UNITED STATES PATENT AND TRADEMARK OFFICE
`Trademark Trial and Appeal Board
`P.O. Box 1451
`Alexandria, VA 22313-1451
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` Mailed: July 21, 2013
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`Opposition No. 91208759
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`Wakefern Food Corp.
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`v.
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`Live Right LLC
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`wbc
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`Wendy Boldt Cohen, Interlocutory Attorney:
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`On March 1, 2013, opposer filed a motion for default
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`judgment for failure by applicant to serve its answer and an
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`alternative motion to strike.1 The motions are fully briefed.
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`The Board determined that the motions should be resolved by
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`telephone conference. See Trademark Rule 2.120(i)(1); TBMP §
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`502.06(a)(2013). On July 17, 2013, such conference was held
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`between opposer’s attorney Brian Coleman, applicant Donna
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`Risley, and Board attorney Wendy Boldt Cohen.
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`The parties’ arguments are set forth in their respective
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`briefs and will not be summarized herein.
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`Motion to Suspend
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`1 A copy of the answer may be obtained at
`http://ttabvueint.uspto.gov/ttabvue/v?pno=91208759&pty=OPP&eno=4.
`Future filings must comply with the service requirements in Trademark
`Rule 2.119 and TBMP Section 113 (2013). Strict compliance with
`Trademark Rule 2.119 is required in all future submissions filed with
`the Board.
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`

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`Opposition No. 91208759
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`As an initial matter, the Board order of March 26, 2013
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`is hereby vacated. Opposer filed a motion to suspend (filed
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`March 1, 2013) proceedings pending disposition of the motion
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`for default judgment and the motion to strike. Applicant
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`contests the motion to suspend.
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`Pursuant to Trademark Rule 2.127(d), when a party to a
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`Board proceeding files a motion which is potentially
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`dispositive of the proceeding the case will be suspended by
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`the Board with respect to all matters not germane to the
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`motion. See Pegasus Petroleum Corp. v. Mobil Oil Corp., 227
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`USPQ 1040, 1044 n.7 (TTAB 1985); TBMP § 510.03(a). When
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`issuing its suspension order, the Board ordinarily treats
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`the proceeding as if it had been suspended as of the filing
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`date of the potentially dispositive motion. See Leeds
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`Technologies Ltd. V. Topaz Communications Ltd., 65 USPQ2d
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`1303, 1305-06 (TTAB 2002); TBMP § 510.03(a).
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`As the motion for default judgment is a potentially
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`dispositive motion, the Board treats the filing of the motion
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`as tolling the dates herein. The motion to suspend is well-
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`taken. Nonetheless, in view of the order and resetting of
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`dates herein, the motion to suspend is moot.
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`Motion for Default Judgment/Strike
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`A copy of the answer, and any exhibits thereto, must be
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`filed with the Board. TBMP § 311.01(c). Another copy of the
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`2
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`Opposition No. 91208759
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`answer, with any exhibits thereto, must be served by the
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`defendant upon the attorney for the plaintiff, or on the
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`plaintiff if there is no attorney. Id. The answer must bear
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`proof (e.g., a certificate of service, consisting of a
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`statement signed by the filing party, or by its attorney or
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`other authorized representative, clearly stating the date and
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`manner in which service was made) that such service has been
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`made before the paper will be considered by the Board. Id;
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`See also TBMP § 113.
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`When a party to an inter partes proceeding before the
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`Board files a document required by 37 CFR § 2.119(a) to be
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`served upon every other party to the proceeding, proof that
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`the required service has been made ordinarily must be
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`submitted before the filing will be considered by the Board.
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`Occasionally, in order to expedite matters, and when the
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`interests of the other party or parties would be served
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`thereby, the Board itself will serve, along with an action of
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`the Board relating thereto, a copy of a document that does
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`not include the required proof of service. TBMP § 113.02.
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`It is the view of the Board that submitting an answer
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`without proof of service of a copy thereof upon opposer is
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`not a proper basis for entry of a default judgment against an
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`applicant. Thrifty Corporation v. Bomax Enterprises, 228
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`USPQ 62, 63 n.2 (TTAB 1985).
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`3
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`Opposition No. 91208759
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`Accordingly, opposer’s motion for default judgment is
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`denied.2 Applicant’s amended answer filed with its response
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`to the motion for default judgment shall be treated as the
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`operative pleading.3
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`2 Applicant is advised, however, that the Board will look with
`disfavor upon any further failure to comply with Board rules or
`the Trademark Rules of Practice.
` It appears that applicant intends to represent itself in this
`proceeding. While Patent and Trademark Rule l0.l4 permits any
`person to represent itself, it is generally advisable for a
`person who is not acquainted with the technicalities of the
`procedural and substantive law involved in inter partes
`proceedings before the Board to secure the services of an
`attorney who is familiar with such matters. The Patent and
`Trademark Office cannot aid in the selection of an attorney.
` In defending this opposition, applicant should review the
`Trademark Rules of Practice and the Trademark Board Manual of
`Procedure, online at
`http://www.uspto.gov/trademarks/process/appeal/index.jsp.
` Strict compliance with the Trademark Rules of Practice and
`where applicable, the Federal Rules of Civil Procedure, is
`expected of all parties before the Board, whether or not they are
`represented by counsel.
` In addition, applicant is advised that, under Patent and
`Trademark Rule 11.18(b),
`[b]y presenting to the Office ... any paper, the party
`presenting such paper ... is certifying that ... [t]o
`the best of the party’s knowledge, information and
`belief, formed after an inquiry reasonable under the
`circumstances, ... [t]he paper is not being presented
`for any improper purpose, such as to harass someone or
`to cause unnecessary delay or needless increase in the
`cost of any proceeding before the Office; ... [and
`t]he allegations and other factual contentions have
`evidentiary support or, if specifically so identified,
`are likely to have evidentiary support after a
`reasonable opportunity for further investigation or
`discovery.
`See also Fed. R. Civ. P. 11(b); TBMP § 527.02.
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` 3
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` The Board notes that the amended answer filed with applicant’s
`response contains a certificate of service upon counsel for
`opposer. A party may amend its pleading only by written consent
`of every adverse party or by leave of the Board; and leave must
`be freely given when justice so requires. See Fed. R. Civ. P.
`15(a); TBMP § 507.02. Inasmuch as opposer withdrew its motion to
`4
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`

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`Opposition No. 91208759
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`Dates are reset as follows:
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`Deadline for Discovery Conference4
`Discovery Opens
`Initial Disclosures Due
`Expert Disclosures Due
`Discovery Closes
`Plaintiff's Pretrial Disclosures
`Plaintiff's 30-day Trial Period Ends
`Defendant's Pretrial Disclosures
`Defendant's 30-day Trial Period Ends
`Plaintiff's Rebuttal Disclosures
`Plaintiff's 15-day Rebuttal Period Ends
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`8/30/2013
`8/30/2013
`9/29/2013
`1/27/2014
`2/26/2014
`4/12/2014
`5/27/2014
`6/11/2014
`7/26/2014
`8/10/2014
`9/9/2014
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`In each instance, a copy of the transcript of testimony
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`together with copies of documentary exhibits, must be served
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`on the adverse party within thirty days after completion of
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`the taking of testimony. Trademark Rule 2.l25.
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`Briefs shall be filed in accordance with Trademark Rule
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`2.128(a) and (b). An oral hearing will be set only upon
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`request filed as provided by Trademark Rule 2.l29.
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`strike during the telephone conference and alleges in its reply
`that it will “refrain from objecting to the form of [applicant’s]
`answer as a replacement filing,” the Board construes this
`language as opposer consenting to the amended answer.
`Accordingly, the amended answer is hereby made of record and the
`motion to strike will receive no further consideration.
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` 4
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` Prior to suspension of proceedings pending disposition of the
`motions at hand, applicant requested Board participation in the
`required discovery conference. Applicant has confirmed it still
`requests Board participation in the discovery conference. The
`parties are hereby directed to confer with one another to
`determine their availability for the discovery conference and
`provide the Board interlocutory attorney with proposed dates and
`times.
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`5