*1 BRAWN OF CALIFORNIA, INC.
BONNIE SPORTSWEAR, LTD.
Opposition No. 80,272
June 6, 1990
For Brawn of California, Inc.
Neil F. Martin
Brown, Martin, Haller & McClain
Howard C. Miskin for Bonnie Sportswear, Ltd.
Attorney-Examiner, Trademark Trial and Appeal Board
Opposer, on March 27, 1990, filed a motion for a protective order pursuant to Trademark Rule 2.120(d)(1) on the ground that the interrogatories served by applicant on February 20, 1990 substantially exceeded seventy-five and that opposer is not willing to waive its objection. Opposer states that in accordance with the Trademark Rules of Practice, opposer answered the first seventy-five interrogatories, counting subparts, and that opposer has objected to and filed a motion for a protective order with respect to the remainder.
Applicant, on April 16, 1990, has filed a response to opposer's motion arguing that opposer, on the same day it filed its motion for a protective order, served upon applicant a set of interrogatories replete with compound and conjunctive questions that also exceeded the limits of the rule; that applicant has answered opposer's discovery requests and that therefore opposer should be required to answer applicant's. Alternatively, applicant requests that it be granted leave to propound the excessive interrogatories inasmuch as they are relevant to the issues of the proceeding. In support of its motion, applicant has attached an exhibit which consists of applicant's breakdown of the compound interrogatories that have been served on applicant.
Under amended Trademark Rule 2.120(d)(1), effective November 10, 1989, the total number of written interrogatories which a party may serve upon another party in a proceeding before the Board shall not exceed seventy-five, counting subparts, except upon motion by a party for additional interrogatories. This rule requires that a motion for leave to serve additional interrogatories be filed "together with the interrogatories proposed to be served." (Emphasis added.) If a party upon which interrogatories have been served believes that the number of interrogatories served exceeds the limitation and is not willing to waive this basis for objection, the party shall, within the time for (and instead of) serving answers and objections to the interrogatories, file a motion for a protective order, accompanied by a copy of the interrogatories. See, The Chicago Corporation v. North American Chicago Corp., Opp. No. 80998, slip op. (TTAB May 18, 1990).
In determining whether a set of interrogatories exceeds the limit of the rule, each subdivision of separate questions, whether set forth as a numbered or lettered subpart, or as a compound question or a conjunctive question, is counted as a separate interrogatory.
Opposer asserts that applicant's interrogatories number over 171, counting the subparts, and there is no question that applicant's interrogatories exceed substantially the limitation of the rule. Opposer's interrogatories also appear to exceed the limitation of the rule, although that question is not before us. Applicant waived its right to object to opposer's interrogatories by failing to file a motion for protective order. That opposer, in a good faith attempt to comply with the limits of the rule, served upon applicant a set of interrogatories that exceeds those limits does not estop opposer from arguing that applicant's interrogatories are excessive. Accordingly, opposer was acting within the provisions of Trademark Rule 2.120(d)(1) when it elected to file a motion for protective order.
*2 In this regard, however, opposer should note that Trademark Rule 2.120(d)(1) provides that if a party upon which interrogatories have been served believes that the number of interrogatories served exceeds the limits of the rule, the party shall, within the time for and instead of, answering or objecting to the interrogatories, file a motion for a protective order. (Emphasis added.) This does not mean that opposer should answer what it considers to be the first seventy-five interrogatories and file a motion for a protective order as to the remainder. A party which has served a set of interrogatories containing an excessive number will be given an opportunity to serve a revised set of interrogatories that complies with the rule. Accordingly, a motion for a protective order should be filed as to the entire set of interrogatories believed to contain the excessive number.
This brings us now to applicant's alternate request, in essence, that we allow it leave to propound the excessive interrogatories. Trademark Rule 2.120(d)(1) provides that a motion for leave to serve additional interrogatories must be accompanied by, inter alia, "a copy of the interrogatories proposed to be served." (Emphasis added.) The rule thereby contemplates that a request for leave to serve additional or excessive interrogatories will be filed prior to the service of the excessive interrogatories, not after a motion for a protective order has been filed. In any event, that the excessive interrogatories are relevant to the issues of the proceeding does not constitute good cause for granting a request for dispensation from the limits of the rule.
In view of the above, opposer's motion for a protective order is granted and applicant's cross-motion for leave to propound additional interrogatories is denied. Opposer is relieved from answering applicant's interrogatories served February 20, 1990. Applicant is allowed until the close of discovery on June 13, 1990 to serve a revised set of interrogatories in their stead, not to exceed seventy-five in number, counting subparts.
Inasmuch as opposer improperly provided answers to applicant's interrogatories, applicant may not introduce these answers as evidence by way of notice of reliance during applicant's testimony period. However, applicant may rely upon opposer's answers to the interrogatories to be served in compliance with this order.
Trial dates, including the period for discovery, are rescheduled as set forth in the consented motion for an extension of time filed by the parties on May 17, 1990, which is hereby approved and entered.