534    Motion For Judgment For Plaintiff’s Failure to Prove Case

534.01    In General

37 C.F.R. § 2.132  Involuntary dismissal for failure to take testimony.

  • (a) If the time for taking testimony by any party in the position of plaintiff has expired and it is clear to the Board from the proceeding record that such party has not taken testimony or offered any other evidence, the Board may grant judgment for the defendant. Also, any party in the position of defendant may, without waiving the right to offer evidence in the event the motion is denied, move for dismissal on the ground of the failure of the plaintiff to prosecute. The party in the position of plaintiff shall have twenty days from the date of service of the motion to show cause why judgment should not be rendered dismissing the case. In the absence of a showing of excusable neglect, judgment may be rendered against the party in the position of plaintiff. If the motion is denied, testimony periods will be reset for the party in the position of defendant and for rebuttal.
  • (b) If no evidence other than Office records showing the current status and title of plaintiff’s pleaded registration(s) is offered by any party in the position of plaintiff, any party in the position of defendant may, without waiving the right to offer evidence in the event the motion is denied, move for dismissal on the ground that upon the law and the facts the party in the position of plaintiff has shown no right to relief. The party in the position of plaintiff shall have twenty days from the date of service of the motion to file a brief in response to the motion. The Trademark Trial and Appeal Board may render judgment against the party in the position of plaintiff, or the Board may decline to render judgment until all testimony periods have passed. If judgment is not rendered on the motion to dismiss, testimony periods will be reset for the party in the position of defendant and for rebuttal.
  • (c) A motion filed under paragraph (a) or (b) of this section must be filed before the opening of the testimony period of the moving party, except that the Trademark Trial and Appeal Board may in its discretion grant a motion under paragraph (a) even if the motion was filed after the opening of the testimony period of the moving party.

When a party has not taken testimony or offered any other evidence the Board may grant judgment for the defendant sua sponte. [ Note 1.] In addition, the Trademark Rules of Practice permit the filing of a motion for judgment directed to the sufficiency of a plaintiff’s trial evidence in two particular situations, described in 37 C.F.R. § 2.132(a)  and 37 C.F.R. § 2.132(b). Only in these two situations will the Board entertain such a motion. See TBMP § 534.04. But cf. TBMP § 527.03.

NOTES:

 1.   See MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES, 81 Fed. Reg. 69950, 69968 (Oct. 7, 2016) ("The Office is amending § 2.132(a) to clarify that, if a plaintiff has not submitted evidence and its time for taking testimony has expired, the Board may grant judgment for the defendant sua sponte.").

534.02    Motion For Judgment Under 37 C.F.R. § 2.132(a)

The first situation in which a defendant may appropriately file a motion for judgment directed to the sufficiency of a plaintiff’s trial evidence, is when the plaintiff’s testimony period has passed, and the plaintiff has not taken testimony or offered any other evidence. [ Note 1.] In such a situation, the defendant may, without waiving its right to offer evidence in the event the motion is denied, move for dismissal for failure of the plaintiff to prosecute. [ Note 2.] A motion for judgment under 37 C.F.R. § 2.132(a)  should be filed before the opening of the moving party’s testimony period, but the Board may, in its discretion, grant the motion even if it is filed thereafter. [ Note 3.]

When a motion for judgment under 37 C.F.R. § 2.132(a)  has been filed by a defendant, the plaintiff has 20 days from the date of service of the motion in which to respond and show cause why judgment should not be rendered against it. In the absence of a showing of excusable neglect, judgment may be rendered against the plaintiff. [ Note 4.]

The "excusable neglect" standard, in the context of this rule, is equivalent to the "excusable neglect" standard that would have to be met by any motion under Fed. R. Civ. P. 6(b) to reopen the plaintiff’s testimony period. [ Note 5.]

For examples of cases involving the question of whether excusable neglect has been shown for a plaintiff’s failure to offer any evidence, see note below. [ Note 6.] For a complete discussion of excusable neglect and the standard to be applied, see TBMP § 509.01(b) regarding motions to reopen, and cases cited therein.

If a timely motion under 37 C.F.R. § 2.132(a)  is denied because plaintiff has shown excusable neglect, the result is that plaintiff’s testimony period will be reopened, and testimony periods will be reset for the plaintiff and defendant, and for rebuttal. [ Note 7.] The deadlines for defendant’s pretrial disclosures and plaintiff’s rebuttal disclosures will be reset as well.

The purpose of the motion under 37 C.F.R. § 2.132(a)  is to save the defendant the expense and delay of continuing with the trial in those cases where plaintiff has failed to offer any evidence during its testimony period. [ Note 8.] However, the defendant is under no obligation to file such a motion; the motion is optional, not mandatory. [ Note 9.] If no motion under 37 C.F.R. § 2.132(a)  is filed, trial and pretrial disclosure dates will continue to run, and the case may be determined at final hearing. In those cases where plaintiff did, in fact, fail to offer any evidence during its testimony period, plaintiff cannot prevail and, thus, defendant need not offer evidence either. [ Note 10.]

The fact that a defendant may have previously sought judgment under 37 C.F.R. § 2.132(b)  does not preclude it from thereafter seeking judgment under 37 C.F.R. § 2.132(a). [ Note 11.]

NOTES:

 1.   See 37 C.F.R. § 2.132(a); Otter Products LLC v. BaseOneLabs LLC, 105 USPQ2d 1252, 1254 (TTAB 2012) (" . . . the clear language of Trademark Rule 2.132(a) indicates that it applies only where the plaintiff has not introduced "any" evidence, i.e., no evidence of any kind, and here opposer has introduced something, regardless of whatever is found with respect to its ultimate impact."); Loren Cook Company v. The Acme Engineering and Manufacturing Corp., 216 USPQ 517, 519 (TTAB 1982) ("The [motion for judgment] rule is limited to situations where the plaintiff presents no evidence (2.132(a)) or where only Patent and Trademark Office records are of record (2.132(b)).").

 2.   See 37 C.F.R. § 2.132(a). See also, e.g., Hewlett-Packard Co. v. Olympus Corp., 931 F.2d 1551, 18 USPQ2d 1710, 1712 (Fed. Cir. 1991) (Board did not abuse discretion in denying motion to reopen testimony and dismissing proceeding on motion to dismiss where plaintiff submitted no evidence and failed to make a prima facie case); Procyon Pharmaceuticals Inc. v. Procyon Biopharma Inc., 61 USPQ2d 1542, 1544 (TTAB 2001) (motion to extend testimony period denied; motion to dismiss granted); SFW Licensing Corp. v. Di Pardo Packing Ltd., 60 USPQ2d 1372, 1374 (TTAB 2001) (same); Societa Per Azioni Chianti Ruffino Esportazione Vinicola Toscana v. Colli Spolentini Spoletoducale SCRL, 59 USPQ2d 1383, 1384 (TTAB 2001) (motion to extend testimony period granted, motion to dismiss denied); Atlanta Fulton County Zoo Inc. v. De Palma, 45 USPQ2d 1858, 1860 (TTAB 1998) (motion to reopen discovery and testimony periods denied, motion to dismiss granted); Hartwell Co. v. Shane, 17 USPQ2d 1569, 1570 n.4 (TTAB 1990) (respondent advised that if petitioner continued to show no interest and failed to take testimony, applicant may avail itself of 37 C.F.R. § 2.132(a)); Hester Industries Inc. v. Tyson Foods Inc., 2 USPQ2d 1645, 1845-46 (TTAB 1987) (where opposer failed to offer evidence during its testimony period, applicant could have filed motion to dismiss instead of offering its own evidence); Loren Cook Co. v. Acme Engineering and Manufacturing Corp., 216 USPQ 517, 519 (TTAB 1982) (where evidence was presented by plaintiff, motion for judgment under 37 C.F.R. § 2.132 was not entertained).

 3.   See 37 C.F.R. § 2.132(c). See also Hewlett-Packard Co. v. Olympus Corp., 931 F.2d 1551, 18 USPQ2d 1710, 1712 (Fed. Cir. 1991); Atlanta Fulton County Zoo Inc. v. De Palma, 45 USPQ2d 1858, 1860 (TTAB 1998).

 4.   See 37 C.F.R. § 2.132(a). See also Hewlett-Packard Co. v. Olympus Corp., 931 F.2d 1551, 18 USPQ2d 1710, 1713 (Fed. Cir. 1991) ("While it is true that the law favors judgments on the merits wherever possible, it is also true that the Patent and Trademark Office is justified in enforcing its procedural deadlines"); Sterling Jewelers Inc. v. Romance & Co., 110 USPQ2d 1598, 1601-02 (TTAB 2014) (granting 37 C.F.R. 2.132(a) motion to dismiss for failure to prosecute where opposer took no testimony and plain copy of pleaded registration was attached to notice of opposition – registration not properly of record, and applicant’s admission in answer that opposer "is listed" as the owner does not establish opposer’s current ownership of the pleaded registration); PolyJohn Enterprises Corp. v. 1-800-Toilets Inc., 61 USPQ2d 1860, 1862 (TTAB 2002) (Board is justified in enforcing procedural deadlines). Cf. Litton Business Systems, Inc. v. JG Furniture Co., 188 USPQ 509, 512 (TTAB 1976) (although no testimony or other evidence was introduced, answer to complaint contained certain admissions which arguably preserved enough of an issue to proceed to final hearing). But see Cutino v. Nightlife Media, Inc., 575 F. App’x 888 (Fed. Cir. 2014) (applicant admitted in its answer that opposer was the owner of the mark, and did not deny in the answer that opposer owned the pleaded registration sufficient to be an admission regarding ownership and status of the pleaded registration).

 5.   37 C.F.R. § 2.132(a). The 2017 amendments to 37 C.F.R. § 2.132(a) changed the terminology in the applicable standard from "good and sufficient cause" to "excusable neglect." See MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES, 81 Fed. Reg. 69950, 69968 (Oct. 7, 2016) ("The Office is further amending §2.132(a) to clarify that the standard for the showing required not to render judgment dismissing the case is excusable neglect.") Consequently, cases determined before the amendments went into effect may use the earlier terminology, e.g., "good and sufficient cause" but they remain authoritative. See also PolyJohn Enterprises Corp. v. 1-800-Toilets Inc., 61 USPQ2d 1860, 1860-61 (TTAB 2002) (good and sufficient cause standard in context of motion to dismiss under 37 C.F.R. § 2.132(a) is excusable neglect standard); HKG Industries Inc. v. Perma-Pipe Inc., 49 USPQ2d 1156, 1157 (TTAB 1998) (good and sufficient cause standard is equivalent of excusable neglect because response to motion to dismiss is essentially motion to reopen testimony); Grobet File Co. of America Inc. v. Associated Distributors Inc., 12 USPQ2d 1649, 1651 (TTAB 1989) (showing of good and sufficient cause is equivalent of excusable neglect because it requires the reopening of the testimony period to introduce the evidence).

 6.   See Pioneer Investment Services Co. v. Brunswick Associates L.P., 507 U.S. 380, 395 (1993) (Supreme Court articulates present standard for excusable neglect – cases decided prior to Pioneer may no longer be correct); Pumpkin Ltd. v. The Seed Corps, 43 USPQ2d 1582, 1586 (TTAB 1997) (Board adopts Pioneer standard that excusable neglect determination must take into account all relevant circumstances surrounding the party’s omission or delay, including (1) the danger of prejudice to the nonmovant, (2) the length of the delay and its potential impact on judicial proceedings, (3) the reason for the delay, including whether it was within the reasonable control of the movant, and (4) whether the movant acted in good faith).

See also Vital Pharmaceuticals Inc. v. Kronholm, 99 USPQ2d 1708, 1711 (TTAB 2011) (no excusable neglect to reopen testimony based on purported settlement discussions); Melwani v. Allegiance Corp., 97 USPQ2d 1537, 1541-42 (TTAB 2010) (excusable neglect not found where reason for delay was opposer’s mistaken belief that proceedings were suspended); Old Nutfield Brewing Co., Ltd. v. Hudson Valley Brewing Co., 65 USPQ2d 1701, 1703 (TTAB 2002) (excusable neglect not found where opposer waited four months after close of testimony period to file motion to reopen and where reason for delay was based on, inter alia, opposer’s asserted failure to receive answer to opposition); PolyJohn Enterprises Corp. v. 1-800-Toilets Inc., 61 USPQ2d 1860, 1860-61 (TTAB 2002) (excusable neglect not found where motion to reopen was filed nearly one month after close of testimony period and was based on mistaken belief that extension of time to respond to discovery extended testimony period and on fact that petitioner was gathering information to respond to discovery); Jain v. Ramparts, 49 USPQ2d 1429, 1431 (TTAB 1998) (pendency of plaintiff’s motion to compel and extend trial dates after ruling on such motion sufficient cause for failure to try case); HKG Industries Inc. v. Perma-Pipe Inc., 49 USPQ2d 1156, 1157 (TTAB 1998) (plaintiff provided no factual details as to the date of counsel’s death in relation to plaintiff’s testimony period or as to why other lawyers in deceased counsel’s firm could not have assumed responsibility for the case); Atlanta Fulton County Zoo Inc. v. De Palma, 45 USPQ2d 1858, 1859-60 (TTAB 1998) (mere existence of settlement negotiations insufficient).

 7.   See 37 C.F.R. § 2.132(a).

 8.   See Otter Products LLC v. BaseOneLabs LLC, 105 USPQ2d 1252, 1254 (TTAB 2012) (Supplemental Registration of record is evidence of record such that a motion under 37 C.F.R. § 2.132(a) is not available, though a motion under 37 C.F.R. § 2.132(b) may be available); Litton Business Systems, Inc. v. J. G. Furniture Co., 190 USPQ 428, 430-31, recon. denied, 190 USPQ 431 (TTAB 1976).

 9.   See Pfaltzgraf v. William Davies Co., 175 USPQ 620, 620-21 (TTAB 1972).

 10.   See, e.g., Hester Industries Inc. v. Tyson Foods Inc., 2 USPQ2d 1645, 1645-46 (TTAB 1987) (opposition dismissed where applicant filed evidence instead of a motion to dismiss and opposer filed improper rebuttal); Pfaltzgraf v. William Davies Co. Inc., 175 USPQ 620, 620-21 (TTAB 1972).

 11.   See W. R. Grace & Co. v. Red Owl Stores, Inc., 181 USPQ 118, 119-20 (TTAB 1973).

534.03    Motion For Judgment Under 37 C.F.R. § 2.132(b)

The second situation in which a defendant may appropriately file a motion for judgment directed to the sufficiency of a plaintiff’s trial evidence is when the plaintiff’s testimony period has passed, and the plaintiff has offered no evidence other than a copy or copies of USPTO records. Such records include originals or copies of a plaintiff’s pleaded registration prepared and issued by the USPTO showing status and title thereof, or a current printout obtained from the USPTO database records showing status and title thereof. In such a situation, the defendant may, without waiving its right to offer evidence in the event the motion is denied, move for dismissal on the ground that upon the law and the facts the plaintiff has shown no right to relief. [ Note 1.] A motion for judgment under 37 C.F.R. § 2.132(b)  must be filed before the opening of the moving party’s testimony period. [ Note 2.]

When a motion for judgment under 37 C.F.R. § 2.132(b)  has been filed by a defendant, the plaintiff has 20 days from the date of service of the motion to file a brief in response. [ Note 3.]

In determining a motion under 37 C.F.R. § 2.132(b), the Board may either render judgment against the plaintiff, or decline to render judgment until all of the evidence is in the record and decide the case on its merits. [ Note 4.]

If a timely motion under 37 C.F.R. § 2.132(b)  is denied, testimony periods and pretrial disclosure deadlines will be reset for the defendant and for rebuttal. [ Note 5.]

The purpose of the motion under 37 C.F.R. § 2.132(b)  is to save the defendant the expense and delay of continuing with the trial in those cases where plaintiff, during its testimony period, has offered no evidence other than copies of USPTO records, and those records do not make out a prima facie case. [ Note 6.] However, the defendant is under no obligation to file such a motion; the motion is optional, not mandatory. [ Note 7.]

The fact that a defendant may have previously sought judgment under 37 C.F.R. § 2.132(a)  does not preclude it from thereafter seeking judgment under 37 C.F.R. § 2.132(b). [ Note 8.]

NOTES:

 1.   See 37 C.F.R. § 2.132(b).

 2.   See 37 C.F.R. § 2.132(c).

 3.   See 37 C.F.R. § 2.132(b).

 4.   37 C.F.R. § 2.132(b). See Merker Counter Co. v. Central Counter Co., 310 F.2d 746, 135 USPQ 433, 434-35 (CCPA 1962) (declined to render judgment); Skincode AG v. Skin Concept AG, 109 USPQ2d 1325, 1329 (TTAB 2013) (dismissed opposition with prejudice with respect to unproven common law rights (likelihood of confusion) and dilution claim; denied motion with respect to pleaded registration which was of record since prima facie case of likelihood of confusion established); Syntex (U.S.A.) Inc. v. E.R. Squibb & Sons Inc., 14 USPQ2d 1879, 1880 (TTAB 1990) (judgment entered where marks not identical and the relationship, if any, between the parties’ goods not apparent from the face of pleaded registration); Newhoff Blumberg Inc. v. Romper Room Enterprises, Inc., 193 USPQ 313, 315 (TTAB 1976) (motion granted as conceded but even if denied, petition to cancel would have been dismissed on the merits). Cf. Litton Business Systems, Inc. v. JG Furniture Co., 188 USPQ 509, 512 (TTAB 1976) (where 37 C.F.R. § 2.132(a) motion was filed, although no testimony or other evidence had been introduced, answer to complaint contained certain admissions which arguably preserved enough of an issue to proceed to final hearing).

 5.   37 C.F.R. § 2.132(b).

 6.   See, e.g., Otter Products LLC v. BaseOneLabs LLC, 105 USPQ2d 1252, 1256 (TTAB 2012) (Supplemental Registration insufficient to establish that opposer owns a proprietary right); Syntex (U.S.A.) Inc. v. E.R. Squibb & Sons Inc., 14 USPQ2d 1879, 1880 (TTAB 1990) (marks not identical and the relationship, if any, between the parties’ goods not apparent from the face of pleaded registration); Litton Business Systems, Inc. v. J. G. Furniture Co., 190 USPQ 431, 434 (TTAB 1976) (Board will not use judicial notice to remedy plaintiff’s failure to present adequate evidence). Cf. Benedict v. Super Bakery Inc., 665 F.3d 1263, 101 USPQ2d 1089, 1092 (Fed. Cir. 2011) (Board did not abuse discretion in entering default judgment under 37 C.F.R. § 2.132(b) against registrant who "continually failed to comply with Board orders, and had hampered reasonable procedures appropriate to resolution of this trademark conflict").

 7.   Cf. Pfaltzgraf v. William Davies Co., 175 USPQ 620, 621 (TTAB 1972) (respondent under no obligation to move for judgment under 37 C.F.R. § 2.132(a)).

 8.   See W.R. Grace & Co. v. Red Owl Stores, Inc., 181 USPQ 118, 119-20 (TTAB 1973); see also Newhoff Blumberg Inc. v. Romper Room Enterprises, Inc., 193 USPQ 313, 315 (TTAB 1976) (entertaining motion under 37 C.F.R. § 2.132(b) after the filing of a motion under 37 C.F.R. § 2.132(a)).

534.04    Motion Under Fed. R. Civ. P. 41(b) or Fed. R. Civ. P. 50(a) Not Available

Trial testimony, in Board inter partes proceedings, is taken out of the presence of the Board, and it is the policy of the Board not to read trial testimony, or examine other trial evidence, prior to its final deliberations in the proceeding. See TBMP § 502.01.

Accordingly, the only means available for testing the sufficiency of trial evidence in an inter partes proceeding before the Board are the motions described in 37 C.F.R. § 2.132(a)  and 37 C.F.R. § 2.132(b)  TBMP §534.02. [ Note 1.] See TBMP §534.02 and TBMP § 534.03. The motion under Fed. R. Civ. P. 41(b) for involuntary dismissal, and the motion under Fed. R. Civ. P. 50(a) for judgment as a matter of law during and following jury trials (also referred to as a "directed verdict"), are not available in Board proceedings. See TBMP § 502.01. [ Note 2.]

NOTES:

 1.   Sunrider Corp. v. Raats, 83 USPQ2d 1648, 1654 (TTAB 2007) (motion for involuntary dismissal under 37 C.F.R. § 2.132(a) denied; six days’ notice reasonable for testimony deposition that took place during opposer’s testimony period).

 2.   See Kasco Corp. v. Southern Saw Service, Inc., 27 USPQ2d 1501, 1504 n.2 (TTAB 1993) (Fed. R. Civ. P. 50(a) motion unavailable); No Nonsense Fashions, Inc. v. Consolidated Foods Corp., 226 USPQ 502, 506 n.9 (TTAB 1985) (Fed. R. Civ. P. 41(b) motion unavailable).