405.04(a) Time for Service of Responses
37 C.F.R. § 2.120(a)(3) . . . Responses to interrogatories . . . must be served within thirty days from the date of service of such discovery requests. * * * *
Fed. R. Civ. P. 33(b)(2) Time to Respond. The responding party must serve its answers and any objections within 30 days after being served with the interrogatories. * * * *
Responses to interrogatories must be served within 30 days after the date of service of the interrogatories. TBMP § 403.03. The time to respond may be extended upon stipulation of the parties, or upon motion granted by the Board, or by order of the Board, but the response may not be due later than the close of discovery. [ Note 1.] The resetting of a party’s time to respond to an outstanding request for discovery will not result in the automatic rescheduling of the discovery and/or testimony periods; such dates will be rescheduled only upon stipulation of the parties approved by the Board, or upon motion granted by the Board, or by order of the Board. [ Note 2.]
Service of responses to interrogatories must be made by email, unless otherwise stipulated, or if the serving party attempted service by email but service could not be made due to technical problems or extraordinary circumstances, by the manners described in 37 C.F.R. § 2.119(b). United States postal mail may not be available for U.S. counsel located outside the United States. [ Note 3.] See TBMP § 113.04. Additionally, even if interrogatories are served by postal service or overnight courier (either by agreement or when email service was attempted but could not be made), 37 C.F.R. § 2.119(c) has been amended to remove the previous provision that added five days to the prescribed period for action after the date of service so that no additional time for service of discovery responses is allowed for responding to the requests by any manner of service. [ Note 4.] TBMP § 113.05 and TBMP § 403.03.
A party which fails to respond to interrogatories during the time allowed therefor, and which is unable to show that its failure was the result of excusable neglect, may be found, on motion to compel filed by the propounding party, to have forfeited its right to object to the interrogatories on their merits. [ Note 5.] Objections going to the merits of an interrogatory or other discovery request include claims that the information sought by the request is irrelevant, overly broad, unduly vague and ambiguous, burdensome and oppressive, or not likely to lead to the discovery of admissible evidence. [ Note 6.] In contrast, objections based on claims of privilege or confidentiality or attorney work product do not go to the merits of the request, but instead to a characteristic of the information sought. [ Note 7.] Objections based on confidentiality are expected to be extremely limited because the Board’s standard protective order is in place for all Board inter partes proceedings. [ Note 8.]
NOTES:
3. 37 C.F.R. § 2.119(b) and 37 C.F.R. § 2.119(d). See MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES OF PRACTICE, 81 Fed. Reg. 69950, 69959 (October 7, 2016).
4. 37 C.F.R. § 2.119(c). See also MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES OF PRACTICE, 81 Fed. Reg. 69950, 69960 (October 7, 2016).
5. See No Fear Inc. v. Rule, 54 USPQ2d 1551, 1554 (TTAB 2000) (stating that the Board has great discretion in determining whether such forfeiture should be found); Envirotech Corp. v. Compagnie Des Lampes, 219 USPQ 448, 449 (TTAB 1979) (excusable neglect not shown where opposer was out of the country and, upon return, failed to ascertain that responses were due); Crane Co. v. Shimano Industrial Co., 184 USPQ 691, 691 (TTAB 1975) (waived right to object by refusing to respond to interrogatories, claiming that they served "no useful purpose"). See also Luehrmann v. Kwik Kopy Corp., 2 USPQ2d 1303, 1303 (TTAB 1987) (right to object not waived where although discovery responses were late, there was some confusion regarding time to respond); MacMillan Bloedel Ltd. v. Arrow-M Corp., 203 USPQ 952, 953 (TTAB 1979) (although party failed to timely respond to discovery, party seeking such discovery is required to make good faith effort to determine why no response has been made before filing motion to compel).
6. See No Fear Inc. v. Rule, 54 USPQ2d 1551, 1554 (TTAB 2000).
7. See No Fear Inc. v. Rule, 54 USPQ2d 1551, 1554 (TTAB 2000) (party will generally not be found to have waived the right to make these objections).