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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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`March 27, 2023
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`Opposition No. 91282766
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`Mercedes-Benz Group AG
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`v.
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`Pickin’ Cotton Communications
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`Jill M. McCormack, Interlocutory Attorney:
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`On March 9, 2023, the Board participated in the discovery conference. TRADEMARK
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`TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP) § 401.01 (2022). The
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`participants were William Wright and Hannah Rosenson, counsel for Opposer; Matt
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`Fogarty, Chief Operations Officer for Applicant, appearing pro se; and Jill
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`McCormack, attorney for the Board.
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`I.
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`INFORMATION REGARDING LEGAL REPRESENTATION
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`It is noted that Applicant intends to represent itself in this proceeding. While
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`Patent and Trademark Rule 11.14 permits a party domiciled in the United States to
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`represent itself, it is strongly advisable for a party who is not acquainted with the
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`technicalities of the procedural and substantive law involved in inter partes
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`proceedings before the Board to secure the services of an attorney who is familiar
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`with such matters. The Patent and Trademark Office cannot aid in the selection of
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`Opposition No. 91282766
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`an attorney. See TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE
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`(TBMP) § 114.02 (2021).
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`Trademark Rules 2.119(a) and (b) require that every submission filed in a
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`proceeding before the Board must be served upon the other party or parties, and
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`proper proof of such service must be made before the submission will be considered
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`by the Board. Accordingly, all submissions filed in this proceeding must be
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`accompanied by a statement, signed by the attorney or other authorized
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`representative, attached to or appearing on the original submission when filed,
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`clearly stating the date and manner in which service was made, the name of each
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`party or person upon whom service was made, and the email address or address. See
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`TBMP § 113.03. Service must be made by email unless otherwise stipulated, or unless
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`the filing party has satisfied the requirements for another method of service as set
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`forth in Trademark Rule 2.119(b). The statement will be accepted as prima facie proof
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`of service, must be signed and dated, and should take the form of a Certificate of
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`Service as follows:
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`I hereby certify that a true and complete copy of the foregoing (insert
`title of submission) has been served on (insert name of opposing
`counsel or party) by forwarding said copy on (insert date of mailing),
`via email (or insert other appropriate method of delivery) to: (set out
`name, address, and email address of opposing counsel or party).
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`Signature______________________________
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`Date___________________________________
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`Submissions in Board proceedings must be made via ESTTA, the Electronic
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`System for Trademark Trials and Appeals, and must be in compliance with
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`Opposition No. 91282766
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`Trademark Rules 2.126(a) and (b). See TBMP § 110.01. The ESTTA user manual,
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`ESTTA forms, and instructions for their use are at http://estta.uspto.gov/.
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`It is recommended that any pro se party be familiar with the latest edition of
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`Chapter 37 of the Code of Federal Regulations, which includes the Trademark Rules
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`of Practice. Parties should also be familiar with the Trademark Trial and Appeal
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`Board Manual of Procedure (TBMP), available at http://www.uspto.gov/trademarks-
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`application-process/trademark-trial-and-appeal-board-ttab, the TTABVUE system
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`for
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`viewing
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`the
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`record
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`for
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`all Board
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`proceedings,
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`available
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`at
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`http://ttabvue.uspto.gov/ttabvue/, and the Standard Protective Order, available at
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`https://www.uspto.gov/sites/default/files/documents/Standard%20Protective%20Ord
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`er_02052020.pdf.
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`Strict compliance with the Trademark Rules of Practice, and where applicable the
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`Federal Rules of Civil Procedure, is required of all parties, whether or not they are
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`represented by counsel. McDermott v. San Francisco Women’s Motorcycle Contingent,
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`81 USPQ2d 1212, n.2 (TTAB 2006); see also Hole In 1 Drinks, Inc. v. Lajtay, 2020
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`USPQ2d 10020, at *1 (TTAB 2020) (noting that compliance with the Trademark
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`Rules of Practice, and where applicable, the Federal Rules of Civil Procedure and the
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`Federal Rules of Evidence, is required of all parties even those who assume the
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`responsibility and risk of representing themselves).
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`II. RELATED PROCEEDINGS
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`The parties indicated that they are not aware of any related proceedings. In the
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`event that a civil action or separate Board proceeding between the parties is
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`Opposition No. 91282766
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`instituted, the parties are required to promptly advise the Board so that the Board
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`can determine whether suspension or consolidation is appropriate. See TBMP
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`§§ 510.02(a) and 511; see also Trademark Rule 2.117(a).
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`III. SETTLEMENT
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`Because its jurisdiction is limited to registrability determinations, unlike the
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`federal courts, the Board does not take an active role in the settlement process.
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`However, the Board typically will grant a consented or joint motion to suspend
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`proceedings for a reasonable period of time in order to allow the parties to engage in
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`settlement negotiations. See TBMP § 510.03(a); see also Trademark Rule 2.117(c).
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`The parties are reminded that stipulations to suspend the proceeding for settlement
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`negotiations should be filed promptly because, absent suspension, the Board
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`presumes the parties are preparing for trial and adhering to the disclosure, discovery,
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`and trial deadlines set by the Board. Atlanta-Fulton County Zoo Inc. v. De Palma, 45
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`USPQ2d 1858, 1859 (TTAB 1998) (“[I]t is well established that the mere existence of
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`settlement negotiations alone does not justify a party’s inaction or delay.”).
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`IV.
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` PLEADED CLAIMS AND DEFENSES
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`Applicant seeks registration of the standard character mark THIS IS MERCEDES
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`for “pants; shirts; dress shirts; athletic jackets; athletic pants; business wear, namely,
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`suits, jackets, trousers, blazers, blouses, shirts, skirts, dresses and footwear; denim
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`jackets; flannel shirts; knit jackets; leather jackets; polo shirts; riding jackets; sport
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`shirts; sports jackets; sports pants; sweat jackets; t-shirts” in International Class 25.1
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`1 Application Serial No. 97401287 was filed on May 9, 2022.
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`A. NOTICE OF OPPOSITION
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`Opposer filed a notice of opposition to registration on the grounds of likelihood of
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`confusion and dilution by blurring. Opposer pleads ownership of 39 registrations
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`comprising or consisting of the term MERCEDES-BENZ for various goods and
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`services. (1 TTABVUE 24–27, ¶ 15). Opposer also pleads prior common law use of the
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`mark MERCEDES-BENZ in connection with “motor vehicles and their parts,
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`accessories, and related goods and services, as well as a wide array of goods and
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`services including inter alia t-shirts, sweatshirts, jackets, vests, sweaters, sport
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`shirts, shirts, and caps; perfume; organization of fashion shows; and retail and
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`wholesale store services and online retail and wholesale store services featuring
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`clothing, footwear, and jewelry” (Id. at 23, ¶ 2). This is sufficient to plead Opposer’s
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`entitlement to a statutory cause of action. See Toufigh v. Persona Parfum, Inc., 95
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`USPQ2d 1872, 1874 (TTAB 2010); Giersch v. Scripps Networks, Inc., 90 USPQ2d
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`1020, 1023 (TTAB 2009).
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`Opposer has also pleaded legally sufficient claims of dilution by blurring and
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`likelihood of confusion as to its pleaded registrations and also its alleged common law
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`rights for the mark MERCEDES-BENZ in connection with “motor vehicles and their
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`parts [and] accessories,” and “t-shirts, sweatshirts, jackets, vests, sweaters, sport
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`shirts, shirts, and caps; perfume; organization of fashion shows; and retail and
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`wholesale store services and online retail and wholesale store services featuring
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`clothing, footwear, and jewelry.” See Nike, Inc. v. Palm Beach Crossfit Inc., 116
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`USPQ2d 1025, 1030 (TTAB 2015). However, Opposer has not sufficiently pleaded
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`Opposition No. 91282766
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`common law rights to any additional marks or goods/services. Failure to identify the
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`specific marks and goods/services upon which Opposer intends to rely does not
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`provide Applicant with adequate notice of Opposer’s claim of damage. Accordingly,
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`Opposer will be given leave to amend its complaint at the end of this order to
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`adequately identify its alleged common laws marks and goods/services.
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`B. ANSWER
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`Applicant submitted a legally sufficient answer that denies the salient allegations
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`in the notice of opposition and raises a number of “Affirmative Defenses.” (6
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`TTABVUE).
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`Applicant’s First Affirmative Defense provides that the notice of opposition fails
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`to state a claim upon which relief can be granted. While Fed. R. Civ. P. 12(b)(6) allows
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`a party to assert the defense in its answer, failure to state a claim is not a true
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`affirmative defense because it relates to an assertion of the insufficiency of the
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`pleading of Opposer’s claims rather than a statement of a defense to a properly
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`pleaded claim. See Hornblower & Weeks Inc. v. Hornblower & Weeks Inc., 60 USPQ2d
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`1733, 1738 n.7 (TTAB 2001). Because Opposer has sufficiently pleaded its
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`entitlement, as well as claims of likelihood of confusion and dilution by blurring,
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`Applicant’s First Affirmative Defense is stricken.
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`Applicant’s Second and Fourth Affirmative Defenses not true affirmative
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`defenses. Nevertheless, the Board construes the allegations therein as permissible
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`amplifications of Applicant’s denial of the claims in the notice of opposition, and
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`because these allegations provides fuller notice to Opposer of how Applicant intends
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`to defend this opposition, these paragraphs may remain in the answer. See, e.g., Order
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`of Sons of Italy in Am. v. Profumi Fratelli Nostra AG, 36 USPQ2d 1221, 1223 (TTAB
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`1995).
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`Applicant’s Third, Fifth, Sixth, and Twelfth Affirmative Defenses are not properly
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`pleaded affirmative defenses. To the extent Applicant intended to allege that Opposer
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`obtained one or more of its pleaded registrations by way of fraud on the USPTO, this
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`allegation would constitute an improper collateral attack on Opposer’s pleaded
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`registrations which the Board will not entertain in the absence of a timely
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`counterclaim or petition to cancel those registrations. See Trademark Rule
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`2.106(b)(3)(ii), 37 C.F.R. § 2.106(b)(3)(ii). In addition, Applicant has failed to plead
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`any specific allegations of conduct in support of the defenses that, if proven, would
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`prevent Opposer from prevailing on its claims. See Midwest Plastic Fabricators Inc.
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`v. Underwriters Labs. Inc., 5 USPQ2d 1067, 1069 (TTAB 1987). Accordingly,
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`Applicant’s Third, Fifth, Sixth, and Twelfth Affirmative Defenses are stricken.
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`Applicant’s Seventh, Ninth, and Thirteenth Affirmative Defenses provide that the
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`opposition is barred by laches or estoppel. Absent limited circumstances not alleged
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`here, the equitable defenses of laches and estoppel are generally inapplicable in
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`opposition proceedings. See Nat’l Cable Television Ass’n Inc. v. Am. Cinema Editors
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`Inc., 937 F.2d 1572, 19 UPSQ2d 1424, 1432 (Fed. Cir. 1991); Barbara’s Bakery Inc. v.
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`Landesman, 82 USPQ2d 1283, 1292 n.14 (TTAB 2007); see also TBMP § 311.02(b).
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`Moreover, a legally sufficient pleading of a defense must include enough factual detail
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`to provide fair notice of the basis for the defense. Fed. R. Civ. P. 8(b)(1); IdeasOne Inc.
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`Opposition No. 91282766
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`v. Nationwide Better Health Inc., 89 USPQ2d 1952, 1953 (TTAB 2009). Accordingly,
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`Applicant’s Seventh, Ninth, and Thirteenth Affirmative Defenses are stricken.
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`Applicant’s Eighth Affirmative Defense provides that the notice of opposition does
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`not comply with Fed. R. Civ. P. 11. As explained during the conference, Applicant has
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`not sought sanctions pursuant to Fed. R. Civ. P. 11, nor has Applicant complied with
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`the procedural requirements of Fed. R. Civ. P. 11. Accordingly, Applicant’s Eighth
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`Affirmative Defense is stricken.
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`Applicant’s Tenth Affirmative Defense provides that “Opposer has misused its
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`rights under the Lanham Act, in violation of state and federal anti-trust laws, and
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`other principles of law.” (6 TTABVEU 5). “[T]he Board’s jurisdiction is limited to
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`determining whether trademark registrations should issue or whether registrations
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`should be maintained; it does not have authority to determine whether a party has
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`engaged in criminal or civil wrongdoings.” McDermott v. S.F. Women’s Motorcycle
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`Contingent, 81 USPQ2d 1212, 1216 (TTAB 2006). Accordingly, Applicant’s Tenth
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`Affirmative Defense is stricken.
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`Applicant’s Eleventh Affirmative Defense provides that the opposition is barred
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`by waiver. Waiver is the “intentional relinquishment or abandonment of a known
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`right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464 (1938). Applicant has not
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`sufficiently alleged its waiver defense, as Applicant has not provided any factual
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`detail to provide fair notice of the basis for the defense, including an allegation that
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`Opposer intentionally relinquished its right to oppose. Accordingly, Applicant’s
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`Eleventh Affirmative Defense is stricken.
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`Finally, Applicant’s Answer contains a reservation of rights to identify additional
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`defenses at a later date. (6 TTABVUE 3, ¶ 4). Applicant may not reserve its right to
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`amend its answer to assert additional affirmative defenses. Whether or not Applicant
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`may, at some future point in this proceeding, add an affirmative defense would be
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`resolved by way of a motion to amend for Board approval pursuant to Federal Rule
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`of Civil Procedure 15. See TBMP § 311.02(c). Applicant will be given leave to amend
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`its wavier Affirmative Defense at the end of this order.2
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`V. ARRANGEMENTS FOR DISCLOSURES, DISCOVERY, AND TRIAL
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`A. INITIAL DISCLOSURES
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`The parties must serve initial disclosures. Fed. R. Civ. P. 26(a)(1) provides “a party
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`must, without awaiting a discovery request, provide to the other parties:
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`(i) the name and, if known, the address and telephone number of each individual
`likely to have discoverable information—along with the subjects of that information—
`that the disclosing party may use to support its claims or defenses, unless the use
`would be solely for impeachment;
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`(ii) a copy—or a description by category and location—of all documents,
`electronically stored information, and tangible things that the disclosing party has in
`its possession, custody, or control and may use to support its claims or defenses,
`unless the use would be solely for impeachment ...”
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`Initial disclosures should be supplemented promptly to avoid surprise at trial and to
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`allow discovery to be taken from prospective witnesses. 3
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`2 For the avoidance of doubt, Applicant is not being given leave to amend those affirmative
`defenses stricken as unavailable in this proceeding.
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`3 The parties should not file their initial disclosures, discovery requests, or discovery
`responses with the Board, except as permitted under Trademark Rule 2.120(k)(8); in
`connection with a motion to compel discovery, as required by Trademark Rule 2.120(f)(1); or
`in connection with a motion to determine the sufficiency of an answer or objection to a request
`for admission, as required by Trademark Rule 2.120(i)(1).
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`Opposition No. 91282766
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`A. DISCOVERY
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`With respect to discovery, the scope of the pleadings determines the scope of
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`discovery. See Fed. R. Civ. P. 26(b) (1) (“Parties may obtain discovery regarding any
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`nonprivileged matter that is relevant to any party’s claim or defense…”). The parties
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`were advised to consult the “Discovery Guidelines” listed in the TBMP § 414 before
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`making or objecting to discovery requests. The Board expects parties to cooperate
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`with one another in the discovery process. See TBMP § 408.01. The parties each have
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`a duty not only to make a good faith effort to satisfy the legitimate discovery needs of
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`their adversary, but also to make a good faith effort to seek only such discovery as is
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`proper and relevant to the issues in the case. See TBMP § 408.01.
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`The parties are limited to seventy-five interrogatories, including subparts;
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`seventy-five requests for production of documents and things, including subparts; and
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`seventy-five requests for admission. See Trademark Rules 2.120(d), 2.120(e), and
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`2.120(i). Interrogatories, requests for production, and requests for admission must be
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`served early enough in the discovery period, as originally set or as may have been
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`reset by the Board, so that responses will be due no later than the close of the
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`discovery period. Trademark Rule 2.120(a)(3). Similarly, discovery depositions must
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`be properly noticed and taken during the discovery period. Id.
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`If either party plans to file a motion to compel discovery or a motion to test the
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`sufficiency of a response or objection to a request for admission, the moving party
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`must first confer with the other party in good faith to attempt to resolve or narrow
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`the dispute, and then must demonstrate its good-faith efforts as part of its motion.
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`See Trademark Rules 2.120(f)(1) and 2.120(i); see also TBMP § 523.02. The obligation
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`to meet and confer in good faith is a mutual obligation. Motions to compel discovery,
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`motions to test the sufficiency of responses or objections to a request for admission,
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`and motions for summary judgment must be filed no later than the day before the
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`deadline for pretrial disclosures for the first testimony period as originally set or as
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`reset. Trademark Rules 2.120(f)(1), 2.120(i)(1), and 2.127(e)(1).
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`To the extent either party plans to use an expert witness, such party must make
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`their expert witness disclosure by the set deadline, and provide the Board with
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`notification that the party will be employing an expert. Trademark Rule
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`2.120(a)(2)(iii). The Board may suspend proceedings to allow the parties to take
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`discovery of a designated expert witness or to allow a rebuttal expert witness.
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`B. PRETIAL AND TRIAL PROCEDURE
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`Pretrial disclosures are governed by Trademark Rule 2.121(e) and Fed. R. Civ. P.
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`26(a)(3) with one exception: the Board does not require pretrial disclosure of each
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`document or other exhibit that a party plans to introduce at trial as required by Fed.
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`R. Civ. P. 26(a)(3)(A)(iii). Additionally, if a party does not plan to take testimony from
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`any witness in any form, it must state so in its pretrial disclosures. A party need not
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`disclose, prior to its testimony period, any notices of reliance it intends to file during
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`its testimony period. Trademark Rule 2.121(e). For further information regarding
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`pretrial disclosures, the parties should consult TBMP § 702.01.
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`In addition to submission of evidence under notices of reliance, parties may
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`introduce evidence in the form of testimony depositions taken by a party during its
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`assigned testimony period, or in the form of affidavit or declaration testimony
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`submitted during its testimony period, subject to the right of the adverse party to
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`conduct cross-examination.4 See TBMP § 703.01 and authorities cited therein. The
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`submission of evidence and testimony during the parties’ assigned testimony periods
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`corresponds to the trial in court proceedings. A party may take trial testimony only
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`during its assigned testimony period, except by stipulation of the parties approved by
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`the Board, or, on motion, by order of the Board. See Fossil Inc. v. Fossil Grp., 49
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`USPQ2d 1451, 1454 n.1 (TTAB 1998); Of Counsel Inc. v. Strictly of Counsel
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`Chartered, 21 USPQ2d 1555, 1556 n.2 (TTAB 1991). If witness testimony is presented
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`in the form of an affidavit or declaration, the adverse party may elect to take oral
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`cross-examination of that witness as provided under Trademark Rule 2.123(c).5
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`C. STANDARD PROTECTIVE ORDER
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`The Board’s Standard Protective Order is automatically imposed in this
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`proceeding pursuant to Trademark Rule 2.116(g), unless the parties, by stipulation
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`approved by the Board, agree to an alternative order, or a motion by a party to use
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`an alternative order is granted by the Board. See TBMP §§ 412.01–.02. Although they
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`are not required to do so, the parties may elect to exchange executed copies of the
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`order. Because of the automatic imposition of the protective order, parties may
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`4 For information concerning submission of evidence by notice of reliance, see TBMP § 704.
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`5 If an affiant or declarant witness is not within the jurisdiction of the United States, then
`the adverse party may elect to take and bear the expense of cross-examination of the witness
`by written questions. See Trademark Rules 2.123(a)(1) and 2.124.
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`Opposition No. 91282766
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`designate information or documents as confidential but typically cannot withhold
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`properly discoverable information or documents on that basis. See TBMP § 412.01.
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`D. ACCELERATED CASE RESOLUTION
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`During the conference, the Board informed the parties of its Accelerated Case
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`Resolution (ACR) process. ACR is an alternative to typical Board inter partes
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`proceedings. See Chanel Inc. v. Makarczyk, 110 USPQ2d 2013, 2016–17 (TTAB 2013);
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`Chanel Inc. v. Makarczyk, 106 USPQ2d 1774, 1775 (TTAB 2013); see also Bond v.
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`Taylor, 119 USPQ2d 1049, 1051 (TTAB 2016); Swiss Grill Ltd. v. Wolf Steel Ltd., 115
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`USPQ2d 2001, 2002 (TTAB 2015).
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`The form of ACR can vary, but the process often approximates a summary bench
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`trial, or cross-motions for summary judgment and accompanying evidentiary
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`submissions, that the parties agree to submit in lieu of creating a traditional trial
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`record and post-trial briefing. If the parties stipulate to ACR they could avoid a formal
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`trial altogether. Although the Board may not decide disputed issues of material fact
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`when considering a motion for summary judgment, the parties may stipulate to the
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`submission of such briefs and evidence in lieu of trial and agree that the Board may
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`resolve and decide any genuine dispute of material fact that may be found to exist.
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`As an alternative to the “traditional” ACR process discussed above, the parties
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`also may explore stipulating to facts, evidence, and/or procedures at trial. See, e.g.,
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`Target Brands, Inc. v. Hughes, 85 USPQ2d 1676, 1678 (TTAB 2007). The Board
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`allows the parties to stipulate to a variety of deviations from the Board’s rules in
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`order to streamline discovery and testimony. If the parties adopt ACR early in the
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`Opposition No. 91282766
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`proceeding, they could realize a significant savings in time and cost. More information
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`about the Board’s ACR options can be found in TBMP §§ 528.05(a)(2), 702.04, and
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`705, and on the Board’s website. Moreover, examples of Board proceedings where the
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`parties adopted some form of ACR include:6
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`- Opposition No. 91220225 – 20, 21 TTABVUE;
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`- Opposition No. 91222612 – 14 TTABVUE;
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`- Cancellation No. 92063116 – 18, 22 TTABVUE; and
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`- Cancellation No. 92069781 – 9, 10 TTABVUE.
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`If the parties wish to revisit the issue of ACR after reviewing this order, they may
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`call the assigned Interlocutory Attorney to schedule a teleconference regarding ACR.
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`VI. PROCEEDING SCHEDULE
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`Trial dates remain as set and copied below.
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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 Due
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`4/21/2023
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`8/19/2023
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`9/18/2023
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`11/2/2023
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`Plaintiff’s 30-day Trial Period Ends
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`12/17/2023
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`Defendant’s Pretrial Disclosures Due
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`1/1/2024
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`Defendant’s 30-day Trial Period Ends
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`2/15/2024
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`Plaintiff’s Rebuttal Disclosures Due
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`3/1/2024
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`Plaintiff’s 15-day Rebuttal Period Ends
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`3/31/2024
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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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`5/30/2024
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`6/29/2024
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`7/14/2024
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`Request for Oral Hearing (optional) Due
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`7/24/2024
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`6 This information is purely informational and meant to assist the parties, as needed, in
`considering the adoption of ACR.
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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). Such briefs should
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`utilize citations to the TTABVUE record created during trial, to facilitate the Board’s
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`review of the evidence at final hearing. Oral argument at final hearing will be
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`scheduled only upon the timely submission of a separate notice as allowed by
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`Trademark Rule 2.129(a).
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`15
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