Trademark Trial and Appeal Board
Patent and Trademark Office (P.T.O.)
*1 TOWERS, PERRIN, FORSTER & CROSBY, INC.
CIRCLE CONSULTING GROUP, INC.
Cancellation No. 18,626
August 16, 1990
For Towers, Perrin, Foster & Crosby, Inc.
Dechert, Price & Rho
3400Centre Square West
1500 Market Street
Philadelphia, PA 19102
For Circle Consulting Group , Inc.
St. Onge, Steward, Johnston & Reens
986 Bedford Street
Stamford, CT 06905
Paula T. Hariston
Attorney-Examiner, Trademark Trial and Appeal Board
Petitioner, on May 14, 1990, filed a motion for a protective order pursuant to Trademark Rule 2.120(d)(1) on the ground that the interrogatories served by respondent on April 10, 1990 well exceed seventy-five. A copy of the interrogatories has been submitted with the motion. On May 29, 1990 respondent filed a cross-motion for leave to serve in excess of seventy-five interrogatories and on June 13, 1990, petitioner filed a brief in opposition to the cross-motion.
In support of its motion for a protective order, petitioner asserts that respondent has served over 250 interrogatories, counting subparts. Petitioner argues that it should not be required to answer the interrogatories. Petitioner also contends that it should not be required to respond to respondent's request for production of documents since the request asks for all documents for which identification has been requested in the interrogatories.
Respondent, in its cross-motion, contends that it should be allowed to serve in excess of seventy-five interrogatories because its interrogatories are easy to answer and because this case involves an "extremely complex fact situation." Moreover, respondent argues that there is no limit on the number of document requests a party may serve and thus its request for production of documents is clearly proper.
Petitioner, in its brief on the cross-motion, contends that many of respondent's interrogatories are improper and irrelevant, and that there has been no showing that the issues in this case are any more different or complex than those in similar cases involving the ground of likelihood of confusion.
Trademark Rule 2.120(d)(1), provides as follows:
The total number of written interrogatories which a party may serve upon another party pursuant to Rule 33 of the Federal Rules of Civil Procedure, in a proceeding, shall not exceed seventy-five, counting subparts, except that the Trademark Trial and Appeal Board, in its discretion, may allow additional interrogatories upon motion therefor showing good cause, or upon stipulation of the parties. A motion for leave to serve additional interrogatories must be accompanied by a copy of the interrogatories, if any, which have already been served by the moving party, and by a copy of the interrogatories proposed to be served. If a party upon which interrogatories have been served believes that the number of interrogatories served exceeds the limitation specified in this paragraph, 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 which together are said to exceed the limitation.
*2 In this case, applying the guidelines set forth in Brawn of California, Inc. v. Bourie Sportswear, Ltd., Opp. No. 80,272, slip op., ___ U.S.P.Q.2d ___, (TTAB June 6, 1990), the Board finds that respondent's interrogatories exceed seventy-five. Respondent has not argued otherwise, but rather has filed a cross-motion for leave to serve in excess of seventy-five interrogatories.
However, respondent's cross-motion for leave to serve in excess of seventy-five interrogatories is not considered a proper response to petitioner's motion for a protective order. Rather, Rule 2.120(d)(1) clearly contemplates that a motion for leave to serve in excess of seventy-five interrogatories should be filed prior to service of the proposed interrogatories. See: Brawn of California, Inc. v. Bourie Sportswear, Ltd., supra. Even if we were to consider respondent's arguments in its cross-motion we would not be inclined to allow the interrogatories. We do not believe that the issues in this case are so complex that more than seventy-five interrogatories are necessary. Further, the fact that a party's interrogatories may be easy to answer does not, in and of itself, constitute good cause for additional interrogatories under Rule 2.120(d)(1). As to respondent's production requests, it was not unreasonable for petitioner to refuse to respond to said requests since petitioner could not respond to them without first answering the excessive interrogatories.
In view of the foregoing, petitioner's motion for a protective order is granted. Petitioner is relieved of answering respondent's interrogatories and request for production of documents served April 10, 1990.
Respondent is allowed until September 14, 1990 to serve a revised set of interrogatories and production requests. Respondent is advised to separate its reformulated interrogatories from its reformulated document request. See Procter & Gamble Co. v. Keystone Automotive Warehouse, Inc., 191 USPQ 468, 471 (TTAB 1976).
The answer filed by respondent on May 16, 1990 is noted. Trial dates, including the period for discovery, are scheduled in the accompanying trial order.