On September 29, 2023, the Trademark Trial and Appeal Board (“TTAB” or the “Board”) issued its 28th precedential decision of the year, this time focusing on appropriate discovery submissions and procedure. RLP Ventures, LLC v. Panini America, Inc., No. 91268816 (TTAB 2023).
In June of 2020, Applicant Panini Americas, Inc. (“Panini”) applied to register the mark MOSAIC for “collectible trading cards; sports trading cards” in Class 16. In April 2021, RLP Ventures, LLC (“RLP”) filed a Notice of Opposition, notably representing itself pro se. RLP alleged a likelihood of confusion between Applicant’s MOSAIC mark and RLP’s registrations for MOSAEC for “printed instructional, educational, and teaching materials in the field of foreign languages and cross-cultural communication; fiction books on a variety of topics; non-fiction books on a variety of topics” in Class 16 and “entertainment services, namely, providing information by means of a global computer network in the fields of celebrities, entertainment, and popular culture” in Class 41.
The TTAB did not address any likelihood of confusion factors, issues of priority, or other substantive issues. Instead, the TTAB focused primarily on the evidence submitted by RLP, specifically, that much of it was erroneously submitted under seal or improperly authenticated by Notice of Reliance.
RLP submitted almost 1000 pages of trial exhibits completely under seal and did not provide the relevant public and redacted versions required by the Board. The Board noted that filing an entire document or motion under seal should be “very rare” and that only a limited number of documents filed by RLP were actually identified as confidential. The TTAB granted RLP 20 days to file redacted, public versions of all confidential submissions.
The TTAB also addressed Applicant Panini’s Motion to Strike Opposer’s Notice of Reliance as failing to comply with the Board’s procedural rules and lacking foundation or authentication. In examining the evidence, the TTAB determined that RLP “dumped into the record a large number of documents not admissible by notice of reliance,” including its own disclosures and responses to document and discovery requests. The Board sua sponte struck RLP’s Notice of Reliance while also granting leave to file a proper amended notice. In its decision, the Board discussed the importance of properly categorizing and filing evidence, especially confidential and/or self-authenticating evidence. RLP’s “document dump . . . [created] an unnecessary burden and waste of the Board’s limited resources” by assuming that it had the time to filter through hundreds of pages of evidence, some of which was duplicative, and most of which (as filed) cannot be cited in a public opinion due to the large number of documents inappropriately filed under seal.
Finally, Panini objected to a number of exhibits filed by RLP as lacking proper foundation. Considering the existing procedural delays in the case, the Board will allow RLP to supplement foundation during oral testimony by way of contemporaneous objection to the introduction of a document. The Board specifically noted that because “nearly all of Opposer’s case has been improperly submitted,” requiring RLP to file a motion to reopen to cure testimony would unnecessarily delay the proceeding.
Moral of this opposition proceeding: follow the TTAB’s procedural rules for submission of evidence, authentication, foundation, and confidentiality. This decision makes clear that the Board simply does not have the time—or patience—to fix these issues for you!