment: Why do you think this order was deemed precedential?

Text Copyright John L. Welch 2023.