Case: 20-1406 Document: 88 Page: 1 Filed: 09/16/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ALBERTO SOLAR SOMOHANO,
Appellant
v.
THE COCA-COLA COMPANY,
Appellee
UNITED STATES,
Intervenor
______________________
2020-1406
______________________
Appeal from the United States Patent and Trademark
Office, Trademark Trial and Appeal Board in No.
91250956.
______________________
Decided: September 16, 2021
______________________
ALBERTO SOLAR SOMOHANO, Miami, FL, pro se.
JOHN C. RAWLS, Baker Williams Matthiesen LLP, Hou-
ston, TX, for appellee. Also represented by SARAH ANNE
SILBERT.
JENNIFER UTRECHT, Appellate Staff, Civil Division,
Case: 20-1406 Document: 88 Page: 2 Filed: 09/16/2021
2 SOLAR SOMOHANO v. COCA-COLA COMPANY
United States Department of Justice, Washington, DC, for
intervenor. Also represented by BRIAN M. BOYNTON, SCOTT
R. MCINTOSH, MELISSA N. PATTERSON; THOMAS L.
CASAGRANDE, CHRISTINA J. HIEBER, THOMAS W. KRAUSE,
FARHEENA YASMEEN RASHEED, Office of the Solicitor,
United States Patent and Trademark Office, Alexandria,
VA.
______________________
Before REYNA, HUGHES, and STOLL, Circuit Judges.
REYNA, Circuit Judge.
Appellant Alberto Solar Somohano challenges a deci-
sion by the Trademark Trial and Appeal Board granting
Appellee The Coca-Cola Company’s unopposed motion to
dismiss. For the following reasons, we affirm.
BACKGROUND
On September 17, 2019, Appellant filed a Notice of Op-
position before the Trademark Trial and Appeal Board, op-
posing an application by Coca-Cola to register the
trademark “COCA-COLA ENERGY” on the Principal Reg-
ister. J.A. 43–60; see U.S. Trademark Appl. Serial
No. 88/385,628. The Board issued a Notice of Institution
that same day. J.A. 61–67.
On September 18, 2019, Appellant moved to stay the
Opposition until this court ruled on related appeals in
which Appellant argued that the Board’s administrative
trademark judges are unconstitutionally appointed be-
cause they are not appointed by the President of the United
States. J.A. 67–70. Coca-Cola opposed the motion to stay.
J.A. 71–76.
On October 28, 2019, with the motion to stay still pend-
ing, Coca-Cola moved to dismiss the Opposition pursuant
to Federal Rule of Civil Procedure 12(b)(6) and Trademark
Trial and Appeal Board Manual of Procedure (“TBMP”)
section 503.02. J.A. 115–23. Because the motion was
Case: 20-1406 Document: 88 Page: 3 Filed: 09/16/2021
SOLAR SOMOHANO v. COCA-COLA COMPANY 3
potentially dispositive, the Board suspended all proceed-
ings pending disposition of Coca-Cola’s motion.
J.A. 125–26; see
37 C.F.R. § 2.127(d).
On January 7, 2020, the Board granted Coca-Cola’s
motion to dismiss because Appellant failed to oppose the
motion. Alberto S Somohano v. The Coca-Cola Co., Opp.
No. 91250956,
2020 WL 103769, at *1 (T.T.A.B. Jan. 7,
2020). Appellant’s response to Coca-Cola’s motion to dis-
miss was due on November 18, 2019, twenty days after
Coca-Cola filed its motion.
37 C.F.R. § 2.127(a) (“[A] brief
in response to a motion shall be filed within twenty
days . . . .”). The Board also noted that Appellant’s motion
to stay was moot in light of the dismissal.
Id. at *1 n.1.
Now, Appellant challenges the dismissal. We have ju-
risdiction pursuant to
28 U.S.C. § 1295(a)(4)(B).
DISCUSSION
We review the Board’s grant of a motion to dismiss de
novo. See Sunrise Jewelry Mfg. Corp. v. Fred S.A.,
175 F.3d
1322, 1324 (Fed. Cir. 1999).
To start, we note that Appellant does not dispute that
he failed to oppose Coca-Cola’s motion. Thus, the Board
did not err in granting dismissal. In proceedings before the
Board, “[w]hen a party fails to file a brief in response to a
motion, the Board may treat the motion as conceded.”
Sadeh v. Biggs, 374 F. App’x 996, 997 (Fed. Cir. 2010)
(quoting
37 C.F.R. § 2.127(a)); see also TBMP § 502.04.
“Litigation is run by rules designed to assure orderly con-
duct of the proceedings. One of those rules is the timely
submission of briefs . . . .” Chesebrough-Pond’s Inc.
v. Faberge, Inc.,
618 F.2d 776, 780 (C.C.P.A. 1980) (affirm-
ing Board’s grant of an unopposed motion to dismiss); ac-
cord Sadeh, 374 F. App’x at 997. Here, Appellant did not
oppose Coca-Cola’s motion to dismiss. Thus, the Board was
entitled to grant the motion.
Case: 20-1406 Document: 88 Page: 4 Filed: 09/16/2021
4 SOLAR SOMOHANO v. COCA-COLA COMPANY
We also note that Appellant’s sole argument on appeal
lacks merit. Specifically, Appellant challenges the author-
ity of the Board’s administrative trademark judges, who
Appellant contends were unconstitutionally appointed.
See Appellant’s Opening Br. 6, 8. This court recently ex-
plained, however, that the appointment of administrative
trademark judges to the Board is not unconstitutional be-
cause the trademark statutes grant the Director of the
U.S.P.T.O. significant supervisory control over adminis-
trating trademark judges, such that those judges are infe-
rior officers. See Piano Factory Grp., Inc. v. Schiedmayer
Celesta GmbH, No. 2020-1196, — F.4th —, —,
2021 WL
3889834, at *3–7 (Fed. Cir. Sept. 1, 2021).
CONCLUSION
For the aforementioned reasons, we affirm the Board’s
dismissal of Opposition No. 91250956.
AFFIRMED
COSTS
No costs.
