Herbaceuticals, Inc.v.Xel Herbaceuticals, Inc.

Trademark Trial and Appeal Board

Mar 7, 2008

No. 92045172 (T.T.A.B. Mar. 7, 2008)

Baxley Mailed: March 7, 2008

Cancellation No. 92045172

Herbaceuticals, Inc.

v.

Xel Herbaceuticals, Inc.

Before Quinn, Rogers and Cataldo,
Administrative Trademark Judges

By the Board:

Xel Herbaceuticals, Inc. ("Xel") owns six registrations
for various permutations of the mark XEL HERBACEUTICALS,
both as a word mark and with a design component.1

1 Xel's registrations, each of which include a disclaimer of
HERBACEUTICALS, are as follows:
Registration No. 2845260, issued May 25, 2004, for the mark XEL
HERBACEUTICALS in standard character form and Registration No.
2860543, issued July 6, 2004, for the mark XEL HERBACEUTICALS and
design, both for "teas; herbal teas for food purposes, green
teas, black teas, iced teas, coffee based beverages containing
milk, herbal teas and chicory based coffee substitute; functional
foods, namely, chocolate-based ready-to-eat food bars, candy
bars, granola-based snack bars, bread, processed cereals,
breakfast cereals, biscuits and cakes; noodles and pasta; candy,
chewing gum, bubble gum; ice cream, frozen yogurt and ice cream
substitute; functional beverages, namely, grain-based food
beverage containing oats or oat extracts" in International Class
30;
Registration No. 2948354 for the mark XEL HERBACEUTICALS in
standard character form and Registration No. 2948359 for the mark
XEL HERBACEUTICALS and design, both issued May 10, 2005, and both
for "skin care preparations, namely, anti-wrinkle, moisturizing,
skin lightener and skin-firming creams, lotions, toners,
cleansers, moisturizers, gels, emulsions, serums, facial mask
packs, cleansers, eye treatments, and face and body powder,
creams; cosmetics, namely, foundation, blushers, blemish touch-up
sticks, mascara, eyeshadow, eyeliner, eye makeup, lipstick, lip
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
P.O. Box 1451
Alexandria, VA 22313-1451
This decision is a precedent of the
Trademark Trial and Appeal Board.
Cancellation No. 92045172
2
Herbaceuticals, Inc. ("HCI") seeks to cancel all six of
Xel's registrations on the grounds of: 1) fraud, based on
Xel's failure to have used its marks on all of the goods set
forth in the respective identifications of goods of the
involved registrations at the time it filed its statements
of use in the underlying applications; and 2) likelihood of
confusion with HCI's previously used and registered mark HCI
HERBACEUTICALS, INC. and design for "cosmetics, namely body
and facial skin lotions, creams and powders, body and facial
skin cleansers, bath oils and beads, shampoos and
conditioners" in International Class 3,2 and its previously
used mark HERBACEUTICALS for "cosmetic, dietary, and
cleansing products."

pencil, nail enamel, nail care treatments, sun block, after-sun
balm, deodorant, anti-perspirant, perfume and cologne; hair care
preparations, namely, hair shampoo, hair conditioner, hair cream
rinse, hair spray, hair mousse, hair treatments, hair gel, hair
moisturizer" in International Class 3;
Registration No. 2970979 for the mark XEL HERBACEUTICALS in
standard character form and Registration No. 2970981 for the mark
XEL HERBACEUTICALS and design, both issued July 19, 2005, and
both for "pharmaceuticals, namely, antihypertension agents,
diuretics, anorexigenics, fungistatic and fungicidal agents,
analgesics, hormonal agents, antitussive agents, sedatives,
cardiac agents, antimicrobial and antibacterial agents,
anticancer agents and medicine filled patches; herbal dietary
nutritional supplements and vitamins" in International Class 5.

2 Such mark is shown in Registration No. 2585974 in the following
form,
.
Cancellation No. 92045172
3
Xel, in its answer, denied the salient allegations of
the petition to cancel, asserted affirmative defenses,
including laches, and included a counterclaim to cancel
HCI's pleaded registration on the ground of genericness.
HCI denied the salient allegations of the counterclaim in
its answer.
This case now comes up for consideration of HCI's
motion (filed December 5, 2006) for summary judgment on its
pleaded fraud claim with regard to all six of Xel's involved
registrations. The motion has been fully briefed.
In support of its motion, HCI contends that Xel
disregarded the truth as well as the seriousness of the oath
in the statements of use that it filed in connection with
the applications resulting in Xel's involved registrations;
and that Xel's pattern of conduct evinces a disregard for
Office practice and procedure and a desire to obtain
trademark rights to which it is not entitled. In
particular, HCI contends that Xel was not using its marks on
all the goods identified in the respective notices of
allowance, when it filed its statements of use.
With regard to Registration Nos. 2948354, and 2948359
for goods in International Class 3, HCI contends that Xel
knew or should have known that it was not using the subject
marks on serums, facial mask packs, face powder, body
powder, foundation, blushers, blemish touch-up sticks,
Cancellation No. 92045172
4
mascara, eye shadow, eyeliner, eye makeup, lipstick, lip
pencil, nail enamel, nail care treatments, perfume, cologne,
hair care preparations, hair shampoo, hair conditioner, hair
cream rinse, hair spray, hair mousse, hair treatments, hair
gel, and hair moisturizer in International Class 3 when it
filed its statements of use. With regard to Registration
Nos. 2845260 and 2860543 for goods in International Class
30, HCI contends that Xel knew or should have known that it
was not using the mark on coffee based beverages containing
milk, chicory based coffee substitute, chocolate-based
ready-to-eat food bars, candy bars, granola-based snack
bars, bread, processed cereals, breakfast cereals, biscuits,
cakes, noodles, pasta, chewing gum, bubble gum, ice cream,
frozen yogurt, ice cream substitute, and grain-based food
beverage containing oats or oat extracts. With regard to
Registration Nos. 2970979 and 2970981 for goods in
International Class 5, HCI contends that Xel knew or should
have known that it was not using the mark on any of the
goods recited therein. HCI further contends that, by virtue
of its ownership of Registration Nos. 2585974 and 2822094
for the mark HCI HERBACEUTICALS, INC and design and its use
since 1992 of the mark HERBACEUTICALS for cosmetic, dietary
and cleansing products, it has standing to pursue this
cancellation proceeding. Based on the foregoing, HCI
contends that there is no genuine issue of material fact
Cancellation No. 92045172
5
that Xel's involved registrations were obtained fraudulently
and that they should be cancelled.
As evidence in support of its motion, HCI has submitted
a declaration of HCI's attorney, Abigail Rubenstein, through
which HCI makes of record: a) status reports from the
USPTO's Trademark Applications and Retrieval (TARR) database
for the involved registrations; b) copies of the statements
of use for the involved registrations; c) copies of Xel's
responses to certain discovery requests; d) documents
produced by Xel in discovery; e) certified copies of HCI's
Registration Nos. 2585974 and 2822094; and f) copies of
dictionary definitions of the words "tea," "tea bag," and
"pharmaceutical."
In opposition, Xel contends that HCI does not have
standing to pursue this cancellation because the mark in its
pleaded registrations is generic; that the statements made
in its involved statements of use were not false because Xel
stated in the declaration, i.e., the "sworn portion"
thereof, that the marks were in use on "the goods/services,"
as opposed to "all the goods services;" that Xel's attorney,
who signed the statements of use, attested to the statements
made therein "on information and belief" and was not
required to have actual knowledge of each good on which the
marks were used; that Xel did not intend to receive
trademark rights to which it is not entitled; that any false
Cancellation No. 92045172
6
statements made in the statement of use are immaterial to
the goods on which the marks are in use; that the examining
attorney had determined that Xel was entitled to
registrations for the complete identifications of goods at
issue; that the proper remedy under the circumstances is
partial cancellation of the registrations; and that HCI is
estopped from pursuing the petition to cancel on the
doctrine of laches.
As evidence in opposition to the motion for summary
judgment, Xel submitted a declaration of its attorney, Peter
M. de Jonge, through which Xel makes of record: a) copies of
documents produced by Xel in discovery which purportedly
show the word "herbaceutical(s)" used generically by others;
b) a copy of HCI's responses to Xel's interrogatories; and
c) a copy of a December 18, 2000 cease and desist letter
from HCI's former attorney to Xel's attorney that was
produced by HCI during discovery.
In reply, HCI contends that it has standing to pursue
its petition to cancel regardless of whether or not the term
HERBACEUTICALS is generic; that Xel's attempts to divide the
statements of use into sworn and unsworn sections is
"absurd;" that Xel's false statements were material to the
registration of the subject marks; that the appropriate
remedy under the circumstances is complete cancellation
rather than amendment of the involved registrations; and
Cancellation No. 92045172
7
that laches is unavailable as an affirmative defense against
a claim of fraud.
As an initial matter, Xel's contention that
petitioner's petition to cancel is barred by laches is
incorrect. Laches is unavailable as an affirmative defense
against a claim of fraud.3 See Bausch & Lomb, Inc. v.
Leupold & Stevens Inc., 1 USPQ2d 1497, 1499 (TTAB 1986).
We turn next to HCI's motion for summary judgment.
Summary judgment is an appropriate method of disposing of a
case in which there are no genuine issues of material fact
in dispute, thus leaving the case to be resolved as a matter
of law. See Fed. R. Civ. P. 56(c). A dispute as to a
material fact is genuine only if a reasonable fact finder
viewing the entire record could resolve the dispute in favor
of the nonmoving party. See Old Tyme Foods Inc. v. Roundy's
Inc., 961 F.2d 200, 22 USPQ2d 1542, 1544 (Fed. Cir. 1992).
In deciding a motion for summary judgment, the Board must
view the evidence in the light most favorable to the
nonmovant, and must draw all reasonable inferences from
underlying facts in favor of the nonmovant. See id.

3 "[I]t is within the public interest to have registrations which
are void ab initio stricken from the register and that this
interest or concern cannot be waived by the inaction of any
single person or concern no matter how long the delay persists."
W.D. Byron & Sons, Inc. v. Stein Bros. Mfg. Co., 146 USPQ 313
(TTAB 1965), aff'd, 377 F.2d 1001, 153 USPQ 749 (CCPA 1967).

Cancellation No. 92045172
8
A party moving for summary judgment has the burden of
demonstrating the absence of any genuine issue of material
fact, and that it is entitled to entry of judgment as a
matter of law. See Celotex Corp v. Catrett, 477 U.S. 317
1986; Sweats Fashions Inc. v. Pannill Knitting Co. Inc., 833
F.2d 1560, 4 USPQ2d 1793 (Fed. Cir. 1987). When the moving
party's motion is supported by evidence sufficient to
indicate that there is no genuine issue of material fact,
and that the moving party is entitled to judgment, the
burden shifts to the nonmoving party to demonstrate the
existence of specific genuinely disputed facts that must be
resolved at trial. The nonmoving party may not rest on the
mere allegations of its pleadings and arguments in response
to the motion, but must designate specific portions of the
record or produce additional evidence showing the existence
of a genuine issue of material fact for trial. In general,
to establish the existence of disputed facts requiring
trial, the nonmoving party "must point to an evidentiary
conflict created on the record at least by a
counterstatement of facts set forth in detail in an
affidavit by a knowledgeable affiant." Octocom Systems Inc.
v. Houston Computer Services Inc., 918 F.2d 937, 16 USPQ2d
1783, 1786 (Fed. Cir. 1990), citing Barmag Barmer
Maschinentfabrik AG v. Murata Machinery, Ltd., 731 F.2d 831,
221 USPQ 561, 564 (Fed. Cir. 1984).
Cancellation No. 92045172
9
As a preliminary matter, we find that there is no
genuine issue of material fact as to HCI's standing. HCI
included as an exhibit to its motion for summary judgment a
certified copy of pleaded Registration No. 2585974 showing
that the registration is in full force and effect and owned
by HCI.4 Such copy is sufficient to show that there is no
genuine issue of material fact that HCI has a real interest
in the proceedings, i.e., a personal interest in the outcome
of the proceeding, and a reasonable basis for a belief of
damage. See, e.g., Trademark Act Section 14(a), 15 U.S.C.
Section 1064(a); Cunningham v. Laser Golf Corp., 222 F.3d
943, 55 USPQ2d 1842 (Fed. Cir. 2000); Universal Oil Prod.
Co. v. Rexall Drug & Chem. Co., 463 F.2d 1122, 174 USPQ 458,
459 (CCPA 1972). Even if we assume, for the sake of
argument, that the word "herbaceutical" is generic, this
does not void HCI's standing.
We turn next to the merits of the motion for summary
judgment with regard to the pleaded fraud claim. Based on
the record now before us, and for the reasons discussed
below, we conclude that HCI is entitled to entry of partial
summary judgment on the fraud claim. HCI has made a prima

4 HCI also relies upon its unpleaded Registration No. 2822094 in
support of its claim to standing. HCI may not rely upon an
unpleaded registration in support of its claims. See TBMP
Section 314 (2d ed. rev. 2004). If HCI wants to rely upon its
Registration No. 2822094, it must seek leave to amend its
petition to cancel to rely on such. See Fed. R. Civ. P. 15(a);
TBMP Section 507.02(a) (2d ed. rev. 2004).
Cancellation No. 92045172
10
facie showing that there are no genuine issues of material
fact remaining for trial with regard to the asserted fraud
in the procurement of Registration Nos. 2845860, 2860543,
2948354, and 2948359, which showing Xel has failed to rebut.
We also find, however, with regard to remaining Registration
Nos. 2970979 and 2970981, that there are genuine issues of
material fact which remain for trial.
An applicant may file a statement of use only when the
applicant has made use of the mark in commerce on or in
connection with all of the goods or services, as specified
in the notice of allowance, for which applicant seeks
registration, unless the statement of use asserts use on
only some goods or services and either deletes those goods
and/or services on which the mark is not in use or is
accompanied by a request in accordance with Trademark Rule
2.87 to divide out from the application the goods or
services to which the statement of use pertains. See
Trademark Rule 2.88(c); TMEP Section 1109.03 (5th ed. 2007).
Fraud in procuring a trademark registration occurs when
an applicant for registration knowingly makes false,
material representations of fact in connection with an
application to register. See Torres v. Cantine Torresella
S.r.l., 808 F.2d 46, 1 USPQ2d 1483 (Fed. Cir. 1986). A
party making a fraud claim is under a heavy burden because
fraud must be proved by clear and convincing evidence,
Cancellation No. 92045172
11
leaving nothing to speculation, conjecture, or surmise. Any
doubt must be resolved against the party making the claim.
See Smith International, Inc. v. Olin Corporation, 209 USPQ
1033 (TTAB 1981).
Statements regarding the use of the mark on the
identified goods and/or services are certainly material to
issuance of a registration. See Hachette Fillipacchi Presse
v. Elle Belle, LLC, 85 USPQ2d 1090 (TTAB 2007) (fraud found
based on applicant's allegation of use of its mark for a
wide variety of clothing items for men, women and children
when mark had not been used for any identified items for men
or children and only for a limited number of items for
women); Sinclair Oil Corporation v. Kendrick, 85 USPQ2d 1032
(TTAB 2007) (fraud found based on applicant's allegation of
use of its mark in connection with retail store services
when mark had only been used on a small number of product
samples, which were given away four years prior to the
filing of the application); Hurley International LLC v.
Volta, 82 USPQ2d 1339 (TTAB 2007) (fraud found based on
applicants' allegation of use of their mark for various
entertainment services and production services, when mark
had not been used anywhere in the world for some of the
services and had not been used in commerce with or in the
United States for other services); Standard Knitting Ltd. v.
Toyota Jidosha Kabushiki Kaisha, 77 USPQ2d 1917 (TTAB 2006)
Cancellation No. 92045172
12
(counterclaim petition for cancellation of petitioner's
pleaded registrations granted when fraud found based on
misrepresentation regarding use of the mark on most of the
goods identified in the filed applications); First
International Services Corp. v. Chuckles Inc., 5 USPQ2d 1628
(TTAB 1988) (fraud found in applicant's filing of
application with verified statement that the mark was in use
on a range of personal care products when applicant knew it
was in use only on shampoo and hair setting lotion).
Contrary to Xel’s assertion, partial cancellation is
not the appropriate remedy here. Partial cancellation would
merely place Xel in the same position in which it would have
been had it filed statements of use which accurately
reflected the goods on which the marks were being used.
Rather, if fraud can be shown in the procurement of a
registration, the registration is void in the international
class or classes in which fraud based on nonuse has been
committed.5 See General Car and Truck Leasing Systems, Inc.
v. General Rent-A-Car Inc., 17 USPQ2d 1398, 1401 (S.D. Fla.

5 Xel's reliance upon Grand Canyon West Ranch LLC v. Hualapai
Tribe, 78 USPQ2d 1696 (TTAB 2006), in support of its contention
that partial cancellation is the appropriate remedy under the
circumstances is misplaced. In that case, the Board found that,
in view of applicant's nonuse of the involved mark on some of the
services identified in the involved application, partial judgment
as to the goods for which use of the mark was not made was
appropriate. However, that was because no fraud claim had yet
been pleaded and the Board was only concerned with the question
of use or non-use for particular items.

Cancellation No. 92045172
13
1990), aff'g General Rent-A-Car Inc. v. General Leaseways,
Inc., Canc. No. 14,870 (TTAB May 2, 1998).
This case is similar to Medinol Ltd. v. Neuro Vasx,
Inc., 67 USPQ2d 1205 (TTAB 2003). In Medinol, a trademark
application was filed, the mark was published, a statement
of use was submitted, and a registration issued for “medical
devices, namely, neurological stents and catheters.” In
response to a petition for cancellation, registrant admitted
in its answer that the mark was not used on stents. The
Board stated as follows:
The fraud alleged by petitioner is that respondent
knowingly made a material representation to the
USPTO in order to obtain registration of its
trademark for the identified goods. There is no
question that the statement of use would not have
been accepted nor would registration have issued
but for respondent's misrepresentation, since the
USPTO will not issue a registration covering goods
upon which the mark has not been used. (cites
omitted).

Id. at 1208.
In response to requests for admission in this case, Xel
admitted that it was not using in commerce the marks
ultimately registered under Nos. 2948354 and 2948359 for the
following goods in International Class 3 even though they
were listed in the statements of use Xel filed: serums,
facial mask packs, face powder, body powder, foundation,
blushers, blemish touch-up sticks, mascara, eye shadow,
eyeliner, eye makeup, lipstick, lip pencil, nail enamel,
nail care treatments, perfume, cologne, hair care
Cancellation No. 92045172
14
preparations, hair shampoo, hair conditioner, hair cream
rinse, hair spray, hair mousse, hair treatments, hair gel,
and hair moisturizer. Xel further admitted that it was not
using in commerce the marks ultimately registered under Nos.
2845260 and 2860543 for the following goods in International
Class 30 even though they were listed in the statements of
use Xel filed: coffee based beverages containing milk,
chicory based coffee substitute, chocolate-based ready-to-
eat food bars, candy bars, granola-based snack bars, bread,
processed cereals, breakfast cereals, biscuits, cakes,
noodles, pasta, chewing gum, bubble gum, ice cream, frozen
yogurt, ice cream substitute, and grain-based food beverage
containing oats or oat extracts.
The nature of the goods identified in the notices of
allowance at issue was not complicated or highly technical.
The mark was either in use on all of those goods, or it was
not. Notwithstanding that the marks at issue were not in
use on many of the goods identified in the respective
notices of allowance, Xel's attorney signed each of the
statements of use averring use for "all goods and/or
services listed in the application or Notice of Allowance."
Such statements were made in each case under penalty of
"fine or imprisonment, or both, ... and [knowing] that such
willful false statements may jeopardize the validity of the
application or any resulting registration…." Even if Xel's
Cancellation No. 92045172
15
attorney was signing the statements of use based on
information and belief, he was clearly in a position to know
(or to inquire) as to the truth of the statements providing
reason to believe. Statements under oath are made with a
degree of solemnity requiring thorough investigation prior
to signature and submission to the USPTO. See id. at 1209;
Patent and Trademark Office Rule 10.18(b)(2).
Xel's apparent belief that statements of use are
divisible into unsworn and "sworn portion[s]" is incorrect.
A declaration relates to all statements in the document of
which the declaration is a part. See Medinol Ltd. v. Neuro
Vasx, Inc., supra at 1209. Treating statements of use as
divided into sworn and unsworn sections would encourage
applicants to conclude that they could make
misrepresentations willfully and without penalty.
We reject Xel's contention that use of the wording "all
goods and/or services" in the body of the statements of use
and "the goods/services" in the supporting declaration gives
the respective phrases different meanings. (emphasis added)
In the declaration for each statement of use, Xel's attorney
averred that Xel was "using the mark in commerce or in
connection with the goods/services identified above." The
goods identified above in the body of the statements of use
are "all goods and/or services listed in the application or
Cancellation No. 92045172
16
Notice of Allowance." Accordingly, the wording at issue is
synonymous.
The undisputed facts in this case clearly establish
that Xel knew or should have known at the time it submitted
its statements of use that the mark was not in use on all of
the goods identified in the notices of allowance at issue.
Considering that Mr. de Jonge admitted in his declaration
that he did not have actual knowledge as to the goods on
which the involved marks were being used, he was obligated
to inquire. See Patent and Trademark Office Rule
10.18(b)(2). To the extent he did inquire, his inquiries
would appear to have been grossly insufficient. See Medinol
Ltd. v. Neuro Vasx, Inc., supra at 1209. The specific or
actual intent of Mr. de Jonge is not material to the
question of fraud. "[P]roof of specific intent to commit
fraud is not required, rather, fraud occurs when an
applicant or registrant makes a false material
representation that the applicant or registrant knew or
should have known was false." General Car and Truck Leasing
Systems, Inc. v. General Rent-A-Car Inc., supra.
While it is clear that not all incorrect statements
constitute fraud, the relevant facts in this record allow no
other conclusion. We find that Xel’s material
misrepresentations made in connection with its statements of
Cancellation No. 92045172
17
use in the underlying applications for Registration Nos.
2845860, 2860543, 2948354, and 2948359 were fraudulent.
With regard to Registration Nos. 2970979 and 2970981,
however, we note that, in responses to HCI's requests for
admission, Xel denied that it had not used the goods in
International Class 5 identified in the notices of allowance
when it filed the statements of use in the underlying
applications for those registrations. We further note that,
in response to HCI's interrogatory in which Xel was asked to
identify each good sold under its involved marks, Xel
responded, in relevant part, that it "markets and sells
green tea related goods which have a variety of uses
including uses as antihypertension agents, diuretics,
anorexigenics, fungistatic agents, fungicidal agents,
analgesics, hormonal agents, antitussive agents, sedatives,
cardiac agents, antimicrobial and antibacterial agents,
anticancer agents, medicine filled patches, herbal dietary
supplements and vitamins...." Based on these responses, we
find, resolving any doubt in favor of Xel as the nonmovant,
that there is a genuine issue of material fact as to whether
use of the mark on "green tea related goods" constitutes use
on the "pharmaceuticals" in International Class 5 identified
in the notices of allowance at issue, and as to whether
Xel's attorney had a reasonable basis for a belief that the
marks were being used in interstate commerce on such
Cancellation No. 92045172
18
"pharmaceuticals" when Xel filed the statements of use in
the underlying applications for those registrations. See
Maids to Order of Ohio Inc. v. Maid-to-Order Inc., 78 USPQ2d
1899 (TTAB 2006). While we are inclined to doubt that use
of the marks on "green tea related goods" would constitute
use of those marks on "pharmaceuticals," that issue is one
for trial and not one for which HCI has shown a current
entitlement to judgment.
In view thereof, HCI's motion for summary judgment is
granted with regard to Registration Nos. 2845860, 2860543,
2948354, and 2948359, but denied with regard to Registration
Nos. 2970979 and 2970981. Accordingly, Registration Nos.
2845860, 2860543, 2948354, and 2948359 will be cancelled in
their entireties upon final disposition of this case.6
Proceedings herein are resumed. Discovery and testimony
periods are reset as follows.
THE PERIOD FOR DISCOVERY TO CLOSE: March 21, 2008

30-day testimony period for HCI
Plaintiff in the cancellation to close: June 19, 2008
30-day testimony period for Xel as defendant in the
Cancellation and as plaintiff in the counterclaim to close: August 18, 2008
30-day testimony period for HCI as defendant

6 The parties are reminded that our decision granting partial
summary judgment is interlocutory in nature and may not be
appealed until a final decision is rendered in the proceeding.
See Copeland's Enterprises Inc. v. CNV Inc., 887 F.2d 1065, 12
USPQ2d 1562 (Fed. Cir. 1989).

Cancellation No. 92045172
19
in the counterclaim and its rebuttal testimony
as plaintiff in the cancellation to close: October 17, 2008
15-day rebuttal testimony period for Xel as plaintiff
in the counterclaim to close: December 1, 2008
Briefs shall be due as follows:
[See Trademark rule 2.128(a)(2)].
Brief for plaintiff in the cancellation shall be due: January 30, 2009
Brief for defendant in the cancellation and as
Plaintiff in the counterclaim shall be due: March 1, 2009
Brief for defendant in the counterclaim and its reply
brief (if any) as plaintiff in the cancellation
shall be due: March 31, 2009
Reply brief (if any) for plaintiff in the
counterclaim shall be due: April 15, 2009
In each instance, a copy of the transcript of testimony
together with copies of documentary exhibits, must be served
on the adverse party within thirty days after completion of
the taking of testimony. Trademark Rule 2.l25. An oral
hearing will be set only upon request filed as provided by
Trademark Rule 2.l29.