502.04 Determination of Motions
37 CFR § 2.127(a) ... When a party fails to file a brief in response to a motion, the Board may treat the motion as conceded. ...
37 CFR § 2.127(c) Interlocutory motions, requests, and other matters not actually or potentially dispositive of a proceeding may be acted upon by a single Administrative Trademark Judge of the Trademark Trial and Appeal Board or by an Interlocutory Attorney of the Board to whom authority so to act has been delegated.
Motions fall into three categories: consented, uncontested, and contested. If the nonmoving party has consented to a motion, the motion may be filed either as a stipulation with the signature of both parties, or as a consented motion in which the moving party states that the nonmoving party has given its oral consent thereto (unless written consent is required under the provisions of 37 CFR § 2.106(c), 37 CFR § 2.114(c), 37 CFR § 2.134(a), or 37 CFR § 2.135 ). Ordinarily, the Board will grant a consented motion.
If the nonmoving party has not given its consent to a motion, but does not file a brief in opposition thereto during the time allowed therefor, the Board, in its discretion, may grant the motion as conceded. [ Note 1.] However, the Board, in its discretion, may also decline to treat an uncontested motion as conceded, and may grant or deny the motion on its merits. [ Note 2.]
A motion that does not expressly state that the nonmoving party has consented to the motion will not be granted as conceded until after passage of sufficient time for filing and receipt by the Board of a brief in response. If a motion is contested by the nonmoving party by filing an opposition brief or presenting a responsive argument in a telephone conference, the Board will decide the motion on its merits.
Interlocutory motions that are not actually or potentially dispositive of a proceeding may be acted upon by a single Board judge, or by a single attorney to whom such authority has been delegated. [ Note 3.] See TBMP § 102.03 (General Description of Board Proceedings). A panel of at least three Board judges determines contested motions that are actually or potentially dispositive of a proceeding. See TBMP § 102.03 (General Description of Board Proceedings). Stipulations or consented (or uncontested) motions to dispose of the proceeding in a certain manner may be determined under the authority of the Board.
For information concerning the remedies available to a party that is dissatisfied with a decision on a motion, see TBMP § 518 (Motion for Reconsideration of Decision on Motion). See also TBMP § 905 (Petition to the Director).
A party should not presume that the Board will automatically reset discovery, disclosure deadlines and/or trial dates when it determines a pending motion. When the Board determines a pending motion, and there is no motion to extend discovery, disclosure deadlines and/or trial dates, the Board, in the exercise of its discretion, may or may not reset relevant dates. A party that wishes to have particular deadlines or periods reset upon the determination of a particular motion should file a motion requesting such action, and specifying the deadlines or periods it wishes to have reset. [ Note 4.] Alternatively, a moving or responding party may request the resetting of deadlines or periods in its pending motion or response thereto, where such pending motion is not otherwise one seeking an enlargement of time. In other words, a party may incorporate a motion to extend as part of another motion.
NOTES:
1. 37 CFR § 2.127(a); Chesebrough-Pond’s Inc. v. Faberge, Inc., 618 F.2d 776, 205 USPQ 888, 891 (CCPA 1980) (treating motion for summary judgment as conceded was proper); Melwani v. Allegiance Corp., 97 USPQ2d 1537, 1541 n.16 (TTAB 2010) (Board will generally treat unopposed motion as conceded); Central Manufacturing Inc. v. Third Millennium Technology, Inc., 61 USPQ2d 1210, 1211 (TTAB 2001) (motion to dismiss treated as conceded); Boston Chicken Inc. v. Boston Pizza International Inc., 53 USPQ2d 1053, 1054 (TTAB 1999).
2. See, e.g., Boyds Collection Ltd. v. Herrington & Co., 65 USPQ2d 2017, 2018 (TTAB 2003) (motion to suspend for civil action not treated as conceded where potentially dispositive motion was pending when motion to suspend was filed); International Finance Corp. v. Bravo Co., 64 USPQ2d 1597, 1599 (TTAB 2002) (motion to retroactively suspend proceeding and deny applicant’s motion for summary judgment decided on merits); Baron Philippe de Rothschild S.A. v. Styl-Rite Optical Manufacturing Co., 55 USPQ2d 1848, 1854 (TTAB 2000) (cross-motion for judgment not treated as conceded in view of its potentially dispositive nature); Hartwell Co. v. Shane, 17 USPQ2d 1569 (TTAB 1990) (uncontested motion to dismiss decided on merits). Cf. Western Worldwide Enterprises Group Inc. v. Qinqdao Brewery, 17 USPQ2d 1137, 1139 n.6 (TTAB 1990) (even if the Board not considered plaintiff’s late responsive brief, defendant’s motion would not have been treated as conceded under the circumstances).