Precedential No. 25: TTAB Applicant's 41-Page ACR Brief Stricken As Too Long, But Re-Filing Of 25-Page Brief Allowed

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For some reason, the Board has re-designated as precedential an interlocutory order in this Section 2(d) opposition involving an application to register the mark RASASVADA for alcohol and spirits.

United States Intellectual Property

For some reason, the Board has re-designated as precedential an interlocutory order in this Section 2(d) opposition involving an application to register the mark RASASVADA for alcohol and spirits. The Board had accepted the parties' stipulation to proceed under the Accelerated Case Resolution (ACR) regime. Facing the Board was the question of whether the normal 55-page final brief limit applied, or whether the summary judgment limit of 25 pages applied, since the parties had stipulated to submission of the case "through ACR briefing in a cross-motion for summary judgment format." The Board said "25." Rasa Vineyards, LLC v. Rasasvada, LLC, Opposition No. 91268532 (May 9, 2022, re-designated as precedential, August 17, 2022) (Order by Interlocutory Attorney Catherine Faint)

When Applicant filed a 41-page brief (including table of contents), Opposer Rosa Vineyards moved to strike, requesting that applicant be required to re-submit a brief that satisfied the 25-page limit of Rule 2.127(a) for summary judgment briefing. Applicant argued that the stipulation regarding ACR did not recite a page limit, and that Rule 2.128(b) should govern. The Board sided with Rosa Vineyards.

The parties clearly stipulated to submission of their briefs in summary judgment format and the page limits of a motion for summary judgment apply. Applicant's brief exceeds the 25 page limit including a table of contents and will therefore receive no consideration. See Mattel Inc. v. Brainy Baby Co., 101 USPQ2d 1140, 1141. (TTAB 2011) (overlength brief on motion for summary judgment will not be considered). In view thereof, Opposer's motion to strike Applicant's brief as overlength is granted and the brief will receive no consideration.

The Board, however, allowed Applicant one day to re-submit a brief limited to 25 pages, and applicant did so. [One day? - ed.]

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TTABlogger comment: Note that the parties also stipulated that motions could be resolved by telephone conference, without suspension of the proceeding.

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