`
`4:‘
`
`W976
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`
`
`09-22-2003
`u_s. Pltent & TMorclTM Mall Rent DI. Q73
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`CERTIFICATION UNDER 37 CFR § l.8
`I hereby certify that the documents referred to as enclosed herein are being
`deposited with the United States Postal Service as first class mail on this
`ifseigacrfilegsbrhmlfsifigggfgf'Pr~i:d‘e:r'1:rmp;9I)‘I)dgr?;gl‘Dri§2iiglihgtlzii,
`VA 22202-3513
`
`
`
`Opposition No. 1 18,919
`
`)
`)
`)
`)
`)
`
`) )
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`)
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`Sterling Software, Inc.
`
`Opposer
`W
`
`VS.
`
`Atwood Daniel Cool
`
`Applicant
`
`Box TTAB
`
`NO FEE
`
`Assistant Commissioner for Trademarks
`
`2900 Crystal Drive
`Arlington, VA 22202-3513
`
`APPLICANT’S MOTION TO SET ASHDE DEFAULT
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`Applicant respectfully requests that the Board disregard Applicant’s previously
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`filed Motion to Suspend Proceedings and submits this Motion to Set Aside Default in lieu
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`thereof.
`
`Fed. R. Civ. P. 5 5(c) provides that "[f_|or good cause shown, the court may set
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`aside an entry of default."
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`“Good cause for discharging a default is generally found if (1) the delay in filing
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`is not the result of willful conduct or gross neglect, (2) the delay will not result in substantial
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`prejudice to the opposing party, and (3) the defendant has a meritorious defense?’ Delorme
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`Publishing., 2000 WL 3332122, at *1 (TTAB Nov. 2, 2000). In analyzing the above factors, the
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`Board is mindful that the law strongly favors determination of cases on their merits. Id. (citing
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`Gray Cary\GT\6365452
`105660-900005
`
`1
`
`
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`CTRL Systems Inc. v. Ultraphonics ofNorth America Inc., 52 USPQ 2d 1300, 1301 (TTAB
`
`1999)).
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`Generally, this motion should be granted because the parties have been engaged
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`in settlement discussions that, if successful, will result in the termination of this proceeding.
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`Further, this short delay will not result in any prejudice to the opposing party.
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`Opposer did not file a motion for default judgment on July 12, 2003 the date App1icant’s answer
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`was due. Further, there is no evidence that witnesses or evidence have become unavailable due
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`to the passage of time. Delorme Publishing., 2000 WL 3332122, at *1 (finding lack of undue
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`prejudice where Applicant failed to file answer for six months). Moreover, the delay in filing the
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`answer was not due to willful misconduct or gross neglect. Applicant filed its answer shortly
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`after the due date, and the late filing was due to an inadvertent mistake. Fred Hayman Beverly
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`Hills, Inc. V. Jacques Bernier, Inc., D.B.A. Parfums Gianelli, 21 USPQ 2d 1556 (TTAB 1991)
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`(finding good cause where late answer filed due to inadvertence). Upon realizing its error,
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`Applicant quickly filed its answer and cured the oversight. Finally, Applicant must rnerely show
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`that “a plausible response to the allegations contained in the notice of opposition has been
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`made.” Delorme Publishing., 2000 WL 3332122, at *1. App1icant’s answer, filed on August 15,
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`2003, is a plausible response and is not frivolous. Thus, Applicant has a meritorious defense.
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`For the foregoing reasons, App1icant’s Motion To Set Aside Default should be
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`GRANTED.
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`Gray Cary\G”I\6365452
`105660-900005
`
`2
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`
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`Applicant is not aware of any filing fees, but if there are any, the Commissioner is
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`hereby authorized to charge any additional fees which may be required, to Deposit Account No. 07-
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`1895.
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`Respectfiilly submitted,
`
`
`
`Jo M. Kim‘, Esq.
`Attorneys for Applicant
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`Dated: September 19, 2003
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`GRAY CARY WARE & FREIDENRICH LLP
`
`4365 Executive Drive, Suite 1100
`San Diego, California 92121-2133
`Telephone:
`(858) 638-6859
`Facsimile:
`(858) 677-1400
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that a copy of the foregoing
`Applicant’s Motion to Set Aside Default was
`mailed by first-class mail, postage prepaid, to
`Anita Nesser, Baker Botts, L.L.P., 2001 Ross
`Avenue, Suite 600, Dallas, TX 75201-2980
`thi
`th Day of Septe
`erg 3003,
`
`
`
`Laura Lee Samayoa
`(type name of person mailing)
`
`Gray Cary\GT\6365452
`105660-900005
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