Super Bakery, Incorporatedv.Ward E. Benedict

Trademark Trial and Appeal Board

Aug 18, 2009

No. 92047859 (T.T.A.B. Aug. 18, 2009)

Mailed: August 18, 2009

Cancellation No. 92047859

Super Bakery, Incorporated

v.

Ward E. Benedict

Before Bucher, Drost, Mermelstein,
Administrative Trademark Judges.

By the Board:

This case now comes up for consideration of (1)
respondent’s motion (filed March 12, 20091) for summary
judgment in his favor and (2) petitioner’s motion (filed
April 16, 2009) for discovery sanctions in the form of
judgment for respondent’s failure to comply with a Board
order compelling responses to petitioner’s discovery
requests. The parties have filed a brief in response to
each respective motion.2
We first consider petitioner’s motion for sanctions.
By way of background, on April 22, 2008, petitioner
filed a combined motion to compel discovery responses and

1 We note that the first copy of the motion filed by respondent
on March 10, 2009, failed to indicate proof of service on
petitioner.
2 While respondent’s response to the motion for discovery
sanctions is untimely and unsigned, we have, in an effort to
avoid further delay, elected to consider it.
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
P.O. Box 1451
Alexandria, VA 22313-1451
Cancellation No. 92047859
2
request for suspension. No response to the motion having
been filed, the Board issued an order on June 24, 2008
granting the motion to compel as conceded. Pursuant to the
order, respondent was allowed thirty days from June 24, 2008
to serve full and complete responses without objection to
petitioner’s first and second sets of interrogatories and
first and second sets of production of documents. On August
4, 2008, petitioner filed a motion for default judgment as a
sanction for respondent’s failure to comply with the Board’s
June 24, 2008 order. By its opposition to the motion, on
August 22, 2008 (almost two months after the Board issued
its order compelling discovery) respondent filed a request
for reconsideration of the Board’s order of June 24, 2008.
On February 11, 2009, the Board issued an order denying
respondent’s motion for reconsideration. In such order, the
Board also found that while sanctions against respondent for
failing to comply with the Board’s order of June 24, 2008
were warranted, an entry of judgment was unwarranted at the
time. Respondent was ordered to provide full and complete
responses to petitioner’s discovery requests without
objection within thirty days (by March 13, 2009).3
Thereafter, petitioner filed this motion for discovery
sanctions based upon respondent’s alleged failure to comply

3 The Board’s order of February 11, 2009 further noted that
petitioner’s requests for admissions are deemed admitted pursuant
to Fed. R. Civ. P. 36(a)(3).
Cancellation No. 92047859
3
fully and completely with the Board’s February 11, 2009
order. In its motion, petitioner asserts that respondent
has yet to serve any responses to its discovery requests.
In consequence thereof, petitioner requests that the Board
issue an order entering judgment against respondent under
Trademark Rule 2.120(g).
A motion for sanctions under Trademark Rule 2.120(g)
lies when the Board has entered an order relating to
discovery and the order has been violated. See Trademark
Board Manual of Procedure (TBMP) § 527 and the authorities
cited therein. Trademark Rule 2.120(g) provides, in
relevant part, that if a party fails to comply with an order
of the Board relating to discovery, the Board may make any
appropriate order, including the entry of default judgment
as provided in Fed. R. Civ. P. 37(b).
In this instance, respondent has made absolutely no
response to the discovery requests served by petitioner
nearly twenty months ago.4 Nor has respondent provided a
reason for his failure to comply with the February 11, 2009
order compelling discovery. We note that in responding to
the present motion, respondent has failed to make even
casual reference to the outstanding discovery requests.
Rather, respondent seems to assert that petitioner’s motion

4 Petitioner served its first set of discovery requests on
January 16, 2008 and its second set of discovery requests on
February 8, 2008.
Cancellation No. 92047859
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for sanctions is simply another attempt by petitioner at
renewing its August 4, 2008 motion for default judgment “in
the hope of obtaining a better outcome...than Petitioner was
able to obtain the first time around.” We also note that
respondent, in a likely effort to avoid his discovery
responsibilities once again, filed his motion for summary
judgment just days before the expiration of his time to
respond to the petitioner’s discovery requests as directed
in the Board’s February 11, 2009 order.5 With respect to
petitioner’s discovery requests, it is clear that respondent
has not complied with the Trademark Rules or the Board’s
orders in any sense. In the absence of any excuse or reason
by respondent explaining or mitigating its failure to
comply, the Board is left with no basis for continuing with
this proceeding.
Accordingly, petitioner’s motion is hereby granted and
judgment by default is entered against respondent.
Respondent’s motion for summary judgment is denied as moot.
Registration No. 2966225 will be cancelled in due
course.

5 Proceedings herein were not suspended until March 30, 2009.