544    Motion For Relief From Final Judgment

Fed. R. Civ. P. 60(b) Grounds for Relief from a Final Judgment, Order, or Proceeding.

On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:

  • (1) mistake, inadvertence, surprise, or excusable neglect;
  • (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
  • (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
  • (4) the judgment is void;
  • (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
  • (6) any other reason that justifies relief.

Fed. R. Civ. P. 60(c)(1) Timing. A motion under Rule 60(b) must be made within a reasonable time — and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding.

Fed. R. Civ. P. 6(b)(2) Extending Time; Exceptions A court must not extend the time to act under Rules 50(b) and (d), 52(b), 59(b), (d),and (e), and60(b).

Motions to set aside or vacate a final judgment rendered by the Board are governed by Fed. R. Civ. P. 60(b). [ Note 1.] Thus, upon such terms as are just, the Board, on motion, may relieve a party from a final judgment for one of the reasons specified in Fed. R. Civ. P. 60(b).

Fed. R. Civ. P. 60(b), as made applicable by 37 CFR § 2.116(a), applies to all final judgments issued by the Board, including default and consent judgments, grants of summary judgments, and judgments entered after trial on the merits. As a practical matter, motions to vacate or set aside a final Board judgment are usually based upon the reasons set forth in subsections (1), (2) and/or (6) of Fed. R. Civ. P. 60(b).

For examples of cases involving a motion for a relief from a final judgment of the Board, see cases cited in the note below. [ Note 2.]

A motion for relief from judgment must be made within a reasonable time; and if the motion is based on reasons (1), (2), and/or (3), it must be filed not more than one year after the judgment was entered – the time will not be extended. [ Note 3.] The filing of the motion will not affect the finality of the judgment or suspend its operation. [ Note 4.]

Relief from a final judgment is an extraordinary remedy to be granted only in exceptional circumstances. [ Note 5.] The determination of whether a motion under Fed. R. Civ. P. 60(b) should be granted is a matter that lies within the sound discretion of the Board. [ Note 6.]

Where a motion for relief from judgment is made without the consent of the adverse party or parties, it must persuasively show (preferably by affidavits, declarations, documentary evidence, etc., as may be appropriate) that the relief requested is warranted for one or more of the reasons specified in Fed. R. Civ. P. 60(b).

Because default judgments for failure to timely answer the complaint are not favored by the law, a motion under Fed. R. Civ. P. 55(c) and Fed. R. Civ. P. 60(b) seeking relief from such a judgment is generally treated with more liberality by the Board than are motions under Fed. R. Civ. P. 60(b) for relief from other types of judgments. [ Note 7.] See TBMP § 312.03. Among the factors to be considered in determining a motion to vacate a default judgment for failure to answer the complaint are (1) whether the plaintiff will be prejudiced, (2) whether the default was willful, and (3) whether the defendant has a meritorious defense to the action.[ Note 8.] See TBMP § 312.03.

If, in a cancellation proceeding, a petition to the Director is filed concurrently with a Fed. R. Civ. P. 60(b) motion to the Board for relief from judgment, and the petition and motion seek the same relief and require review of the same set of facts, the Board will rule first upon the motion for relief from judgment. [ Note 9.] If the Board grants the motion, the Director, as a ministerial act, will reinstate the subject registration. [ Note 10.]

Where the parties are agreed that the circumstances warrant the vacating or setting aside of a final judgment, a stipulation or consented motion for relief from the judgment should be filed. The Board ordinarily will grant a consented request for relief from judgment.

Occasionally, a party files a Fed. R. Civ. P. 60(b) motion contemporaneously with, or during the pendency of an appeal. The Board has jurisdiction to entertain the motion. If the Board determines that the motion is to be denied, it will enter the order denying the motion. Any appeal of the denial may be consolidated with the appeal of the underlying order. If the Board is inclined to grant the Fed. R. Civ. P. 60(b) motion, it will issue a short memorandum so stating. The movant can then request a limited remand from the appellate court for that purpose. [ Note 11.]

NOTES:

 1.   See 37 CFR § 2.116(a).

 2.   See Rolex Watch USA Inc. v. AFP Imaging Corp., 107 USPQ2d 1626 (TTAB 2013) (after remand, granting relief from judgment, under United States Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18 (1994); Pramil S.R.L. v. Michael Farah, 93 USPQ2d 1093, 1095 (TTAB 2009) (Fed. R. Civ. P. 60(b)(2) motion denied because registration not yet in existence at time of Board’s decision not "newly discovered evidence;" motion not brought within reasonable time; and evidence relied upon merely cumulative or not of a type that would change the result); Kraft Foods, Inc. v. Desnoes & Geddes Ltd., 64 USPQ2d 1154 (TTAB 2002) (motion for relief from judgment under Fed. R. Civ. P. 60(b)(4), Fed. R. Civ. P. 60(b)(5) and Fed. R. Civ. P. 60(b)(6) denied); CTRL Systems Inc. v. Ultraphonics of North America Inc., 52 USPQ2d 1300, 1302 (TTAB 1999) (Fed. R. Civ. P. 60(b)(1) motion denied; counsel and client share duty "to remain diligent in prosecuting or defending the client’s case") (overrulingGeneral Motors Corp. v. Cadillac Club Fashions Inc., 22 USPQ2d 1933 (TTAB 1992); S. Industries Inc. v. Lamb-Weston Inc., 45 USPQ2d 1293, 1296 (TTAB 1997) (Fed. R. Civ. P. 60(b)(1) motion granted; petitioner contributed to respondent’s delay and confusion); Jack Lenor Larsen Inc. v. Chas. O. Larson Co., 44 USPQ2d 1950, 1952-54 (TTAB 1997) (Fed. R. Civ. P. 60(b)(4) and Fed. R. Civ. P. 60(b)(6) motion, based on alleged failure to receive correspondence from Board, denied, given presumption of receipt of correspondence, passage of 12 years, and resulting hardship to third parties); Consorzio del Prosciutto di Parma v. Parma Sausage Products Inc., 23 USPQ2d 1894, 1896 (TTAB 1992) (Fed. R. Civ. P. 60(b)(6) motion granted; petition withdrawn based on apparent acceptance by examining attorney of settlement agreement obviating basis for refusal of petitioner’s applications); Djeredjian v. Kashi Co., 21 USPQ2d 1613, 1615 (TTAB 1991) (Fed. R. Civ. P. 60(b)(1) motion granted; respondent’s failure to answer resulted from mistake due to involvement in numerous Board proceedings); Regatta Sport Ltd. v. Telux-Pioneer Inc., 20 USPQ2d 1154 (TTAB 1991) (Fed. R. Civ. P. 60(b)(1) motion granted; respondent’s employees had limited knowledge of English and were unaware cancellation and opposition were separate proceedings).Cf. In re Sotheby’s Inc., 18 USPQ2d 1969 (Comm’r 1989) (denying petition to file a late response to Office action withholding decision on §§ 8 & 15 declaration where declarant was not registrant of record despite argument that attorney never so informed registrant).

 3.   See Fed. R. Civ. P. 60(b); Fed. R. Civ. P. 6(b)(2); Pramil S.R.L. v. Michael Farah, 93 USPQ2d 1093, 1094-96 (TTAB 2009) (Fed. R. Civ. P. 60(b)(2) motion based on registration that issued after cancellation was ordered was denied because the evidence was not new, because motion was not filed until 6 months after new registration issued); Djeredjian v. Kashi Co., 21 USPQ2d 1613, 1615 (TTAB 1991) (Fed. R. Civ. P. 60(b)(1) based on excusable neglect was timely when filed only 15 days after entry of default judgment); Bass Anglers Sportsman Society of America, Inc. v. Bass Pro Lures, Inc., 200 USPQ 819, 822 (TTAB 1978) (Fed. R. Civ. P. 60(b)) motion denied as untimely where judgment was entered under 37 CFR § 2.135 and applicant was mistaken as to consent to abandonment by opposer but delayed over a year to file motion).

 4.   See Fed. R. Civ. P. 60(c).

 5.   See Djeredjian v. Kashi Co., 21 USPQ2d 1613, 1615 (TTAB 1991).

 6.   See Djeredjian v. Kashi Co., 21 USPQ2d 1613, 1615 (TTAB 1991).

 7.   See Information Sys. and Networks Corp. v. United States, 994 F.2d 792, 795 (Fed. Cir. 1993) ("Rule 60(b) is applied most liberally to judgments in default.") (quoting Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 403 (5th Cir. 1981)).

 8.   See Djeredjian v. Kashi Co., 21 USPQ2d 1613, 1615 (TTAB 1991) (Fed. R. Civ. P. 60(b)(1) motion granted pending showing of meritorious defense where other two elements were established); and Regatta Sport Ltd. v. Telux-Pioneer Inc., 20 USPQ2d 1154, 1155-56 (TTAB 1991) (Fed. R. Civ. P. 60(b)(1) motion granted; excusable neglect shown where respondent’s employees had limited knowledge of English and were unaware opposition and cancellation were separate proceedings, potential defense was meritorious, and no substantial prejudice to opposing party). Compare Jack Lenor Larsen Inc. v. Chas. O. Larson Co., 44 USPQ2d 1950, 1952-54 (TTAB 1997) (Fed. R. Civ. P. 60(b)(6) motion denied as untimely when filed 12 years after cancellation; (Fed. R. Civ. P. 60(b)(4) motion denied because judgment was not void).

 9.   See National Telefilm Associates, Inc. v. Craig Denney Productions, 228 USPQ 61, 61-62 (Comm’r 1985).

 10.   See National Telefilm Associates, Inc. v. Craig Denney Productions, 228 USPQ 61, 62 (Comm’r 1985).

 11.   See Home Products International v. U.S., 633 F.3d 1369, 1378 n.9 (Fed. Cir. 2011); Pramil S.R.L. v. Farah, 93 USPQ2d 1093, 1095 (TTAB 2009).