`
`Commissioner for Trademarks
`P.O. Box 1451
`Alexandria, VA 22313-1451
`www.uspto.gov
`
`Audemars Piquet Holding S.A.
`
`v.
`
`Haas Outdoors, Inc.
`
`
`Opposition Nos. 91242213 and 91242238
`Application Serial Nos. 87821623 and 87821622
`On Petition to the Director
`Filed: July 7, 2021
`
`
`Decision
`
`
`On July 7, 2021, Audemars Piquet Holding S.A. “Opposer’) petitioned the Director
`of the United States Patent and Trademark Office (‘Director’) to reverse the
`Trademark Trial and Appeal Board’s (“Board”) June 30, 2021 interlocutory order
`denying Opposer’s motion for reconsideration of the Board’s February 9, 2021 order
`(Denial of Reconsideration”). The underlying February 9, 2021 order struck
`Opposer’s motions
`to compel and granted Applicant Haas Outdoors,
`Inc.’s
`(“Applicant”) motion for sanctions (“Sanctions Order”). The Director has authority to
`review the Petition under 37 C.F.R. §§ 2.146(a)(3) and (e)(2). The petition is denied.!
`
`FACTS?2
`
`These consolidated cases are contentious and, not coincidentally, almost three and
`one-half years old, largely due to continuous, unnecessary and apparently tactical
`discovery disputes instigated by Opposer and related motion practice focused on
`scheduling and procedure. The result has been not only delay, but also acrimony and
`
`
`1 Authority to decide any trademark petitions to the Director under 37 C.F.R. § 2.146 was
`delegated to the Commissioner for Trademarks. Subsequently, authority to decide petitions
`to the Director under 37 C.F.R. §§ 2.146(e)(2), involving review of Boardinterlocutory orders,
`andreview of requests to waive the Trademark Rules of Practice relating to Board cases, was
`delegated to the Chief Administrative Trademark Judge.
`
`2 This decision recites only the facts relevant to the petition.
`
`

`

`Opposition Nos. 91242213 and 91242238, Application Serial Nos. 87821623 and 87821622
`
`undue burden on the Board reminiscent of other cases in which Opposer engaged in
`similar conduct and maneuverings.
`
`These cases made little progress in their first year, due in large part to a numberof
`disputes and motions, leading to the Board’s July 14, 2019 order. That order granted
`Applicant’s motion to compel after Opposer had improperly raised boilerplate, general
`objections (which it later withdrew) and attempted to produce responsive documents
`in a manner which would burden and impose a high cost on Applicant. Opposer was
`also found to have “failed to state unequivocally whether responsive, non-privileged
`documents exist,” and to have responded to Applicant’s discovery in a manner which
`“suggests that Opposer has not actually searched for responsive documents.” Thus,
`the Board pointed out that if Applicant had attempted to inspect and copy responsive
`documents in the manner Opposer proposed, it could have been an expensive “wild
`goose chase.” Ultimately, Opposer was ordered to produce documents responsive to
`certain requests by photocopying and forwarding them to Applicant. The Board also
`found Opposer’s privilege log “vague and uninformative,” and otherwise improper,
`and ordered Opposer to amend the log. The order concluded as follows: “In the event
`that Opposerfails to serve full responses to Applicant’s particular document requests
`as ordered herein, Applicant's remedy may lie in a motion for sanctions, as
`appropriate.”
`
`On December 26, 2019, the Board denied Opposer’s motion to reconsider the July 14,
`2019 order, and granted in part Opposer’s simultaneously-filed motion to compel. In
`denying reconsideration, the Board pointed out that Opposer’s motion in large part
`merely reargued Opposer’s response to Applicant’s motion to compel, and that
`Opposer improperly used the motion to introduce new evidence. It also pointed out
`that Opposer, contrary to law and the July 14, 2019 order, “maintained its position
`that it is permissible to not unequivocally state whether any responsive documents
`actually exist.” Finally, Applicant was ordered to supplement someof its discovery
`responses.
`
`Opposer next moved to compel Applicant to comply with the Board’s July 14, 2019
`order and for sanctions for Applicant’s alleged noncompliance. On June 27, 2020 the
`Board found that “Opposer is [now] requesting more that (sic) it asked for in the
`interrogatory and more than the Board ordered,” while at the same time Applicant
`failed to provide some of the information it was ordered to provide (although this was
`a “minor issue”). Ultimately, the Board ordered Applicant to provide some additional
`information and otherwise denied Opposer’s motion.
`
`Opposer quickly moved, again, to compel Applicant to provide additional information,
`in response to which Applicant cross-moved to not only strike the motion to compel,
`but also for a protective order, which the Board construed as a motion for sanctions.
`The Board’s Sanctions Order found Applicant’s construed cross-motion for sanctions
`
`-2-
`
`

`

`Opposition Nos. 91242213 and 91242238, Application Serial Nos. 87821623 and 87821622
`
`“germane” to Opposer’s motion, because it related to the discovery requests at issue
`in Opposer’s motion, and thus considered both motions.
`
`On the merits, the 31 page Sanctions Order began by pointing out that: (1) “pursuing
`discovery when involved in a Board proceeding does not give a party or its counsel
`license to mak[e] excessive demands, harass and bully the adverse party or tax the
`Board’s resources;” and (2) “the scope of discovery in Board proceedings is generally
`narrower than in court proceedings.” The Sanctions Order next laid out in exhaustive
`detail Opposer’s “willful pattern of harassment of Applicant during discovery, which
`has consumed unnecessarily Applicant’s resources and negatively impacted those of
`the Board.” Opposer’s conduct is summarized in chart form, in a manner which
`highlights “the inexorable and bad faith conduct of Opposer’s counsel,” and illustrates
`how Opposer’s actions stalled and then essentially ended this case’s progression to
`trial. Among other
`things: Opposer’s
`correspondence with Applicant was
`“duplicative,” “piecemeal” and “unclear”: Opposer failed to cooperate by requesting
`information “not proportional” to the needs of this relatively simple case; Opposer
`rehashed demands Applicant had previously addressed; Opposer did not sufficiently
`respect Applicant’s pandemic-related concerns and “badgered” Applicant; and
`Opposer filed an unnecessary second motion to compel. The Sanctions Order
`ultimately concluded that Opposer “has failed to comply with its obligation to
`cooperate during discovery.” Moreover, the Sanctions Order pointed out that Opposer
`has engagedin similar conduct in other Board proceedings.?
`
`The Board therefore granted Applicant’s construed motion for sanctions. As a result,
`Opposer was found to have “waived any further objections to Applicant's responses to
`Opposer’s discovery.” Furthermore, Applicant’s discovery responses were found to be
`sufficient, Opposer was prohibited from serving any additional discovery or discovery-
`related motions and the discovery period was closed. The Sanctions Order also found
`“that Applicant has substantially complied with Opposer’s discovery requests,” and
`denied Opposer’s motion to compel.
`
`Finally, in its Denial of Reconsideration of the Sanctions Order, the Board found that
`Opposer was merely and impermissibly rearguing points made in its motion to compel
`and response to the construed motion for sanctions. Furthermore, Opposer failed to
`establish that there was any error in the Sanctions Order.
`
`In its Petition to the Director, Opposer seeks review of both the Sanctions Order and
`the Denial of Reconsideration. It argues that its motion to compel should have been
`granted on the merits, and that Applicant’s construed cross-motion for sanctions
`should have been denied on procedural and substantive grounds.
`
`3 See e.g, March 5, 2020 and July 14, 2021 orders in Opposition No. 91245118.
`
`-3-
`
`

`

`Opposition Nos. 91242213 and 91242238, Application Serial Nos. 87821623 and 87821622
`
`DISCUSSION
`
`Standard of Review
`
`Parties to Board proceedings may petition the Director to review an interlocutory
`Board order on a procedural matter. TTAB MANUAL OF PROCEDURE (TBMP)
`§§ 901.02(a), 905 (2021); TMEP § 1704 (2021). Here, Opposer invokes the Director’s
`supervisory authority under Trademark Rule 2.146(a)(8). The Director will reverse
`an interlocutory Board order only upon a showingofclear error or abuseof discretion.
`Kimberly Clark Corp. v. Paper Converting Ind., Inc., 21 USPQ2d 1875, 1877 (Comm’r
`Pats. 1991); Paolo’s Associates Lid, P’ship v. Bodo, 21 USPQ2d 1899, 1902 (Comm’r
`Pats. 1991); Jonergin Co. Inc. v. Jonergin Vermont Inc., 222 USPQ 337 (CommrPats.
`1983); Riko Enterprises, Inc. v. Lindsley, 198 USPQ 480 (CommPats. 1977).
`
`The Petition is Untimely With Respect to the Sanctions Order
`
`“A petition from an interlocutory order of the [Board] must be filed by not later than
`thirty days after the issue date of the order from which relief is requested.”
`Trademark Rule 2.146(e)(2). Thus, in order to obtain review of the Sanctions Order,
`Opposer was required tofile its petition by March 11, 2021. Petitioner did not do so
`until almost four months later, however. The petition is accordingly denied to the
`extent it seeks review of the Sanctions Order.
`
`There Was No Clear Error or Abuse of Discretion in the Denial of
`Reconsideration
`
`is that, based on the
`“[T]he premise underlying a motion for ... reconsideration ...
`facts before it and the prevailing authorities, the Board erred in reaching the order
`or decision it issued. Such a motion maynot be used to introduce additional evidence,
`nor should it be devoted simply to a reargumentof the points presented in a brief on
`the original motion. Rather, the motion should be limited to a demonstration that
`based on the facts before it and the applicable law, the Board’s ruling is in error and
`requires appropriate change.” TBMP §518. See also Guess? IP Holder L.P.
`v.
`Knowluxe LLC, 116 USPQ2d 2018, 2019 (TTAB 2015).
`
`Here, Opposer’s motion for reconsideration of the Sanctions Order consisted primarily
`of reargument and failed to establish that the Sanctions Order was in error.
`Therefore, as explained below, Opposer’s petition is denied.
`
`* Although the Petition is untimely with respect to the Sanctions Order, the Sanctions Order
`is the subject of the request for reconsideration, and therefore has been considered and
`discussed in deciding the Petition.
`
`-4.
`
`

`

`Opposition Nos. 91242213 and 91242238, Application Serial Nos. 87821623 and 87821622
`
`Opposer first argues that its motion to compel should have been granted. It claims
`that Applicant “has itself confirmed that it has documents responsive” to Production
`Requests 34, 36, 87 and 41, and that Applicant “has provided inconsistent and
`contradictory responses
`regarding its
`licensees AVT Leather
`and MMT
`Group/Southern Design.” It also claims that Applicant failed to produce its documents
`as kept in the ordinary course of business, and therefore Applicant should be
`compelled to produce an “index/correspondence table.” This is mere reargument of
`points made in Opposer’s August 11, 2020 motion to compel, and thus not a basis for
`reconsidering the Sanctions Order. In any event, as found in the Sanctions Order
`“Applicant had respondedfully to Opposer’s document request Nos. 34, 36, 37 and 41,
`and to the inquiry regarding AVT Leather,” and “the record indicates that in addition
`to producing two tables earlier in the proceedings ... Applicant also served the
`documents at issue as they are kept in the usual course of business.” As stated in the
`Sanctions Order: “Merely because Opposer did not obtain the specific documents it
`wanted does not mean that Applicant has not been responsive. In fact,
`in this
`instance, the Board finds that Applicant has substantially complied with Opposer’s
`discovery requests.”
`
`Opposer next asserts that the Board should not have considered Applicant’s
`construed motion for sanctions because Applicant failed to meet and confer before
`filing it, and because it was filed while the proceedings were suspended and is not
`germane to Opposer’s motion to compel. However, as pointed out in the Denial of
`Reconsideration, the Board construed Applicant’s motion as one for sanctions, for
`which a “certification of good faith is not required,” and in any event Opposerfailed
`to raise the meet and confer issue when it responded to Applicant’s motion. As also
`pointed out in the Denial of Reconsideration, Opposer’s allegation that Applicant’s
`motion violated the suspension order and was not germane to Opposer’s motion is
`merely rearguing points Opposer madeinits original response to Applicant’s motion.
`In any event, as the Board held in the Sanctions Order, Applicant’s construed motion
`for sanctions “relates to Opposer’s conduct related to its discovery requests that are
`the subject of the motion to compel,” and is therefore germane to Opposer’s motion.
`
`Finally, Opposer argues that Applicant’s motion should have been denied on the
`merits. While this section of the petition is long, it is not new; rather, it merely
`rehashes manyof the arguments Opposer has madeover the years. These arguments
`were properly rejected and sanctions were properly granted, as explained herein, in
`the Sanctions Order, the Denial of Reconsideration and several of the earlier orders
`in this case.
`
`

`

`Opposition Nos. 91242213 and 91242238, Application Serial Nos. 87821623 and 87821622
`
`DECISION
`
`The petition is denied. Trial dates will be reset by the interlocutory attorney.
`
`/Gerard F. Rogers/
`Chief Administrative Trademark Judge
`Trademark Trial and Appeal Board
`
`Date: 1/11/2021
`
`MBA/GFR
`
`Attorney for Opposer:
`
`John A. Galbreath
`Galbreath Law Offices PC
`2516 Chestnut Woods Ct.
`Reisterstown, MD 21136
`
`Attorney for Applicant:
`
`W. Whitaker Rayner
`Jones Walker LLP
`190 East Capitol Street, Suite 800
`Jackson, MS 39201
`
`-6-
`
`