No Evidence = No Cancellation of Registration for CASUAL COMFORT for Pillows

The Board denied a petition for cancellation of a registration for the mark CASUAL COMFORT for "Pillows, namely, bed pillows," because the petitioner failed to present testimony or properly introduce any other evidence during its initial testimony period to support its claims of abandonment, nonuse, and fraud. The Board rejected iEnjoy's construed motion to re-open its testimony period, filed some six months after the testimony period had closed, and then entered judgment in favor of Respondent Franktex. iEnjoy Ventures, LLC v. Franktex, Inc., Cancellation No. 92081122 (September 16, 2025) [not precedential].

The Board observed that a party may not take testimony or present evidence outside of its assigned testimony period (except by stipulation of the parties approved by the Board, or, on motion, by order of the Board). Trademark Rule 2.121(a). Petitioner iEnjoy's trial period ended on November 13, 2024. It then filed four consented motions to extend the deadline for its rebuttal disclosure deadline, but it did not seek to reopen its testimony period so that it could actually take testimony.

On May 5, 2025, iEnjoy filed its motion to take the deposition of Mr. HinFan Tsang, the corporate representative of Respondent Franktex. iEnjoy pointed out the Mr. Tsang was identified in Franktex's pre-trial disclosures and so iEnjoy expected to be able to cross-examine Mr. Tsang. However, Mr. Tsang's testimony was not taken by Franktex.

The Board construed this motion as seeking to re-open iEnjoy's testimony period. However, iEnjoy failed to establish the requisite excusable neglect that would permit re-opening. In fact, iEnjoy did not even address the applicable Pioneer factors, adopted by the Board in the Pumpkin case.

iEnjoy claimed that Franktex had failed to respond to its settlement proposal, thereby necessitating the belated taking of the deposition. The Board was unmoved.

Petitioner “brought this case and, in so doing, took responsibility for moving forward on the established schedule.” * * * “[I]t is well established that the mere existence of settlement negotiations…does not justify a party’s inaction or delay.” (citations omitted).

And so, the motion was denied.

The Board then chose to enter judgment for Franktex, sua sponte, because iEnjoy (who bore the burden of proof) failed to submit evidence or taken testimony during its assigned testimony period, and offered no other evidence.

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TTABlogger comment: So perhaps petitioner should consider a Section 1071 civil action wherein it may submit "additional" evidence?

Text Copyright John L. Welch 2025.