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 1, 2017
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`Opposition No. 91228601
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`LinkedIn Corporation
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`v.
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`Visceral Technologies, LLC
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`Geoffrey M. McNutt, Interlocutory Attorney:
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`This case comes before the Board for consideration of Opposer’s November 22,
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`2016, motion to compel Applicant’s initial disclosures and discovery responses.
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`Applicant did not file a response to the motion.
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`Opposer’s motion is timely and Opposer has demonstrated a good faith effort to
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`resolve the parties’ discovery dispute prior to seeking Board intervention.1
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`The parties’ initial disclosures were due by September 30, 2016. See 2 TTABVUE
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`4. Opposer served Applicant with a first set of interrogatories and first set of requests
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`for production of documents (collectively “the discovery requests”) on September 12,
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`2016. The discovery requests were served by email pursuant to the stipulation of the
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`parties, therefore Applicant’s responses were due within thirty days of the date of
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`1 Opposer filed its motion prior to the January 14, 2017, amendment of the Trademark Rules.
`Under prior Trademark Rule 2.120(e)(1) a motion to compel initial disclosures had to be filed
`prior to the close of the discovery period and a motion to compel discovery had to be filed prior
`to the commencement of the first testimony period as originally set or as reset.
`
`
`
`
`Trademark Trial and Appeal Board
`P.O. Box 1451
`Alexandria, VA 22313-1451
`General Contact Number: 571-272-8500
`
`
`
`
`
`
`
`
`
`
`
`Mailed: March 1, 2017
`
`Opposition No. 91228601
`
`LinkedIn Corporation
`
`
`v.
`
`Visceral Technologies, LLC
`
`
`
`
`
`
`
`
`
`Geoffrey M. McNutt, Interlocutory Attorney:
`
`This case comes before the Board for consideration of Opposer’s November 22,
`
`2016, motion to compel Applicant’s initial disclosures and discovery responses.
`
`Applicant did not file a response to the motion.
`
`Opposer’s motion is timely and Opposer has demonstrated a good faith effort to
`
`resolve the parties’ discovery dispute prior to seeking Board intervention.1
`
`The parties’ initial disclosures were due by September 30, 2016. See 2 TTABVUE
`
`4. Opposer served Applicant with a first set of interrogatories and first set of requests
`
`for production of documents (collectively “the discovery requests”) on September 12,
`
`2016. The discovery requests were served by email pursuant to the stipulation of the
`
`parties, therefore Applicant’s responses were due within thirty days of the date of
`
`
`1 Opposer filed its motion prior to the January 14, 2017, amendment of the Trademark Rules.
`Under prior Trademark Rule 2.120(e)(1) a motion to compel initial disclosures had to be filed
`prior to the close of the discovery period and a motion to compel discovery had to be filed prior
`to the commencement of the first testimony period as originally set or as reset.
`
`
`
`
`
`Opposition No. 91228601
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`service. In its motion, Opposer states that to date it has not received Applicant’s
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`initial disclosures or Applicant’s responses to the discovery requests. See Declaration
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`of Judd D. Lauter, ¶¶ 3 and 4–6 (11 TTABVUE 10–11).
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`A party that fails to respond to a request for discovery, and is unable to show that
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`its failure was the result of excusable neglect, may be found, upon motion to compel,
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`to have forfeited its right to object to the discovery requests on their merits. In view
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`of Applicant’s failure to file a response to Opposer’s motion to compel, there is nothing
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`in the record that indicates that Applicant’s failure to respond was the result of
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`excusable neglect. Applicant therefore has waived its right to object to Opposer’s
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`interrogatories and requests for production on the merits, and must respond in full
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`and without objection (except for objections based upon privilege), inasmuch as
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`Applicant neither timely responded nor objected to Opposer’s discovery requests. See
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`No Fear, Inc. v. Rule, 54 USPQ2d 1551, 1554 (TTAB 2000); see also TBMP
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`§§ 405.04(a) and 406.04(a) (January 2017). Accordingly, Opposer’s motion to compel
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`is granted on the merits and as conceded. See Trademark Rule 2.127(a).
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`Applicant must, within THIRTY DAYS from the mailing date of this order, serve
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`upon Opposer full and complete answers to Opposer’s first set of interrogatories and
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`first set of requests for production of documents, without objection (except for
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`objections based upon privilege), and must produce responsive, non-privileged
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`documents within its possession, custody, or control within the same thirty days.
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`Applicant is also directed to provide its initial disclosures within thirty days.
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`2
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`Opposition No. 91228601
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` To the extent Applicant objects to any interrogatory and/or document request
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`based upon privilege, Applicant is required to provide Opposer with a privilege log
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`within the thirty days set forth above. The privilege log must comply with the
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`requirements of Fed. R. Civ. P. 26(b)(5), which provides that “When a party withholds
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`information otherwise discoverable by claiming that the information is privileged or
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`subject to protection as trial-preparation material, the party must: (i) expressly make
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`the claim; and (ii) describe the nature of the documents, communications, or tangible
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`things not produced or disclosed—and do so in a manner that, without revealing
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`information itself privileged or protected, will enable other parties to assess the
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`claim.” Applicant is further advised that parties cannot withhold properly
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`discoverable information on the basis of confidentiality since the terms of the Board’s
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`standard protective order automatically apply to the exchange of information and
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`documents. See, e.g., Intex Recreation Corp. v The Coleman Co., 117 USPQ2d 1799,
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`1801 (TTAB 2016) (party may not redact confidential information from documents
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`responsive to document requests); Amazon Techs., Inc. v. Wax, 93 USPQ2d 1702, 1706
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`n.6 (TTAB 2009); TBMP § 412.01.
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`In the event that Applicant fails to comply with this order, the Board will entertain
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`a motion for sanctions. See Trademark Rule 2.120(h).
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`Proceedings are resumed and dates are reset as follows.
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`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
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`4/28/2017
`5/28/2017
`7/12/2017
`8/26/2017
`9/10/2017
`10/25/2017
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`
`
`3
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`
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`Opposition No. 91228601
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`Plaintiff’s Rebuttal Disclosures
`11/9/2017
`Plaintiff’s 15-day Rebuttal Period Ends
`12/9/2017
`The Federal Rules of Evidence generally 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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`periods. The parties may stipulate to a wide variety of matters, and many
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`requirements relevant to the trial phase of Board proceedings are set forth in
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`Trademark Rules 2.121 through 2.125. These include pretrial disclosures, the
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`manner and timing of taking testimony, matters in evidence, and the procedures for
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`submitting and serving testimony and other evidence, including affidavits,
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`declarations, deposition transcripts and stipulated evidence. Trial briefs shall be
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`submitted in accordance with Trademark Rules 2.128(a) and (b). Oral argument at
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`final hearing will be scheduled only upon the timely submission of a separate notice
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`as allowed by Trademark Rule 2.129(a).
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`4
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