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The Philadelphia Phillies, a Major League Baseball franchise that is opposing applications for “Greenphly” and “Teamphly” for insurance services, do not have to respond to requests for admissions concerning the team's licensing practices with respect to registrations that were not asserted in the team's Section 2(d) opposition, the Trademark Trial and Appeal Board held Aug. 19 (The Phillies v. Phila. Consol. Holding Corp., T.T.A.B., No. 91199364, 8/19/13)
The board accordingly granted in part the team's motion for a protective order. However, the board determined that the team must respond to all questions related to the 26 marks that were identified in the team's broad opposition filed under Section 2(d) of the Lanham Act, 15 U.S.C. §1052(d).
The applicant served a total of 507 requests for admission on the Phillies. The team admitted that some of the questions were likely relevant to determine whether the team had common law rights in marks that it alleged would be infringed if the applicant's marks were registered, but it argued that it would be too burdensome to respond to all of the queries. The board agreed, to an extent.
As an initial matter, the board determined that the request for 507 admissions was not per se oppressive or unreasonable--the standard for issuing a protective order under Fed. R. Civ. P. 26(c)(1)--in this case precisely because the Phillies drafted their Section 2(d) opposition so broadly. Indeed, “in this case opposer has pleaded at least twenty-six marks, many of them cumulative and repetitive, as bases for its Section 2(d) claim and applicant's requests for admission seek thirty-two admissions or denials for each of only fourteen of opposer's pleaded mark,” the board said.
However, the board noted that some of the questions were directed at registrations that the Phillies had not asserted in the Section 2(d) opposition. The board thus granted a limited protective order, requiring that the Phillies respond only to requests for licensing information with respect to the 26 marks that it asserted.
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