Recently, parties to a Trademark Trial and Appeal Board Opposition learned a hard lesson.  In Lumber Liquidators Services, LLC v. Columbia Insurance Company, (decision here) Opposer, Lumber Liquidator Services, filed a motion for summary judgment on July 5, 2021 that was actually due on July 2, 2021 after misapplying Trademark Rule 2.196.

A motion for summary judgment before the TTAB must be filed the day before the deadline to serve pretrial disclosures.  Here, pretrial disclosures were due on July 3, 2021, a Saturday.  In filing on July 5, 2021 instead, Opposer relied on Trademark Rule 2.196, 37 C.F.R. § 2.196, which allows parties to take an “action” on the day following a weekend or federal holiday if “the day, or the last day fixed by statute or regulation” for that action falls on a Saturday, Sunday or federal holiday. 

Opposer reasoned that because July 3, 2021 was a Saturday, and July 5, 2021 was a federally observed holiday, then pretrial disclosures were actually due on July 6, 2021.  However, Opposer’s motion was untimely because Trademark Rule 2.196 did not make the pretrial disclosures due on July 6.

You see, Trademark Rule 2.196 does not make something due the day following a weekend or federal holiday.  All Trademark Rule 2.196 does is allow a party (in a TTAB proceeding or in any other part of the trademark prosecution process) to take an action the day after a weekend or federal holiday as though that action had been taken on the due date.  In the Board’s own words, “the action that was required to be taken by that date – Opposer’s service of its pretrial disclosures – would be considered timely if service were made on the next succeeding business day, Tuesday, July 6, 2021.”  (emphasis in original).  Because Trademark Rule 2.196 did not change the due date for pretrial disclosures, it follows that the due date for a motion for summary judgment remained unchanged as well. 

In fact, the Board had previously dealt with variations on this theme.  In Asustek Comput. Inc. v. Chengdu Westhouse Interactive Entm’t. Co., 128 U.S.P.Q.2d 1470 (T.T.A.B. 2018), the Board considered the analogous issue of whether opposer’s motion to compel, also due the day before pretrial disclosures, was timely filed.  In Asustek, opposer filed their motion to compel on Monday, September 25, 2017, which was the day pretrial disclosures were due, reasoning that Trademark Rule 2.196 allowed them to file on a Monday since the deadline was a Sunday.  There, the Board found the motion untimely, explaining that the rule regarding the filing of a motion to compel “does not fix a particular day by which a motion to compel must be filed, but instead ensures that the motion be filed before the day of another event (pretrial disclosures) occurs.” 

The Board’s decision should not come as a surprise given that the first sentence of Trademark Rule 2.196 reads: “Whenever periods of time are specified in this part in days, calendar days are intended.”  But, as humans, it’s sometimes easier to internalize the exception rather than the rule, especially when it involves a day off.  Unfortunately, there are no second chances here, so double check those dockets and make sure you file before the long weekend.