TTAB
`
`i UNITED STATES PATENT AND TRADEMARK OFFICE
`1 Trademark Trial and Appeal Board
`A
`P.O. Box 1451
`'
`1 Alexandria, VA 22313-1451
`A
`i General Contact Number: 571-272-8500
`
`Mailed: December 31, 2015
`
`Cancellation No. 92062884 »--
`Registration No. 4 1222 1 7
`
`3 5%
`
`BOOM ENERGY DRINK LLC
`
`A 623 STONEHAVEN DRIVE
`HAINES CITY" FL 33844 UNITED STATES
`
`Rockstar, Inc.
`
`V.
`
`BOOM Energy Drink LLC
`
`IAN K BOYD
`
`HARVEY SISKIND LLP
`
`4 EMBARCADERO CENTER
`
`39TH FLOOR
`SAN FRANCISCO CA 941 11 UNITED STATES
`
`Lalita'Greene, Paralegal Specialist:
`
`The petitioner (plaintiff) identified above has filed a petition for cancellation of the
`ab0ve—identified registration owned by respondent (defendant). A service copy of
`the petition for cancellation was forwarded to respondent by the petitioner. An
`electronic version of the "petition for cancellation, and of the entire proceeding, is
`viewable
`on
`the
`Board’s
`web
`page
`via
`the
`TTABVUE
`link:
`http://ttabvue.uspto.govlttabvuel .
`
`RESPONDENT MUST FILE AND SERVE ANSWER
`As required in the schedule set forth below, respondent must file an answer
`within forty (40) days from the mailing date of this order.
`(For guidance
`regarding when a deadline falls on a Saturday, Sunday or federal holiday, see
`Trademark Rule 2.196.) Respondent’s answer must comply with Fed. R. Civ. P.
`8(b), must contain admissions or denials of the allegations in the petition for
`cancellation, and may include available defenses and counterclaims. For guidance
`regarding the form and content of an answer, see Trademark Rule 2.114(b), and
`
`lllllll||l||llll|||||||||l|||||||||||H|1|||l|l||||||ll|||||
`01-14-2016
`U S F’atE'1t8 TMO'c«‘TM1v‘a1\RtptDt #11
`
`

`
`Cancellation No: 92062884
`
`, TBMP §§ 311.01 and 311.02. Failure to file a timely answer may result in entry of
`default judgment and the cancellation of the registration.
`
`V
`SERVICE OF ANSWER AND OF ALL FILINGS
`The answer, and all other filings in this proceeding, must be served in a manner
`specified in Trademark Rule 2.119(b), and must include proof of service. For
`guidance regarding the service and signing of all filings, see TBMP §§ 113-113.04,
`As noted in TBMP § 113.03, proof of service should be in the following certificate of
`service form:
`
`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
`mailing said copy on (insert date of mailing), via First Class Mail, postage
`prepaid (or insert other appropriate method of delivery) to: (set out name and
`address of opposing counsel or party).
`
`Signature
`Date
`
`The parties may agree to forward service copies by electronic transmission, e.g., e-
`mail. See Trademark Rule 2.119(b)(6) and TBMP §113.04. Pursuant to Trademark
`Rule 2.119(c), however, five additional days are afforded only to actions taken in
`response to papers served by first—class mail,‘ "Express Mail," or overnight courier,
`not by electronic transmission.
`
`LEGAL RESOURCES AVAILABLE AT VVEB PAGE
`Proceedings will be conducted in accordance with the Trademark Rules of Practice,
`set forth in Title 37, part 2, of the Code of Federal Regulations. These rules, as well
`as amendments thereto,
`the Manual of Procedure (TBMP),
`information on
`Accelerated Case Resolution (ACR) and Alternative Dispute Resolution (ADR), and
`many Frequently Asked Questions, are available on the Board’s web page, at:
`http_:_/[www.uspto.gov/trademarkslprocess/apggal/index.j§_p.
`For
`a
`general
`description of Board proceedings, see TBMP §102.03.
`
`FILING PAPERS ONLINE
`The link to the Board’s electronic filing system, ESTTA (Electronic System for
`Trademark Trials and Appeals), is at the Boards Web page, at:
`.
`.
`http://estta.uspto.gov/. The Board strongly encourages parties to use ESTTA
`for all filings. ESTTA provides various electronic filing forms; some may be used as
`is, and others may require attachments. For technical difficulties with ESTTA,
`parties may call 571-272-8500. Due to potential technical issues, parties should not
`wait until the last date of a deadline for filing papers. The Board may decline to
`
`consider any untimely filing.
`
`

`
`Cancellation No: 92062884
`
`_PETITIONER’S OBLIGATION IF SERVICE IS INEFFECTIVE
`If a service copy of thepetition for cancellation is ,1 returned to petitioner as
`undeliverable. or petitioner otherwise becomes aware that. service has been
`' ineffective, petitioner must notify the Board in writing within ten (10) days of
`receipt of the returned copy. Notification to the Board may be provided by any .
`means available for filing papers with the Board, but preferably should be provided
`by written notice filed through ESTTA. For guidance regarding notice of
`ineffective service, see Trademark Rule 2.111(b) and TBMP § 309.02(c)(2).
`
`While petitioner is under no obligation to search for current correspondence address
`information for, or investigate the whereabouts of, any respondent petitioner is
`unable to serve,
`if petitioner knows of any new address information for the
`respondent, petitioner must report the address to the Board. If a petitioner notifies
`the Board that a service copy sent to a respondent was returned or not delivered,
`including any case in which the notification includes a new address for the
`respondent discovered by or reported to petitioner, the Board will give notice under
`Trademark Rule 2.118.
`
`FORMAT FOR ALL FILINGS
`Trademark Rule 2.126 sets forth the required form and format for all filings. The
`Board may decline to consider, any filing that does not comply with this rule,
`including, but not limited to motions,_ briefs, exhibits and deposition transcripts.
`
`CONFERENCE, DISCOVERY, DISCLOSURE AND TRIAL SCHEDULE
`
`_
`Time to Answer
`Deadline for Discovery Conference
`Discovery Opens
`Initial Disclosures Due
`Expert Disclosures Due
`Discovery Closes
`Plaintiffs Pretrial Disclosures
`Plaintiffs 30-day Trial Period Ends
`Defendant's Pretrial Disclosures
`Defendant's 30-day Trial Period Ends
`Plaintiffs Rebuttal Disclosures
`Plaintiffs 15-day Rebuttal Period Ends
`
`V
`
`2/9/2016
`3/10/20 16
`3/10/20 16
`4/9/2016
`A 8/7/2016
`9/6/2016
`10/2 1/20 16
`12/5/2016
`12/20/2016
`2/3/2017
`2/18/2017
`3/20/2017
`
`_
`
`7
`
`7
`
`_
`
`PARTIES ARE REQUIRED TO HOLD DISCOVERY CONFERENCE
`As noted in the schedule above,
`the parties are required to schedule and to
`participate with each other in a discovery conference by the deadline in the
`
`__3_
`
`

`
`Cancellation No-. 92062884
`
`schedule. For guidance, see Fed. R. Civ. P. 26(i), Trademark Rule 2.120(a)(2), and
`TBMP § 401.01. In the conference, the parties are required to discuss (1) the nature
`of -and basis for their respective claims and defenses, (2) the possibility of settling or
`at
`least narrowing the scope of claims or defenses, and (3) arrangements for
`disclosures, discovery and introduction of evidence at .trial, if the parties are unable
`to settle at this time.
`
`Discussion of amendments of otherwise prescribed procedures can include
`limitations on disclosures and/or discovery, willingness to stipulate to facts, and
`Willingness to stipulate to more efficient options for introducing at trial information
`or materials obtained through disclosures or discovery.
`1
`
`The parties must hold the conference in person, by telephone, or by any means on
`which they agree. A'Board interlocutory attorney or administrative trademark
`judge will participate in the conference, upon request of any party, provided that
`such request is made no later than ten (10) days prior to the conference deadline.
`See Trademark Rule 2.].20(a)(2). A request for Board participation must be made
`either through an ESTTA filing, or by telephone call to the assigned interlocutory
`attorney whose name is on the TTABVUE record for this proceeding. A party
`should request Board participation only after the parties have agreed on possible
`dates and times for the conference. A conference with the participation of a Board
`attorney will be by telephone, and the parties shall place the call at the agreed date
`and time, in the absence of other arrangements made with the Board attorney.
`'
`
`PROTECTIVE ORDER FOR CONFIDENTIAL INFORMATION
`_The Board's Standard Protective Order
`is "applicable, and is available at:
`http://www.uspto.gov/trademarks/plrocess/appeal/guidelines/stndagmnt.jsp.
`.During
`their conference, the parties should discuss whether they agree to supplement or
`amend the standard order, or substitute a protective agreement of their choosing,
`subject to approval by the Board. See Trademark Rule 2.116(g) and TBMP § 412.
`The standard order does not automatically protect a party's confidential information
`and its provisions for the designation of confidential information must be utilized as
`needed by the parties.
`
`ACCELERATED CASE RESOLUTION
`During their conference,
`the parties should discuss whether they wish to seek
`mediation or arbitration, and whether they can stipulate to follow the Board's
`Accelerated Case Resolution (ACR) process for a more efficient and economical
`means of obtaining the Board’s determination of the proceeding. For guidance
`regarding ACR, see TBMP § 528. Detailed information. on ACR, and examples of
`ACR cases
`and suggestions,
`are
`available at
`the Board's webpage,
`at:
`http ://WWW.uspto.gov/trademarks/process/appeal/index.jsp.
`
`DISCOVERY AND INTERLOCUTORY PROCEDURES
`
`

`
`Cancellation Nd. 92062884
`
`For guidance regarding discovery, see Trademark Rule 2.120 and TBMP Chapter
`400, regarding the deadline for and contents of initial disclosures, see Trademark
`Rule 2.120(a)(2) and TBMP § 401.02, and regarding the discoverability of _various
`matters, see TBMP§ 414. Certain provisions of Fed. R. Civ. P. 26 are applicable in ‘
`modified form. The interlocutory attorney has discretion to require the parties, or
`to grant a request made by one or both parties, to resolve matters of concern to the
`Board, or a contested motion, by telephone conference.
`See Trademark Rule
`2.120(i)(1) and TBMP § 502-06(a).
`
`TRIAL
`
`.
`
`For guidance regarding trial and testimony procedures, see Trademark Rules 2.121,
`2.123 and 2.125, as well as TBMP Chapter 700.
`The parties should review
`authorities regarding the introduction of evidence during the trial phase, including
`by notice of reliance and by taking testimony from witnesses.
`‘For instance, any
`notice of reliance must be filed during the filing party's assigned testimony period,
`with a copy served on all other parties, and any testimony of a witness must be both
`noticed and taken during the party's testimony period. A party that has taken
`testimony must serve on each adverse party a copy of the transcript of such
`testimony, together with copies of any exhibits introduced during the testimony,
`within thirty (30) da.ys after completion of the testimony deposition.
`
`Briefs shall be filed in accordance with Trademark Rules 2.128(a) and (b). An oral
`hearing is not required, but will be scheduled upon request of any party, pursuant
`to Trademark Rule 2.129. For guidance regarding briefing and an oral hearing, see
`TBMP §§ 801-802.
`'
`
`PARTIES NOT REPRESENTED BY COUNSEL
`This proceeding is similar to a civil action in a federal district court. The Board
`strongly advises all parties to secure the services of an attorney who is familiar
`with trademark law and Boar{l;pi>oceclui‘e. Strict compliance with the Trademark‘
`Rules of Practice and, where applicable, the Federal Rules of Civil Procedure, is
`required of all parties, whether or not they are represented by counsel. A Parties not
`represented by such an attorney are directed to read the Frequently Asked
`Questions,
`available
`at
`the
`Board’s
`web
`page:
`http ://www.uspto.gov/trademarks/process/appeal/index.1’sp.
`
`PARTIES MUST NOTIFY BOARD OF OTHER PENDING ACTIONS
`
`If the parties are, or during the pendency of this proceeding become, parties in
`another Board proceeding or a civil action involving the same or related marks, or
`involving any issues of law or fact which are also in this proceeding, they shall
`notify the Board immediately, so the Board can consider whether consolidation
`and/or suspension of proceedings is appropriate. See TBMP § 511.
`
`

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