801.02(a)    Plaintiff’s Main Brief

The main brief of the party in the position of plaintiff is due not later than 60 days after the date set for the close of the rebuttal testimony period. [ Note 1.]

If a party in the position of plaintiff fails to file a main brief, the Board may issue an order allowing plaintiff until a set time, not less than 15 days, in which to show cause why its failure to file a main brief should not be treated as a concession of the case. If the plaintiff fails to file a response to the order, or files a response indicating that it has lost interest in the case, judgment may be entered against the plaintiff. [ Note 2.] The purpose of this order to show cause procedure is to save the Board the burden of determining a case on the merits where the parties have settled, but have neglected to notify the Board, or where the plaintiff has lost interest in the case. It is the policy of the Board not to enter judgment against a plaintiff, for failure to file a main brief on the case, where the plaintiff, in its response to the show cause order, indicates that it has not lost interest in the case. However, even if the Board discharges the show cause order because the plaintiff files a response indicating that it has not lost interest in the case, if the plaintiff does not have any evidence of record, and does not file a motion to reopen its testimony period and make a sufficient showing of excusable neglect to support such reopening, the Board still may enter judgment against plaintiff for failure to take testimony or submit any other evidence. [ Note 3.]

For further information concerning the 37 C.F.R. § 2.128(a)(3)  order to show cause procedure, see TBMP § 536. For information on reopening time, see TBMP § 509.

NOTES:

 1.   37 C.F.R. § 2.128(a)(1).

 2.   37 C.F.R. § 2.128(a)(3). See CTRL Systems Inc. v. Ultraphonics of North America Inc., 52 USPQ2d 1300, 1302 (TTAB 1999) (opposer’s failure to respond to order to show cause under 37 C.F.R. § 2.128  resulted in entry of judgment).

 3.   37 C.F.R. § 2.128(a)(3). MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES, 81 Fed. Reg. 69950, 69952 (October 7, 2016) ("This final rule codifies case law and Board practice under which the Board may sua sponte grant judgment for the defendant when the plaintiff has not submitted evidence, even where the plaintiff has responded to the Board’s show cause order for failure to file a brief but has either not moved to reopen its trial period or has not been successful in any such motion.") (citing Gaylord Entertainment Co. v. Calvin Gilmore Productions, Inc., 59 USPQ2d 1369, 1372 (TTAB 2000)).