Published by LawTechie - September 25, 2010 - LawTechie

Rule 2.127(d) will not automatically stay proceeding when a party files a motion for summary judgment, only a formal order suspending proceedings pending a resolution of the motion will do it, ruled the Board in Super Bakery, Incorporated v. Ward E. Benedict, Cancellation No. 92047859 (September 16, 2010) [precedential].

The defendant at bar, appearing pro se, failed to comply with the Board discovery orders after filing a motion for summary judgment. As a result, the Board ruled to cancel defendant’s mark. The Board noted, in dicta, that defendant had it coming:

Rather than providing justification for the failure to comply with the Board’s order, the filing of respondent’s clearly meritless motion for summary judgment just one day before respondent’s discovery responses were due can only be viewed as an effort to further obstruct petitioner’s rights to obtain discovery under the Board’s rules, the Board’s order compelling discovery, and the Board’s order granting discovery sanctions.

This case underscores the Board’s strict adherence to procedural policy (recall the Board’s strict limit on 25 pages for briefs in support of a motion, including cover page and table of contents — legion of caselaw shows failure to adhere resulting in complete disregard of the brief).

LawTechie is a blog focusing on trends in tech and digital media. Areas covered include intellectual property, cyberlaw, venture capital, transactions and litigation as they relate to the emerging sectors. The blog is edited by the firm's partner Tim Bukher with contributions from the firm's experts in their respective areas of law.


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