On July 24, 2015, the TTAB ruled that, for procedural purposes, two documents filed on the same day are considered to have been filed at the same instant.
Stacy Lee Huggins filed his application for the mark COKE HEAD, in standard characters, for tee shirts in September 2014. On December 31, 2014, 3PMC, LLC filed an application to register the same mark for the same goods, as well as a notice of opposition to Mr. Huggins’s mark; the Board’s electronic filing system, ESTTA, automatically instituted the opposition proceeding. However, on that same day, Mr. Huggins filed an express abandonment of his application through TEAS, the electronic filing system of the Trademark Examining Operation. In February 2015, the Board entered judgment against Mr. Huggins under Trademark Rule 2.135 for abandoning his application after the commencement of an opposition without the express consent of the opposing party.
Mr. Huggins moved for relief from the judgment, arguing that the opposition should have been dismissed without prejudice because his abandonment was filed five hours before 3PMC’s notice of opposition and, therefore, no opposition had been “commenced.” To support his argument, Mr. Huggins supplied a copy of his abandonment that was time-stamped by the USPTO’s TEAS system at 09:10:24 EST. Though the notice of opposition did not bear a time stamp, 3PMC’s application to register its mark was time stamped at 14:35:30.
The Board granted Mr. Huggins’s motion, holding that it “shall not take cognizance of fractions of a day.” Instead, an opposition and an abandonment filed on the same day are assumed to have been filed at the same instant. Therefore, because Mr. Huggins’s application was not subject to an opposition, Trademark Rule 2.135 did not apply.
The Board explained that even in the age of electronic filing, computer systems and networks are susceptible to limitations that make fixing the timing of events difficult. In this case, the Board’s ESTTA system is separate from the USPTO’s TEAS system and thus the ESTTA system is not equipped to draw a conclusion about whether an application may be subject to an opposition, except based on the data it accesses automatically from the USPTO’s internal system known as TRAM. As TRAM is not updated continuously and instantaneously, it might not have reflected Mr. Huggins’s abandonment had it been filed, but not yet uploaded and processed.
The Board rejected 3PMC’s argument that it would be prejudiced by this ruling. The only prejudice 3PMC identified was that it might be subject to opposition or cancellation proceedings by Mr. Huggins “down the road” and would be forced to monitor Mr. Huggins’s activities at the USPTO for an undetermined period of time. But, as is true for any business, this is merely the cost of pursuing trademark registration. Dismissing 3PMC’s opposition without prejudice, the Board stated its rule is “simply an order of precedence adopted by the Board for purposes of managing its own docket.”