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).
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, 1093 (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)).