TTAB Decisions and Developments
Jane Shay Wald
Irell & Manella LLP
When Discovery’s Served And You Say You’ll Reply But Instead Serve A Motion For Summary J You Won’t Get Away With Sandbagging, Wise Guy As The Board Will Have Something Unpleasant To Say
The Board granted Respondent’s motion for discovery under Federal Rule of Civil Procedure56(d), finding that Petitioner’s timing of its Motion for Summary Judgment was an abuse of the discovery process. The rule provides that "if a party served with a motion for summary judgment shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order." Respondent maintained that, to respond to Petitioner’s motion for summary judgment, it required discovery as to Petitioner’s priority and certain facts going to likelihood of confusion.