UNITED STATES PATENT AND TRADEMARK OFFICE
`Trademark Trial and Appeal Board
`P.O. Box 1451
`Alexandria, VA 22313-1451
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`Mailed: June 20, 2012
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`Concurrent Use No. 94002242
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`Southwestern Management, Inc.
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`v.
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`Ocinomled, Ltd.
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`v.
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`Emeril’s Food of Love
`Productions, LLC
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`Ann Linnehan, Interlocutory Attorney:
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`The Board, in a January 19, 2012 order, granted
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`Emeril’s Food of Love Productions, LLC’s (“Emeril’s) motion
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`to strike Southwestern Management Inc.’s (“Southwestern”)
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`First Notice of Reliance filed on July 8, 2011 [Entry No.
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`137 in TTABVUE] in its entirety because the notice was
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`untimely filed. Such Notice of Reliance designates a
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`reliance on additional portions of the transcripts of and
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`exhibits to several discovery depositions of the parties’
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`officers and employees and were filed by Southwestern
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`pursuant to Trademark Rule 2.120(j)(4).
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`This case now comes up for consideration of
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`Southwestern’s motion for reconsideration of the Board's
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`Trademark Trial and Appeal Board
`P.O. Box 1451
`Alexandria, VA 22313-1451
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`Mailed: June 20, 2012
`
`Concurrent Use No. 94002242
`
`Southwestern Management, Inc.
`
`
`
`
`
`v.
`
`Ocinomled, Ltd.
`
`
`
`
`
`v.
`
`Emeril’s Food of Love
`Productions, LLC
`
`
`
`
`
`
`
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`
`
`
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`
`
`
`Ann Linnehan, Interlocutory Attorney:
`
`The Board, in a January 19, 2012 order, granted
`
`
`
`Emeril’s Food of Love Productions, LLC’s (“Emeril’s) motion
`
`to strike Southwestern Management Inc.’s (“Southwestern”)
`
`First Notice of Reliance filed on July 8, 2011 [Entry No.
`
`137 in TTABVUE] in its entirety because the notice was
`
`untimely filed. Such Notice of Reliance designates a
`
`reliance on additional portions of the transcripts of and
`
`exhibits to several discovery depositions of the parties’
`
`officers and employees and were filed by Southwestern
`
`pursuant to Trademark Rule 2.120(j)(4).
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`This case now comes up for consideration of
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`Southwestern’s motion for reconsideration of the Board's
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`Concurrent Use No. 94002242
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`January 19, 2012 order or, alternatively, to reopen
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`Southwestern’s rebuttal trial period for a single day.
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`Turning first to Southwestern’s request for
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`reconsideration, under Trademark Rule 2.127(b), a party may
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`point out any error the Board may have made in considering a
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`matter initially.
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`Southwestern argues that the Board erred in finding
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`that the notice of reliance it filed pursuant to Trademark
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`Rule 2.120(j)(4) should have been filed during its assigned
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`rebuttal testimony period in order to be considered timely.
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`The Board is not persuaded by the arguments set forth in
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`Southwestern's motion. Trademark Rule 2.121(a)(1) reads, in
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`relevant part, as follows:
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`The Trademark Trial and Appeal Board will issue
`a trial order setting a deadline for each party’s
`required pretrial disclosures and assigning to each
`party its time for taking testimony. No testimony
`shall be taken except during the times assigned,
`unless by stipulation of the parties approved by the
`Board, or upon motion granted by the Board, or by
`order of the Board….
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`Trademark Rule 2.120(j)(3) provides that the notice of
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`reliance and deposition testimony made of record pursuant to
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`such notice of reliance “under the provisions of
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`subparagraph (j) of this section” should be filed during the
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`testimony period of the party that files the notice of
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`reliance. Despite Southwestern’s contentions, Trademark
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`Rule 2.120(j)(4) does not create a different timing period
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`2
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`Concurrent Use No. 94002242
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`for the filing of cross-designated deposition testimony.
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`The timing requirement set forth in Trademark Rule
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`2.120(j)(3) sets forth the timing provision and is clearly
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`within the provisions set forth in Trademark Rule
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`2.121(a)(1).
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`In view thereof, the motion for reconsideration is
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`denied.
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`The Board turns next to Southwestern’s motion to reopen
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`its rebuttal testimony period for a single day “for the
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`purpose of receiving its notice of reliance.”
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`For the Board to grant Southwestern’s motion to reopen,
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`Southwestern must show that its failure to act in a timely
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`manner was the result of excusable neglect. See Fed. R.
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`Civ. P. 6(b); TBMP Section 509.01(b) (3d ed. 2011). In
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`Pioneer Investment Services Co. v. Brunswick Associates
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`L.P., 507 U.S. 380 (1993), as discussed by the Board in
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`Pumpkin, Ltd. v. The Seed Corps, 43 USPQ2d 1582 (TTAB 1997),
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`the Supreme Court clarified the meaning and scope of
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`"excusable neglect," as used in the Federal Rules of Civil
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`Procedure and elsewhere. The Court held that the
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`determination of whether a party's neglect is excusable is:
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`at bottom an equitable one, taking account of
`all relevant circumstances surrounding the
`party's omission. These include. . . [1] the
`danger of prejudice to the [nonmovant], [2] the
`length of the delay and its potential impact on
`judicial proceedings, [3] the reason for the
`delay, including whether it was within the
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`3
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`Concurrent Use No. 94002242
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`reasonable control of the movant, and [4]
`whether the movant acted in good faith.
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`Pioneer Investment Services Co. v. Brunswick Associates
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`L.P., 507 U.S. at 395.
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`In subsequent applications of this test, several courts
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`have stated that the third Pioneer factor, namely the reason
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`for the delay and whether it was within the reasonable
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`control of the movant, might be considered the most
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`important factor in a particular case. See Pumpkin, Ltd. v.
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`The Seed Corps, 43 USPQ2d at 1586, fn.7 and cases cited
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`therein.
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`In this case, Southwestern’s stated reason for failing
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`to act during the time allowed is not well taken. Its
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`counsel’s misreading or misinterpretation of the relevant
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`rule and its alleged reliance on the absence of any timing
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`requirement in Trademark Rule 2.120(j)(4) does not justify
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`its failure take testimony during the allotted time. See,
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`e.g., Baron Philippe de Rothschild S.A. v. Styl-Rite Optical
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`Mfg. Co., 55 USPQ2d 1848, 1851 (TTAB 2000) (counsel’s
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`docketing errors and midreading of relevant rule are
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`circumstances wholly within counsel’s control); Atlanta-
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`Fulton County Zoo Inc. v. De Palma, 45 USPQ2d 1858 (TTAB
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`1998) (failure to timely move to extend testimony period due
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`to counsel’s oversight did not justify party’s inaction or
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`delay).
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`4
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`Concurrent Use No. 94002242
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`With regard to the first Pioneer factor, the Board
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`finds that there is no evidence of prejudice to the other
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`parties aside from a brief delay.
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`With regard to the second Pioneer factor, the Board
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`notes that Southwestern filed its motion to reopen well
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`after the close of its rebuttal testimony period and only
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`after the Board granted the motion to strike.
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`With regard to the fourth Pioneer factor, the Board
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`finds that there is no evidence of bad faith on the part of
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`Southwestern.
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`Based on the foregoing, the Board finds, on balance,
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`that Southwestern has not made the requisite showing of
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`excusable neglect.
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`In view thereof, Southwestern’s motion to reopen
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`discovery is denied.
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`This case will be forwarded to the Director for
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`consideration of the pending petition. Proceedings remain
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`suspended.
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`5
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`6
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`Concurrent Use No. 94002242
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