On January 23, 2023, the Trademark Trial and Appeal Board (the “Board”) issued a harsh reminder to parties of the potential adverse consequences of ignoring their discovery obligations and failing to comply with Board discovery orders. While the Board typically affords pro se parties a bit more leeway than those represented by counsel, it reached its limit with a pro se applicant that, despite an Order directing the applicant to provide substantive responses to discovery requests, continued to serve nothing more than boilerplate objections.
Opposer LT Overseas North America, Inc. opposed registration of pro se Applicant Pickin’ Cotton Communication LLC’s application to register the mark PRINCESS ROYAL. Pickin’ Cotton failed to respond to LT Overseas’ discovery requests, forcing LT Overseas to file a motion to compel.
In response, Pickin’ Cotton served responses that consisted of little more than “boilerplate” responses and objections. After exercising its discretion to review the responses, the Board found the responses “deficient on their face,” deemed the requests for admissions admitted, and ordered Pickin’ Cotton to serve supplemental responses to the interrogatories and document requests, without objection, warning that Pickin’ Cotton’s failure to comply with the order could result in appropriate sanctions. Decision at 2-3.
The warning did not deter Pickin’ Cotton, which served supplemental responses containing the same general boilerplate objections as the original responses. Id. at 3-4. LT Overseas moved for sanctions, arguing the supplemental responses included the same type of general boilerplate objections as the original responses. Id. at 4-5. The supplemental responses also claimed that some documents were “privileged,” despite the Board previously overruling such an objection, renewed another previously overruled objection based on “proportionality,” and stated that Pickin’ Cotton would produce “nonprivileged documents … to the extent that such documents exist….” Id. at 7 (emphasis added). The supplemental document production consisted of a single one-page document.
The Board granted the sanctions motion, sustaining LT Overseas’ opposition and refusing registration of Pickin’ Cotton’s applied-for mark. In imposing this sanction, the Board relied on Trademark Rule 2.120(h)(1), which states that, if a party fails to comply with a discovery order, the Board may issue any appropriate order, including those provided for in FRCP 37(b)(2). Id. at 4. The Board acknowledged the harsh nature of its sanction but cited Pickin’ Cotton’s “distinct and obvious disregard for the Board’s discovery order” as a determining factor. Id. at 7. Pickin’ Cotton had been given multiple opportunities to cure its discovery deficiencies and, despite a Board order, provided responses that were “clearly lacking substance and  wholly inadequate.” Id.
This decision, although non-precedential, serves as a glaring reminder to parties that they should undertake efforts to comply with their discovery obligations at the outset and, if a discovery order is issued, take the necessary steps to comply with the terms and spirit of the order. Failure to do so could result in an adverse final decision.