The CAFC issued a per curiam affirmance under Fed. Cir. R. 36, upholding the TTAB’s ruling dismissing an opposition because the opposer failed to respond to a Fed. R. Civ. P. 12(b)(6) motion to dismiss. Opposer NetxGen mistakenly believed that the Board would determine the motion on the merits even without a response, rather than consider the motion conceded. NextGen Biologics, Inc. v. Axolotl Biologix, Opposition No. 91236432 (March 29, 2019), affirmed per curiam, Appeal No. 2018-2016 (Fed. Cir. April 15, 2019).

Trademark Rule 2.127(a) states: “When a party fails to file a brief in response to a motion, the Board may treat the motion as conceded.” After the Board dismissed the opposition with prejudice, opposer requested reconsideration.

Opposer essentially argued that it believed the Board would decide the motion to dismiss on the merits, whether or not a response was filed, and further that the Board was obligated to invite opposer to submit an amended notice of opposition. Opposer cited no authority in support of that proposition. The Board was unmoved:

More pointedly addressing Opposer’s mistaken belief, the Board expects attorneys to be cognizant of their duties as officers of the court and to file proper and timely responses to motions; attorneys may not rely upon the Board to act as a surrogate advocate. See The General Tire & Rubber Co. v. The Gendelman Rigging & Trucking Inc., 189 USPQ 425, 427 (TTAB 1976).

The Board pointed out that opposer could have filed an opposition to the motion, or an amended notice of opposition within 21 days after service of the motion to dismiss (FRCP 15(a)(1)(B), or both. When opposer did neither, the Board followed its ordinary practice and stated authorities in granting applicant’s motion as conceded.

Since opposer did not point to any error by the Board, the request for reconsideration was denied.

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TTABlog comment: Lesson: read the Rules.

Text Copyright John L. Welch 2019.