Trademark Trial and Appeal Board
Patent and Trademark Office (P.T.O.)
*1 MICHAEL J. WAHL
VINCENT A. FUSCO AND KAREN FUSCO
Cancellation No. 22,929
April 23, 1996
R. L. Simms, R. F. Cissel and E. W. Hanak
Administrative Trademark Judges
This case now comes up on petitioner's second motion for default judgment in view of respondents' complete failure to comply with the Board's August 22, 1995 order compelling discovery.
As background for this matter, on April 24, 1995, the Board issued an order granting petitioner's motion to compel responses, without objection, to its first set of interrogatories and document requests. When respondents failed to comply with the Board's order, petitioner filed a motion for sanctions in the nature of default judgment. The Board denied the motion for sanctions in order issued August 22, 1995 and allowed respondents another opportunity to provide their long-overdue responses. At the same time, however, the Board warned respondents that further attempts to frustrate petitioner's right to obtain discovery would not be tolerated. The Board cautioned respondents that their failure to comply fully and completely with the order would result in the entry of default judgment against them.
On September 12, 1995, the day after their discovery responses were due, respondents filed a "response" to the Board's order (which respondents have characterized as the "do or die letter" issued by the Board). Respondents maintain, in this communication, that the Board has perceived them as being "disobedient" because of their failure to retain an attorney. Respondents then proceed to argue the merits of their case, as they have done in previous responses to Board orders.
Although respondents did not file a response to the motion for default judgment, we will construe their September 12 communication as a response thereto.
In a situation where there has been continuing avoidance of discovery, the Board will enter a default judgment against the disobedient party. See Unicut Corporation v. Unicut, Inc., 220 USPQ 1013 (TTAB 1983). In this case, nearly a year and a half has elapsed since petitioner's discovery requests were originally served on respondents. Respondents have been ordered in two separate rulings to respond to those requests. Despite the Board's orders, however, respondents have refused to provide a single response, during this entire period, to any discovery request. Instead, respondents have persisted in their course of nonresponsive conduct, deliberately ignoring the Board's warnings and instructions, and choosing instead to continue to argue the merits of their case [FN1] and the perceived injustice of their obligations under the rules.
The motion for default judgment is accordingly granted, and default judgment is hereby entered against respondents. The petition to cancel is granted, and Registration No. 1,771,592 will be cancelled in due course.
R. L. Simms
R. F. Cissel
E. W. Hanak
Administrative Trademark Judges, Trademark Trial and Appeal Board
FN1. Regarding respondents' inquiry as to why the Board does not "request petitioner [prove] that he has not abandoned the use of his mark," should this case have proceeded to trial, and in order for petitioner to have succedded on the merits, petitioner would have had to prove, among other things, the prior and continuous use of his pleaded mark.