Same Day Equals Same Time on Electronic Documents, TTAB Says

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By Blake Brittain

July 28 — Two documents filed electronically on the same day are filed at the same time for procedural purposes, the Trademark Trial and Appeal Board ruled July 24.

Even though timestamps indicated that an abandonment of a trademark registration application was electronically filed five hours before an opposition to that application, the board said that it would still consider the documents to have been filed “at the same instant.”

“We shall not take cognizance of fractions of a day,” the board said, quoting from its 1978 ruling that two paper documents submitted on the same day were considered to have been filed simultaneously. The board reaffirmed that holding for electronically filed documents in its July 24 ruling.

The board said the standard it established in 1978 was still true in the age of electronic filings, which often include timestamps that show the exact time at which a document was filed.

It's About Time

3PMC LLC filed a notice of opposition to Stacy Lee Huggins' application to register the mark “Coke Head” for use on t-shirts on Dec. 31, 2014—the same day that Huggins filed an express abandonment of the application. The board had initially entered a judgment against Huggins for abandoning the application after the commencement of an opposition without the consent of the opposing party. Huggins filed a motion for relief, arguing that his request was filed earlier in the day than 3PMC's notice of opposition.

“While greater certainty regarding the timing of events may be possible in the age of electronic filing, that is not always the case given the technological limitations to which computer systems and networks are susceptible,” Administrative Trademark Judge Susan M. Richey said.

The board said its proceedings involve several different electronic filing systems that “operate and update differently,” and “it is not always possible to establish temporal sequence with certainty, even in an electronic filing environment; nor is it always true that electronic systems are immediately cognizant of all the data or documents that ultimately bear on a procedural determination of respective rights.”

The board ruled that “an opposition and an express abandonment, filed the same day, were filed at the same instant,” and concluded that “the involved application was not subject to an opposition when it was abandoned.”

The board therefore vacated the judgment against Huggins and dismissed the opposition without prejudice.

Administrative Trademark Judges Gerard F. Rogers and Jyll Taylor joined in the opinion.

Huggins was represented by Trevor P. Schmidt of Hutchison PLLC, Raleigh, N.C. 3PMC was represented by Matthew J. Schonauer of Dublin, Ohio.

To contact the reporter on this story: Blake Brittain in Washington at bbrittain@bna.com

To contact the editor responsible for this story: Tony Dutra at adutra@bna.com

Full text at http://pub.bna.com/ptcj/3pmc.pdf.