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`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
`General Email: TTABInfo@uspto.gov
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`February 1, 2022
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`Opposition No. 91271346
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`FCA US LLC
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`v.
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`Shaojia GUO
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`By the Trademark Trial and Appeal Board:
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`On October 17, 2021, the Board issued a notice of default under Fed. R. Civ. P.
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`55(a) because no answer was of record, 4 TTABVUE. On October 19, 2021, Applicant
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`filed a motion to set aside the notice of default and also filed his answer, 5 TTABVUE.
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`Opposer filed a brief in opposition to the motion, 8 TTABVUE.
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`A notice of default is essentially an ex parte matter between the Board and a
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`defaulting defendant that does not contemplate full briefing by the parties. Thus, a
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`response to a notice of default should be captioned as a response and not as a motion.
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`Compare TBMP §§ 312.01 with 502.02 (2021). Captioning a response to a notice of
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`default as a motion invites further briefing which is rarely useful and usually only
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`delays resolution of the default.
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`However, the issue of a defendant’s default is raised, the determination of whether
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`default judgment should be entered against a party is made in accordance with Fed.
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`R. Civ. P. 55(c), which reads in pertinent part: “for good cause shown the court may
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`Opposition No. 91271346
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`set aside an entry of default.” As a general rule, good cause to set aside a defendant’s
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`default will be found (1) where the defendant’s delay has not been willful or in bad
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`faith, (2) when prejudice to the plaintiff is lacking, and (3) where the defendant has
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`a meritorious defense. See Fred Hayman Beverly Hills, Inc. v. Jacques Bernier Inc.,
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`21 USPQ2d 1556, 1556 (TTAB 1991). The determination of whether default judgment
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`should be entered against a party lies within the Board’s sound discretion. In
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`exercising that discretion, the Board only reluctantly enters judgment by default for
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`failure to timely answer. See TBMP § 312.02.
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`The Board notes initially that Opposer, in opposition to Applicant’s motion, argues
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`the stricter standard for setting aside a default judgment rather than the applicable
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`standard for setting aside a notice of default prior to entry of judgment, 8 TTABVUE
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`4-8. Compare TBMP § 312.02 with TBMP § 312.03. Bearing in mind that Applicant
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`filed his answer two days after the issuance of the notice of default and thirteen days
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`late, the Board finds that Applicant’s failure to timely answer was inadvertent,
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`having been caused by his being a foreign resident and possible first-time litigant
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`before the Board1 who was “seeking a qualified counsel representing him before the
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`TTAB of this opposition proceeding,” 5 TTABVUE 8. In addition, there is no
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`indication of any prejudice to Opposer.2 Further, Applicant has set forth a meritorious
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`1 A review of the TTABVUE database indicates that Applicant is not a party to any other
`Board proceedings.
`2 “Prejudice” refers to an adversary’s ability to litigate a case, e.g., where a party’s delay has
`resulted in a loss or unavailability of evidence or witnesses that otherwise would have been
`available to the nonmovant. See Pumpkin Ltd. v. Seed Corps, 43 USPQ2d 1582, 1587 (TTAB
`1997).
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`2
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`Opposition No. 91271346
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`defense by way of the denials in his concurrently filed answer.3 See DeLorme
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`Publishing Co. v. Eartha's Inc., 60 USPQ2d 1222, 1224 (TTAB 2000) (a meritorious
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`defense requires only “a plausible response to the allegations contained in the notice
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`of opposition”); Fred Hayman Beverly Hills Inc. v. Jacques Bernier Inc., 21 USPQ2d
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`1556, 1557 (TTAB 1991) (“by the submission of an answer which is not frivolous,
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`applicant has adequately shown that it has a meritorious defense”); Fed R. Civ. P.
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`8(b) (in an answer, a defendant need only set forth defenses and admit or deny the
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`allegations of the complaint).
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`Based on the foregoing, Applicant’s motion to set aside his default is granted, and
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`his answer is accepted as the operative responsive pleading herein. Remaining dates
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`are reset as follows.
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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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`3/4/2022
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`3/4/2022
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`4/3/2022
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`8/1/2022
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`8/31/2022
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`Plaintiff's Pretrial Disclosures Due
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`10/15/2022
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`Plaintiff's 30-day Trial Period Ends
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`11/29/2022
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`Defendant's Pretrial Disclosures Due
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`12/14/2022
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`Defendant's 30-day Trial Period Ends
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`1/28/2023
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`Plaintiff's Rebuttal Disclosures Due
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`2/12/2023
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`Plaintiff's 15-day Rebuttal Period Ends 3/14/2023
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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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`5/13/2023
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`6/12/2023
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`6/27/2023
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`Request for Oral Hearing (optional) Due
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`7/7/2023
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`3 Whether Applicant can prevail herein is a matter for resolution after introduction of
`evidence at trial or upon properly filed motion for summary judgment. See Prosper Bus. Dev.
`Corp. v. Int’l Bus. Machs., Corp., 113 USPQ2d 1148, 1152 (TTAB 2014)
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`3
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`Opposition No. 91271346
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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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`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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`TIPS FOR FILING EVIDENCE, TESTIMONY, OR LARGE DOCUMENTS
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`The Board requires each submission to meet the following criteria before it will be
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`considered: 1) pages must be legible and easily read on a computer screen; 2) page
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`orientation should be determined by its ease of viewing relevant text or evidence, for
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`example, there should be no sideways or upside-down pages; 3) pages must appear in
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`their proper order; 4) depositions and exhibits must be clearly labeled and numbered
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`– use separator pages between exhibits and clearly label each exhibit using sequential
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`letters or numbers; and 5) the entire submission should be text-searchable.
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`Additionally, submissions must be compliant with Trademark Rules 2.119 and 2.126.
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`Submissions failing to meet all of the criteria above may require re-filing.
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`4
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`Opposition No. 91271346
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`Note: Parties are strongly encouraged to check the entire document before filing.4
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`The Board will not extend or reset proceeding schedule dates or other deadlines to
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`allow time to re-file documents. For more tips and helpful filing information, please
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`visit the ESTTA help webpage.
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`4 To facilitate accuracy, ESTTA provides thumbnails to view each page before submitting.
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`5
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