UNITED STATES PATENT AND TRADEMARK OFFICE
`Trademark Trial and Appeal Board
`P.O. Box 1451
`Alexandria, VA 22313-1451
`General Contact Number: 571-272-8500
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`Mailed: March 30, 2017
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`Opposition No. 91217882
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`Monster Energy Company
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`v.
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`Monster, Inc.
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`Veronica P. White, Paralegal Specialist:
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`On March 23, 2017, Applicant filed a stipulated motion to suspend this proceeding
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`for 90-days to accommodate the parties’ continued settlement negotiations.1 The
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`Board construes the motion for suspension as a motion to reopen2 Applicant’s time to
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`file an answer to the notice of opposition.
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`It is noted that Applicant is in technical default. However, in view of the stipulated
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`motion to reopen time to answer, the technical default is set aside and the motion is
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`granted.
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`Because the parties are negotiating for a possible settlement of this case, proceed-
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`ings are suspended up to, and including June 3, 2017, subject to the right of either
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`1 The Board notes the certificate of service accompanying the motion failed to indicate that
`the filing was served by email. As of January 14, 2017, service must be made by email, unless
`the parties stipulate otherwise. See Trademark Rule 2.110(b). The Board may in the future
`decline to consider any paper which does not include proof of proper service.
`2 Inasmuch as the time to answer, as previously reset, expired on March 5, 2017 the motion
`is one to reopen.
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`
`
`
`Trademark Trial and Appeal Board
`P.O. Box 1451
`Alexandria, VA 22313-1451
`General Contact Number: 571-272-8500
`
`
`
`
`
`
`
`
`
`
`
`Mailed: March 30, 2017
`
`Opposition No. 91217882
`
`Monster Energy Company
`
`
`v.
`
`Monster, Inc.
`
`
`
`
`
`
`
`
`
`Veronica P. White, Paralegal Specialist:
`
`
`On March 23, 2017, Applicant filed a stipulated motion to suspend this proceeding
`
`for 90-days to accommodate the parties’ continued settlement negotiations.1 The
`
`Board construes the motion for suspension as a motion to reopen2 Applicant’s time to
`
`file an answer to the notice of opposition.
`
`It is noted that Applicant is in technical default. However, in view of the stipulated
`
`motion to reopen time to answer, the technical default is set aside and the motion is
`
`granted.
`
`Because the parties are negotiating for a possible settlement of this case, proceed-
`
`ings are suspended up to, and including June 3, 2017, subject to the right of either
`
`
`1 The Board notes the certificate of service accompanying the motion failed to indicate that
`the filing was served by email. As of January 14, 2017, service must be made by email, unless
`the parties stipulate otherwise. See Trademark Rule 2.110(b). The Board may in the future
`decline to consider any paper which does not include proof of proper service.
`2 Inasmuch as the time to answer, as previously reset, expired on March 5, 2017 the motion
`is one to reopen.
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`
`
`
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`Opposition No. 91217882
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`party to request resumption at any time. See Trademark Rules 2.117(c), and 2.127(a);
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`and TBMP § 605.02.
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`If, during the suspension period, either of the parties or their attorneys have a
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`change of address or email address, the Board should be so informed.3 See Trademark
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`Rule 2.18(b)(1).
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`Status Report Required for Any Future Motions to Suspend or Extend for Set-
`tlement
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`The Board retains discretion to condition the approval of a consented or stipulated
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`motion to suspend on the party or parties providing necessary information about the
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`status of settlement talks, discovery activities, or trial activities, as may be appropri-
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`ate. See Trademark Rule 2.117(c); TBMP §§ 510 and 605.02.
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`The Board has granted numerous motions to suspend (totaling more than two
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`years) to accommodate the parties’ settlement efforts. In view of the amount of time
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`already granted, any prospective motion to extend, suspend, or reopen, based on set-
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`tlement, must establish good cause by way of a detailed report setting forth what
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`progress the parties have made towards settlement during the previously granted
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`period of extension or suspension. This report must set forth, at a minimum, 1) all
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`dates on which the parties communicated, and the method of each commu-
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`nication (e.g. telephone, email, in-person meeting), 2) the general nature of
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`each communication, 3) the issues that have been resolved, 4) the issues that
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`remain to be resolved or that remain for trial, and 5) a proposed timetable
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`3 If the parties are (or during the pendency of this proceeding become) parties to another
`proceeding involving the subject application, the parties must notify the Board so the Board
`can consider whether consolidation or suspension of proceedings is appropriate.
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`2
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`Opposition No. 91217882
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`for resolution of the unresolved issues. Appropriately designated confidential
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`information or materials may be filed under seal and will be barred from public view-
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`ing. See Trademark Rule 2.126(c); TBMP § 605.02.
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`Due to this requirement, the parties may no longer use the ESTTA ”Consent Mo-
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`tions” forms to submit motions to extend or suspend dates for settlement. Rather, the
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`parties must select the “Opposition, Cancellation or Concurrent Use (general filings)”
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`option, the “Scheduling Motions” option, then the “Motion to Suspend for Settlement
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`Discussions” form to which the parties may attach the motion they prepared. The
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`motion must set forth both the required status report and a proposed trial schedule.4
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`The requirement to use the general filings ESTTA form is limited to consent motions
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`based on settlement discussions, and does not prohibit the use of ESTTA consent
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`forms for other filings.
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`Absent the required status report, a motion to suspend or extend may be denied,
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`even if consented to by the parties. If the Board denies such a motion, dates may
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`remain as previously set. See TBMP § 509.01(a).
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`In the event that there is no word from either party concerning the progress of
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`their negotiations, upon conclusion of the suspension period, proceedings shall re-
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`4 When parties stipulate to the rescheduling of a deadline for pretrial disclosures and
`subsequent testimony periods or to the rescheduling of the closing date for discovery
`and the rescheduling of subsequent deadlines for pretrial disclosures and testimony
`periods, a stipulation presented in the form used in a trial order, signed by the par-
`ties, or a motion in said form signed by one party and including a statement that
`every other party has agreed thereto, shall be submitted to the Board through
`ESTTA, with the relevant dates set forth and an express statement that all parties
`agree to the new dates. See Trademark Rule 2.121(d).
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`3
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`Opposition No. 91217882
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`sume June 4, 2017 without further notice or order from the Board, upon the schedule
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`set forth below.
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`Time to Answer
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`Deadline for Discovery Conference
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`Discovery Opens
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`Initial Disclosures Due
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`Expert Disclosures Due
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`Discovery Closes
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`Plaintiff's Pretrial Disclosures
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`Plaintiff's 30-day Trial Period Ends
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`Defendant's Pretrial Disclosures
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`7/4/2017
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`8/3/2017
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`8/3/2017
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`9/2/2017
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`12/31/2017
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`1/30/2018
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`3/16/2018
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`4/30/2018
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`5/15/2018
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`Defendant's 30-day Trial Period Ends
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`6/29/2018
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`Plaintiff's Rebuttal Disclosures
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`7/14/2018
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`Plaintiff's 15-day Rebuttal Period
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`8/13/2018
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`Ends
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`Plaintiff's Opening Brief Due
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`Defendant's Brief Due
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`Plaintiff's Reply Brief Due
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`
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`10/12/2018
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`11/11/2018
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`11/26/2018
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`Generally, the Federal Rules of Evidence apply to Board trials. Trial testimony is
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`taken and introduced out of the presence of the Board during the assigned testimony
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`4
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`Opposition No. 91217882
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`periods. The parties may stipulate to a wide variety of matters, and many require-
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`ments relevant to the trial phase of Board proceedings are set forth in Trademark
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`Rules 2.121 through 2.125. These include pretrial disclosures, the manner and timing
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`of taking testimony, matters in evidence, and the procedures for submitting and serv-
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`ing testimony and other evidence, including affidavits, declarations, deposition tran-
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`scripts and stipulated evidence. Trial briefs shall be submitted in accordance with
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`Trademark Rules 2.128(a) and (b). Oral argument at final hearing will be scheduled
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`only upon the timely submission of a separate notice as allowed by Trademark Rule
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`2.129(a).
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`5
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