Fed up with pro se Applicant Pickin' Cotton's antics, the Board granted a motion for entry of judgment as a sanction for the applicant's "deliberate failure to comply with the Board's discovery order and to make the requisite effort to satisfy Opposer's discovery needs." The Board concluded that "any sanction less than judgment is likely to be ineffective and this futile." LT Overseas North America, Inc. v. Pickin' Cotton Communications, LLC, Opposition No. 91267259 (January 23, 2023) [not precedential].
Opposer LT Overseas relied on its registered ROYAL marks for various food products, in opposing registration of the mark PRINCESS ROYAL for seasonings and spices, on the ground of likelihood of confusion. Applicant Pickin' Cotton did not respond to the LT's initial discovery demands, and so LT filed a motion to compel. In response to the motion, Pickin' Cotton provided responses, of sorts.
The Board exercised its discretion to review those responses and found them to be "deficient on their face." They consisted of "boilerplate" responses and objections, and failed to state whether Pickin' Cotton was withholding any documents. The Board ordered Pickin' Cotton to serve supplemental responses, warning that failure to comply could result in appropriate sanctions.
When it received the supplemental responses, LT moved for the sanction of judgment on the basis that the supplemental discovery responses contained the same type of general boilerplate objections as the original responses, claimed that some documents were "privileged" even though the Board had overruled such an objection, renewed an already-overruled objection on the ground of "proportionality," and impermissibly stated that Pickin' Cotton would produce "nonprivileged documents ... to the extent that such documents exists [sic], are within Applicant's possession, custody or control, and are located after a reasonable search." The supplemental document production consisted of a one-page document of questionable authenticity.
Trademark Rule 2.120(h)(1) states that when a party fails to comply with a discovery order, the Board may issue any appropriate order, including those provided in FRCP 37(b)(2). The Board noted that entry of judgment is a "harsh sanction," but it found Pickin' Cotton's responses to be "incomplete, truncated and non-responsive." In fact, "the supplemental responses are remarkably ambiguous to the point of providing no responsive information."
Pickin' Cotton's supplemental responses to LT's 44 production requests included another set of boilerplate objections along with the evasive and unacceptable languages set out above. The Board found the responses to be "lacking in substance" and "wholly inadequate." "More to the point, the responses reflect a distinct and obvious disregard for the Board's discovery order."
The one-page document was insufficient on its face. It is "exceedingly brief" and "merely lists enumerated phrases that lack detail and substantive context, and is not associated or correlated with any specific document requests." It is "so lacking in content and so ambiguous, evasive and cryptic as to be non-responsive." Although Pickin' Cotton repeatedly referred to its "business plan," no such document was provided.
The Board noted that this is an uncomplicated Section 2(d) opposition. Nothing in the record indicated that "the seasonings and spices business is of such a nature that would preclude timely and fully responding to straightforward, typical inquiries regarding matters such as creation of the applied-for mark, the goods, channels of trade and distribution, and marketing."
And so, the Board entered judgment against applicant, sustaining the opposition.
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