Think an undefended opposition proceeding is a slam dunk, then you better think again. In Emminence, LLC v. Lisa Kelly, Opposition No. 91205286 (October 8, 2014), the Trademark Trial and Appeal Board dismissed an opposition proceeding even though the defendant did not offer any evidence or even a trial brief in support of her case. Even though Ms. Kelly clearly demonstrated her intention to not defend herself in the opposition proceeding, the Board found that the plaintiff failed to offer sufficient evidence of the relatedness of the goods, so the opposition was dismissed.
If a plaintiff fails to prosecute an opposition proceeding, a defendant can move for a directed verdict at the close of the plaintiffs testimony period. However, no similar motion exists for a plaintiff against a defendant that chooses not to defend itself.
In one sense, the lack of a motion could be a useful strategy against a trademark bully. The party that is bullied can choose as a strategy to not engage the bully in the proceeding and allow the Board to do the bullied party’s bidding. Giving up control like this may not be ideal, but is a cheap strategy.
However, the likelihood of using such a strategy is low and should not justify the absence of a motion for a directed verdict for a plaintiff in an opposition proceeding. The more likely situation is a defendant that has no interest in defending its right to a registration, yet unjustifiably increases the cost of litigation to the plaintiff by not defending itself after filing a bare bones answer.