ESTTA Tracking number: ESTTA1461167
`Filing date: 09/05/2025
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`Proceeding no.
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`91299843
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`Party
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`Defendant
`FlexShops Management, LLC
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`Correspondence W. MICHAEL BLACK
`address 9 EXCHANGE PLACE, SUITE 600
`SALT LAKE CITY, UT 84111
`UNITED STATES
`Primary email: mblack@mbmlawyers.com
`Secondary email(s): tbloomfield@mbmlawyers.com, rnytch@mbmlawyers.com
`801-998-8888
`Submission Motion for Relief from entry of Default Judgment
`Filer's name W. Michael Black
`Filer's email mblack@mbmlawyers.com
`Signature /W. Michael Black/
`Date 09/05/2025
`Attachments Motion to Set Aside Notice of Default 8.27.25.pdf(113902 bytes )
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`The Trademark Trial and Appeal Board
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`EBAY INC,,
`Opposition No.: 91299843
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`Opposer,
`V. Trademark: WORKBAY
`FlexShops Management, LLC,
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`Applicant. Serial No.: 98545034
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`MOTION TO SET ASIDE NOTICE OF DEFAULT
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`COMES NOW the Applicant, FlexShops Management, LLC (hereinafter “Applicant”), and
`submits this Motion to Set Aside Notice of Default pursuant to Trademark Trial and Appeal
`Board Manual of Procedure (“TBMP”’) §312.02 and with good cause shown respectfully requests
`that the Board set aside the Notice of Default and accept the Answer and Grounds of Defense in
`this matter. In support thereof Applicant states as follows:
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`STATEMENT OF THE CASE
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`1. On or about June 20, 2025, Opposer eBay Inc. (“Opposer”) instituted the instant
`proceeding against the registration Applicant’s trademark Serial No. 98545034.
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`2. Applicant’s deadline to file its Answer and Grounds of Defense was July 30,
`2025.
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`3. Applicant inadvertently failed to timely file a Motion for an Extension requesting
`an extension or an Answer and Grounds of Defense.
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`4. The Board subsequently issued the Notice of Default at issue herein on August
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`10, 2025.
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`RESPONSE
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`In the event that a defendant fails to timely file an answer to a complaint, and a notice of
`default is issued, if the defendant can provide good cause why default judgment should not be
`entered, the “Board will set aside the notice of default.” TBMP § 312.02 q 1. Good cause why
`default judgment should not be entered against a defendant, for failure to file a timely answer, is
`usually found when the defendant shows that “(1) the delay in filing was not the result of willful
`conduct or gross neglect on the part of the defendant, (2) the plaintiff will not be substantially
`prejudiced by the delay, and (3) the defendant has a meritorious defense to the action.” Id. at 9 2.
`The Board holds the sound discretion to determine whether “default judgment should be entered
`against a party.” Id. at § 3. In exercising its discretion, “Board must be mindful of the fact that it
`is the policy of the law to decide cases on their merits” and as a result the Board is “very
`reluctant to enter a default judgment for failure to file a timely answer and tends to resolve any
`doubt on the matter in favor of the defendant.” Id.
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`In this case Applicant and Opposer had been in the process of ongoing settlement
`discussions and the Applicant and Applicant’s counsel inadvertently lost track of the deadline to
`file a response or a motion for an extension and was not aware that the deadline had passed until
`the default notice was received. As such, Applicant submits that good cause be established in this
`case as to why the notice of default should be set aside on the basis of Applicant’s and
`Applicant’s inadvertent lapse in not having responded in a timely manner and the settlement
`discussions that have been ongoing between Applicant and Opposer dating back to April 8, 2025.
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`It is therefore respectfully submitted that the oversight was not a result of willful conduct
`or gross neglect on the part of the Applicant, but rather a calendaring error. Moreover, it is
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`further submitted that Opposer will not be prejudiced whatsoever by the instant setting aside of
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`the notice of default as the short delay of less than thirty (30) days is not sufficient to warrant a
`finding of prejudice in this case. Additionally, while not the same situation, Applicant had
`previously agreed to a sixty (60) day extension of Opposer’s Opposition, in addition to the 90-
`day Request for Extension of Time and Opposer would not be prejudiced by the short delay in
`response by Applicant. See 9 2 of Opposer’s Notice of Opposition.
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`In regard to a meritorious defense, Applicant is filing its Answer and Grounds of Defense
`as of the date of this Motion setting forth its defenses in the instant matter which it moves the
`Board to accept as late given the good cause shown herein.
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`WHEREFORE, for good cause, Applicant respectfully requests that the Board grant this
`Motion and accepts the filed Answer and Grounds of Defense in this matter.
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`Respectfully submitted this 5th day of September 2025.
`/s/ W_Michael Black
`W. Michael Black
`Tucker Bloomfield
`MITCHELL BARLOW & MANSFIELD PC
`9 Exchange Place
`Suite 600
`Salt Lake City, UT 84111
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`Phone: 801-998-8888
`Fax: 801-998-8077
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`mblack@mbmlawyers.com
`tbloomfield@mbmlawyers.com
`rnytch@mbmlawyers.com
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`Attorneys for Applicant
`FlexShops Management, LLC
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`CERTIFICATE OF SERVICE
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`I hereby certify that on the 5th day of September 2025 a true and complete copy of the
`foregoing MOTION TO SET ASIDE NOTICE OF DEFAULT was served on the following
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`via email:
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`Amanda Marston
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`Hope Hamilton
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`M. Ginger Eastman
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`HoLLaND & HART LLP P.O. Box 8749
`Denver, Colorado 80201 Phone: (303) 473-
`2735 Fax: (303) 957-2248
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`anmarston@hollandhart.com
`hihamilton@hollandhart.com
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`mgeastman@hollandhart.com
`docket@hollandhart.com
`ebay@hollandhart.com
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`/s/ Tucker B. Bloomfield
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