`
`
`
`ajl/ky
`
`
`
`
`
`
`
`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
`
`November 5, 2024
`
`Cancellation No. 92082275
`
`adidas AG and adidas International
`Marketing BV
`
`v.
`
`Sandeep Sandhu
`
`
`
`By the Trademark Trial and Appeal Board:
`
`Pursuant to the schedule last set by the Board, Respondent’s answer was due on
`
`July 16, 2024. 18 TTABVUE 4. Respondent failed to file a timely answer, causing the
`
`Board to issue a notice of default. 19 TTABVUE. On August 27, 2024, Respondent
`
`filed a response to the Board’s July 27, 2024 notice of default,1 along with a proposed
`
`answer.2 20, 21 TTABVUE. On September 23, 2024, Respondent filed a proposed
`
`amended answer. 22 TTABVUE.
`
`
`1 Respondent’s response to the notice of default is single-spaced. As Respondent was advised
`in the Board’s June 11, 2024 order setting aside its prior notice of default, Trademark Rule
`2.126(a)(1) requires that all electronic submissions made to the Trademark Trial and Appeal
`Board via ESTTA be double-spaced. The Board, in exercising it discretion, accepts
`Respondent’s August 27, 2024 response. The Board may refuse to consider filings that do not
`meet the requirements of Trademark Rule 2.126(a)(1) or any other applicable rule.
`
` 2
`
` Inasmuch as Respondent filed its answer on the same day as its response to the Board’s
`notice of default, and in view of the Board’s order herein, Respondent’s request for an
`extension to file its answer, 20 TTABVUE 3, is denied consideration as moot.
`
`
`
`

`

`Cancellation No. 92082275
`
`
`As an initial matter, Respondent’s response to the Board’s July 27, 2024 notice of
`
`default was due on August 26, 2024. Accordingly, Respondent’s response is one day
`
`late. In view of the potentially dispositive nature of default, the Board exercises its
`
`discretion to consider Respondent’s late response to the Board’s July 27, 2024 notice
`
`of default.
`
`Default may be set aside “for good cause shown.” Fed. R. Civ. P. 55(c). Good cause
`
`is established when it is shown that: (1) the late filing was not the result of willful
`
`conduct or gross neglect; (2) acceptance of the late answer would not prejudice the
`
`plaintiff; and (3) the defendant has a meritorious defense to the action. Fred Hayman
`
`Beverly Hills Inc. v. Jacques Bernier Inc., 21 USPQ2d 1556, 1557 (TTAB 1991). The
`
`determination of whether default judgment should be entered against a party lies
`
`within the sound discretion of the Board. See, e.g., Identicon Corp. v. Williams, 195
`
`USPQ 447, 449 (Comm’r 1977). Because the Board is mindful of the law’s preference
`
`for deciding cases on their merits, it is generally reluctant to enter a default judgment
`
`for failure to file a timely answer, and tends to resolve doubt on the matter in favor
`
`of the defendant. Paolo’s Assocs. L.P. v. Bodo, 21 USPQ2d 1899, 1902 (Comm’r 1990);
`
`see also Delorme Publ’g Co., Inc. v. Eartha’s, Inc., 60 USPQ2d 1222, 1223 (TTAB
`
`2000).
`
`Respondent states that its failure to timely file an answer was an “oversight . . .
`
`not due to negligence.” 20 TTABVUE 2. Respondent further asserts that its failure to
`
`timely file an answer was not due to “disregard for the legal process of this
`
`administrative body.” Id. In addition, Respondent states that its failure to timely file
`
`
`
`2
`
`

`

`Cancellation No. 92082275
`
`
`an answer stemmed from the “active negotiations between the [Respondent] and the
`
`Petitioner aimed at resolving the cancellation proceeding amicably.” Id. Although
`
`Respondent’s failure to answer, before the Board for the second time, may be
`
`negligent, the Board’s determination concerning Respondent’s intent under the “good
`
`cause” standard requires only that the late filing was not the result of willful conduct
`
`or gross neglect. Fred Hayman Beverly Hills, 21 USPQ2d at 1557. In view of the
`
`parties’ “active negotiations” designed to avoid the need for an answer, the Board
`
`does, however, determine that the failure to timely file an answer was not the result
`
`of willful conduct or gross neglect.
`
`In addition, there is no evidence of prejudice to Petitioner on the record. See
`
`Regatta Sport Ltd. v. Telux-Pioneer Inc., 20 USPQ2d 1154, 1156 (TTAB 1991) (delay
`
`alone is not a sufficient basis for establishing prejudice). Respondent, by way of its
`
`proposed answer, sets forth a meritorious defense to the allegations.3
`
`In view thereof, the Board’s July 27, 2024 notice of default is set aside, and
`
`Respondent’s answer is accepted.
`
`Respondent is cautioned that 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. McDermott v. San Francisco
`
`Women’s Motorcycle Contingent, 81 USPQ2d 1212, n.2 (TTAB 2006), aff’d unpub’d,
`
`240 Fed. Appx.865 (Fed. Cir. 2007), cert. denied, 552 U.S. 1109 (2008).
`
`
`3 The showing of a meritorious defense does not require an evaluation of the merits of the
`case. All that is required is a plausible response to the allegations in the complaint. See
`DeLorme Publishing Co. v. Eartha’s Inc., 60 USPQ2d 1222, 1224 (TTAB 2000).
`
`
`
`
`3
`
`

`

`Cancellation No. 92082275
`
`
`Respondent’s proposed amended answer (22 TTABVUE), filed while proceedings
`
`have been suspended pending disposition of the notice of default, and consequently
`
`deemed served within 21 days after Respondent’s answer, was filed as a matter of
`
`course. See Fed. R. Civ. P. 15(a)(1)(A). In view thereof, Respondent’s amended answer
`
`is accepted as Respondent’s operative pleading.4
`
`Proceedings are resumed, and dates are reset as follows:
`
`Time to file Second Amended Answer, if any 11/15/2024
`12/15/2024
`Deadline for Discovery Conference
`12/15/2024
`Discovery Opens
`1/14/2025
`Initial Disclosures Due
`5/14/2025
`Expert Disclosures Due
`6/13/2025
`Discovery Closes
`7/28/2025
`Plaintiff's Pretrial Disclosures Due
`9/11/2025
`Plaintiff's 30-day Trial Period Ends
`9/26/2025
`Defendant's Pretrial Disclosures Due
`11/10/2025
`Defendant's 30-day Trial Period Ends
`11/25/2025
`Plaintiff's Rebuttal Disclosures Due
`12/25/2025
`Plaintiff's 15-day Rebuttal Period Ends
`2/23/2026
`Plaintiff's Opening Brief Due
`3/25/2026
`Defendant's Brief Due
`4/9/2026
`Plaintiff's Reply Brief Due
`4/19/2026
`Request for Oral Hearing (optional) Due
`
`Generally, the Federal Rules of Evidence apply to Board trials. Trial testimony is
`
`taken and introduced out of the presence of the Board during the assigned testimony
`
`periods. The parties may stipulate to a wide variety of matters, and many
`
`
`4 Respondent’s answer asserted a “first defense” and “first” through “fifth” “affirmative
`defenses.” 21 TTABVUE 5-6. Respondent’s amended answer does not plead separate
`paragraphs asserting any separate “defenses” or “affirmative defenses.” It is unclear whether
`Respondent intended to omit its “defenses” or “affirmative defenses” when filing its amended
`answer. In view thereof, Respondent is allowed until November 15, 2024 in which to file a
`second amended answer pleading the “defenses” and/or “affirmative defenses” pleaded in its
`answer, failing which the pleading thereof in Respondent’s answer will be given no further
`consideration and Respondent’s amended answer will remain Respondent’s operative
`pleading.
`
`
`
`4
`
`

`

`Cancellation No. 92082275
`
`
`requirements relevant to the trial phase of Board proceedings are set forth in
`
`Trademark Rules 2.121 through 2.125. These include pretrial disclosures, the
`
`manner and timing of taking testimony, matters in evidence, and the procedures for
`
`submitting and serving testimony and other evidence, including affidavits,
`
`declarations, deposition transcripts and stipulated evidence. Trial briefs shall be
`
`submitted in accordance with Trademark Rules 2.128(a) and (b). Oral argument at
`
`final hearing will be scheduled only upon the timely submission of a separate notice
`
`as allowed by Trademark Rule 2.129(a).
`
`TIPS FOR FILING EVIDENCE, TESTIMONY, OR LARGE DOCUMENTS
`
`The Board requires each submission to meet the following criteria before it will be
`
`considered: 1) pages must be legible and easily read on a computer screen; 2) page
`
`orientation should be determined by its ease of viewing relevant text or evidence, for
`
`example, there should be no sideways or upside-down pages; 3) pages must appear in
`
`their proper order; 4) depositions and exhibits must be clearly labeled and numbered
`
`– use separator pages between exhibits and clearly label each exhibit using sequential
`
`letters or numbers; and 5) the entire submission should be text-searchable.
`
`Additionally, submissions must be compliant with Trademark Rules 2.119 and 2.126.
`
`Submissions failing to meet all of the criteria above may require re-filing. Note:
`
`Parties are strongly encouraged to check the entire document before filing.5 The
`
`Board will not extend or reset proceeding schedule dates or other deadlines to allow
`
`
`5 To facilitate accuracy, ESTTA provides thumbnails to view each page before submitting.
`
`
`
`5
`
`

`

`Cancellation No. 92082275
`
`
`time to re-file documents. For more tips and helpful filing information, please visit
`
`the ESTTA help webpage.
`
`
`
`6
`
`