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`TTAB
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`co
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`-
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`53
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD v
`3 :2
`
`‘T
`
`523
`
`Opposition No.: 155,965
`U. S. Appln. Serial No.: 76/388,837
`Mark: BUG-SUN TECHNOLOGIES
`
`) ) ) )
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`)
`)
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`) ) ) )
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`Schering-Plough HealthCare Products, Inc.,
`
`Opposer
`
`V.
`
`Mitchell R. Swartz,
`
`Applicant
`
`OPPOSER’S MOTION TO EXTEND DISCOVERY AND
`RESET THE TESTIMONY PERIODS
`
`Opposer moves for an Order resetting discovery to close on March 26, 2004 and resetting
`
`the testimony periods accordingly.
`
`The original Trial Order scheduled the close of discovery on November 1, 2003.
`
`The Trial Order was mailed on April
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`transpired:
`
`1
`
`2
`
`An answer was due on May 25, 2003.
`
`Opposer moved for a Notice of Default on June 19, 2003 because Applicant had
`
`not served any response to the Notice of Opposition.
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`3
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`Applicant responded to the Motion for Default on June 29, 2003 and moved to
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`enter opposition late.
`
`4
`
`Applicant filed a preliminary response to opposition on June 29, 2003.
`
`
`
`=4
`.
`5 FE,
`
`5
`
`Opposer replied to Applicant’s response to motion for default, motion to enter
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`oppésition late, and preliminary response to opposition on July 17, 2003.
`6
`TTAB entered an order denying Opposer’s motion for default and allowing
`thirty days to file an answer. The Board’s Order stated, “There is no question that
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`applicant’s response to the notice of opposition is late. . .. Even if the Board was [sic] to find
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`good cause, the Board is unable to accept Applicant’s ‘answer’ because, as pointed out by
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`Opposer, it is insufficient.” The Order allowed Applicant thirty days from August 28, 2003 to
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`file an answer that complied with Fed. R. Civ. P. 8.
`
`7
`
`Applicant served his response to the Opposition on September 24, 2003.
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`It would have been wasteful for Opposer to initiate discovery before it was certain that
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`Applicant would file a proper answer to the Notice of Opposition. Accordingly, Opposer was
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`unable to serve any discovery requests on Applicant prior to receiving the response to the notice
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`of opposition. That response was received on September 26, 2003. Opposer is equitably entitled
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`to a restoration of the discovery period so that Opposer will not be penalized by the delay caused
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`by Applicant’s failure to serve a proper response to the Notice of Opposition before September
`
`26, 2003.
`
`Accordingly, Opposer moves for the entry of the following discovery and trial schedule:
`
`Discovery to Close:
`
`March 26, 2004 -
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`30-day testimony period for party
`in position of Plaintiff to close:
`
`June 24, 2004
`
`30-day testimony period for party
`in position of Defendant to close:
`
`August 23, 2004
`
`
`
`15-day rebuttal testimony period
`for Plaintiff to close:
`
`October 7, 2004
`
`5%
`
`Respectfully submitted,
`
`-Ploug HealthCare Products, Inc.
`
`
`
`Sche '
`
`
` avid J. Kera
`Brian B. Darville
`
`Amy C. Cahill
`OBLON, SPIVAK, MCCLELLAND,
`
`MAIER & NEUSTADT, P.C.
`1940 Duke Street
`
`22314
`
`Alexandria, Virginia
`(703) 413-3000
`fax (703) 413-2220
`e-mail:
`tmdocketg6D,oblo11.com
`
`Attorneys for Opposer
`
`Date: October& ,2003
`
`DJK/ojb {|:\ATrY\DJK\1246-233818US-MoT.DoC}
`
`
`
`
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`3'11:
`5 \'=;
`.
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`CERTIFICATE OF SERVICE
`
`I hereby certify that a true copy of the foregoing OPPOSER’S MOTION TO EXTEND
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`DISIEOVERY AND RESET THE TESTIMONY PERIODS was served on counsel for
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`Petitiéner, this 8th day of October, 2003, by sending same via First Class mail, postage prepaid,
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`to:
`
`Dr. Mitchell Swartz
`
`16 Pembroke Road
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`Weston, Massachusetts 02493-2247
`
`LO
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