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as evidence of use on behalf of the party who filed them, unless identified and introduced in evidence as other exhibits.

2.127 Motions. (a) Motions shall be made in writing and shall contain a full statement of the grounds therefor. Any brief or memorandum in support of a motion shall accompany or be embodied in the motion. Briefs in opposition to a motion shall be filed within fifteen days from the date of service of the motion unless another time is specified by the Trademark Trial and Appeal Board or the time is extended on request. Oral hearings will not be held on motions except on order of the Trademark Trial and Appeal Board.

(b) Any petition for reconsideration or modification of a decision, if it is not appealable, must be filed within ten days after the decision or, if the decision is appealable, within the time specified in rule 2.129 (c).

(c) Interlocutory motions, requests, and other matters not finally determinative in the proceeding may be acted upon by a member of the Trademark Trial and Appeal Board.

2.128 Final hearing and briefs. (a) The brief of a party in the position of plaintiff shall be filed not later than sixty days after the closing date set for rebuttal testimony; the brief of a party in the position of defendant not later than thirty days after the due date of the first brief; a reply brief by a party in the position of plaintiff, if filed, shall be due fifteen days after the due date of the brief to which it is a reply. Three copies of all briefs should be filed.

(b) Briefs may be submitted in typewritten or printed form, except that where they are in excess of thirty typewritten pages, they shall be printed in conformity with rule 1.254 of this chapter. Typewritten briefs may be written on letter or legal size paper and shall be double-spaced. Each brief shall contain an alphabetical index of cases cited therein.

NOTE: Patent Rule 254 reads as follows:

1.254. BRIEFS AT FINAL HEARING. Briefs at final hearing before the Board of Patent Interferences shall be submitted in printed form, except that when not in excess of fifty legal-size double spaced typewritten pages, or the equivalent thereof and in any other case where satisfactory reason therefor is shown, they may be submitted in typewritten form. If submitted in printed form, they shall be the same in size and the same as to page and print as is specified for printed copies of testimony. Typewritten briefs shall conform to the requirements for typewritten copies of testimony, except that legal size paper may be used and the binding and covers specified are not required. Three copies of each brief must be filed. Unless other dates are set by an examiner of interferences, the brief of the junior party or parties shall be filed not less than forty days, and that of the senior party not less than twenty days prior to the hearing. Reply briefs, if filed, shall be due not less than ten days before the hearing.

(c) If a party desires an oral hearing, he should so state by a separate notice filed not later than ten days after the due date of the reply brief of the party in position of plaintiff, and the time for such hear

ing will be set in a notice sent to each party by the Office. If no request for oral hearing is made, the case will be decided on the record and briefs.

2.129 Oral argument. (a) Oral arguments will be heard by at least three members of the Trademark Trial and Appeal Board at the time stated in the notice. If any party appears at the specified time, he will be heard. If the Board is prevented from hearing the case at the time specified, a new assignment will be made, or the case will be continued from day to day until heard. Unless otherwise permitted, oral arguments will be limited to one-half hour for each party.

(b) Hearings may be advanced or adjourned, as far as is convenient and proper, to meet the wishes of the parties and their attorneys or agents.

(c) Any petition for rehearing, reconsideration, or modification of a decision must be filed within thirty days from the date thereof. 2.130 New matter suggested by Examiner of Trademarks. If, during the pendency of an inter partes case, facts appear which, in the opinion of the Examiner of Trademarks, render the mark of any applicant involved unregistrable, the attention of the Trademark Trial and Appeal Board shall be called thereto. The Board may suspend the proceeding and refer the application to the Examiner of Trademarks for his determination of the question of registrability, following the final determination of which the application shall be returned to the Board for such further inter partes action as may be appropriate. The consideration of such facts by the Examiner of Trademarks shall be ex parte, but a copy of the action of the Examiner will be furnished to the parties to the inter partes proceeding.

2.131 Ex parte matter in an inter partes case. If, in considering an inter partes case involving an application, facts appear which, in the opinion of the Trademark Trial and Appeal Board, render the mark of the applicant unregistrable on one or more ex parte grounds, the Board shall in its decision on the inter partes issues in the case recommend that if the applicant finally prevails in the case, registration be withheld pending a re-examination by the Examiner of Trademarks of the application in the light of such facts. If, upon such re-examination following termination of the inter partes case, the Examiner of Trademarks finally refuses registration to applicant, appeal may be taken as provided in rules 2.141 and 2.142.

2.132 Failure to take testimony. (a) Upon the filing of a statement by any party in the position of defendant, that the time for taking testimony on behalf of any party in the position of plaintiff has expired and that no testimony has been taken by him and no other evidence offered, an order may be entered that such party show cause within a time set therein, not less than ten days, why judgment should not be rendered against him, and in the absence of a showing

of good and sufficient cause judgment may be rendered as by default.

(b) If no evidence other than Patent Office records is offered by the party in the position of plaintiff, any party in position of defendant, without waiving his right to offer evidence in the event the motion is denied, may move for dismissal on the ground that upon the law and the facts the party in the position of plaintiff has shown no right to relief. The party in the position of plaintiff shall be allowed fifteen days after service of the motion to file his argument in opposition to the motion. Judgment may be rendered against the party in position of plaintiff, or the Trademark Trial and Appeal Board may decline to render judgment until all the evidence is in. In the latter event, testimony periods will be reset for the party in position of defendant and for rebuttal.

2.133 Amendment of application or registration during proceedings. An application involved in a proceeding may not be amended, in substance nor may a registration be amended or disclaimed in part, except with the consent of the other party or parties and the approval of the Trademark Trial and Appeal Board, or except upon motion. 2.134 Surrender or cancellation of registration. If a registrant involved in a proceeding applies to cancel his registration under section 7(d) of the act without first obtaining the written consent thereto of the adverse party, judgment shall be entered against him.

2.135 Abandonment of application or mark. If, in a proceeding an applicant files a written abandonment of the application or of the mark without the consent thereto of the adverse party, judgment shall be entered against such applicant.

2.136 Status of application on termination of proceeding. On termination of a proceeding involving an application, the application, if the judgment is not adverse, returns to the status it had before the institution of the proceeding. If the judgment is adverse to the applicant, the application stands refused without further action and all proceedings thereon are considered terminated.

APPEALS

2.141 Ex parte appeals from the Examiner of Trademarks. Every applicant for the registration of a mark may, upon final refusal by the Examiner of Trademarks, appeal to the Trademark Trial and Appeal Board upon payment of the prescribed fee. A second refusal on the same grounds may be considered as final by the applicant for purpose of appeal.

2.142 Time and manner of ex parte appeals. (a) Such appeal must be taken within six months from the date of final refusal or from the date of the action from which appeal is taken. Appeal is taken simply by filing a notice of appeal and payment of the appeal fee.

(b) The appellant's brief shall be filed within sixty days after the date of appeal. If the brief is not filed within the time allowed, the appeal may be dismissed. The Examiner may, within such time as may be directed by the Commissioner, furnish a written statement in answer to appellant's brief, supplying a copy to the appellant. The appellant may file a reply brief within twenty days from the date of such answer.

(c) If the appellant desires an oral hearing, he should so state by a separate notice filed not later than his brief; and due notice of the time for such hearing will be given. Oral argument will be limited to one-half hour unless otherwise permitted. If no request for oral hearing is made, the appeal will be considered on brief.

(d) Applications which have been considered and decided on appeal will not be reopened except by order of the Commissioner, and then only for consideration of matters not already adjudicated, sufficient cause being shown.

2.144 Reconsideration of decision on appeal. Any request or petition for rehearing or reconsideration, or modification of the decision, must be filed within thirty days from the date of the decision. 2.145 Appeal to court and civil action.

(a) Appeal to U.S. Court of Customs and Patent Appeals. An applicant for registration, or any party to an interference, opposition, or cancellation proceeding or any party to an application to register as a concurrent user, hereinafter referred to as inter partes proceedings, who is dissatisfied with the decision of the Trademark Trial and Appeal Board and any registrant who has filed and affidavit under section 8 of the act or who has filed an application for renewal and is dissatisfied with the decision of the Commissioner (rules 2.165, 2.184), may appeal to the United States Court of Customs and Patent Appeals. The appellant must take the following steps in such an appeal: (1) In the Patent Office give notice to the Commissioner and file the reasons of appeal (see subsections (b) and (d)); (2) in the court, file a petition of appeal and a certified transcript of the record within a specified time after filing the reasons of appeal, and pay the fee for appeal, as provided by the rules of the court. The transcript will be transmitted to the court by the Patent Office on order of and at the expense of the appellant.

(b) Notice and reasons of appeal. (1) When an appeal is taken to the U.S. Court of Customs and Patent Appeals, the appellant shall give notice thereof to the Commissioner, and file in the Patent Office, within the time specified in subsection (d), his reasons of appeal specifically set forth in writing.

(2) In inter partes proceedings, the notice and reasons must be served as provided in rule 2.119.

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(c) Civil action. (1) Any person who may appeal to the U.S. Court of Customs and Patent Appeals (subsection (a)), may have remedy by civil action under section 21(b) of the act. Such civil action must be commenced within the time specified in subsection (d).

(2) If an applicant or registrant in an ex parte case has taken an appeal to the U.S. Court of Customs and Patent Appeals, he thereby waives his right to proceed under section 21 (b) of the act.

(3) If a party to an inter partes proceeding has taken an appeal to the U.S. Court of Customs and Patent Appeals, and any adverse party to the case shall, within twenty days after the appellant shall have filed notice of the appeal to the court (subsection (b)), file notice with the Commissioner that he elects to have all further proceedings conducted as provided in section 21(b) of the act, certified copies of such notices will be transmitted to the U.S. Court of Customs and Patent Appeals for such action as may be necessary. The notice of election must be served as provided in rule 2.119.

(d) Time for appeal or civil action. The time for filing the notice and reasons of appeal to the U.S. Court of Customs and Patent Appeals (subsection (b)) or for commencing a civil action (subsection (c)) is sixty days from the date of the decision of the Trademark Trial and Appeal Board or the Commissioner, as the case may be. If a petition for rehearing or reconsideration is filed within thirty days after the date of the decision, the time is extended to thirty days after action on the petition. No petition for rehearing or reconsideration filed outside the time specified herein after such decision, nor any proceedings on such petition shall operate to extend the period of sixty days hereinabove provided. The times specified herein are calendar days. If the last day of time specified for appeal, or commencing a civil action falls on a Saturday, Sunday or legal holiday, the time is extended to the next day which is neither a Saturday, Sunday nor a holiday. If a party to an inter partes proceeding has taken an appeal to the U.S. Court of Customs and Patent Appeals and an adverse party has filed notice under section 21(a) (1) of the act that he elects to have all further proceedings conducted under section 21(b) of the act, the time for filing a civil action thereafter is specified in section 21 (a) (1) of the act.

PETITIONS AND ACTION BY THE COMMISSIONER

2.146 Petition to the Commissioner. (a) Petition may be taken to the Commissioner (1) from any repeated action or requirement of the Examiner of Trademarks, not subject to appeal under rule 2.141, in the ex parte prosecution of an application; (2) in cases in which the statute or the rules specify that the matter is to be determined

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