Kaszuba v. Iancu ( 2020 )

Case: 19-1547 Document: 62 Page: 1 Filed: 08/05/2020
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
KRIS KASZUBA, DBA HOLLYWOOD GROUP,
Appellant
v.
ANDREI IANCU, UNDER SECRETARY OF
COMMERCE FOR INTELLECTUAL PROPERTY
AND DIRECTOR OF THE UNITED STATES
PATENT AND TRADEMARK OFFICE,
Intervenor
______________________
2019-1547
______________________
Appeal from the United States Patent and Trademark
Office, Trademark Trial and Appeal Board in No.
92061976.
______________________
Decided: August 5, 2020
______________________
KRIS KASZUBA, Del Mar, CA, pro se.
THOMAS L. CASAGRANDE, Office of the Solicitor, United
States Patent and Trademark Office, Alexandria, VA, for
intervenor. Also represented by CHRISTINA J. HIEBER,
THOMAS W. KRAUSE, FARHEENA YASMEEN RASHEED, ERICA
JEUNG DICKEY.
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2 KASZUBA v. IANCU
______________________
Before O’MALLEY, BRYSON, and REYNA, Circuit Judges.
O’MALLEY, Circuit Judge.
This appeal stems from a cancellation proceeding be-
fore the Trademark Trial and Appeal Board (“Board”). The
record reveals a proceeding peppered with unnecessary fil-
ings, ultimately concluding with sanctions in the form of
default judgment. Finding no abuse of discretion or legal
error in the Board’s determinations, we affirm.
I. BACKGROUND
Cancellation proceedings before the Board are largely
governed by the Federal Rules of Civil Procedure. See 37
C.F.R. § 2.116(a). This cancellation proceeding presents a
tangled procedural history. We discuss only those aspects
relevant to our decision.
A. Pleadings
Appellant Kris Kaszuba (“Kaszuba”) successfully reg-
istered his mark HOLLYWOOD BEER on the Supple-
mental Register on July 15, 2008, as Registration No.
4,469,935. The registration was based on the mark’s pur-
ported use in commerce for beer. On August 4, 2015, Hol-
lywood Vodka, LLC (“HVL”) filed an application for
cancellation of Kaszuba’s mark under Section 1064 of the
Lanham Act. 1 HVL alleged that: (1) the Board had refused
registration of HVL’s pending trademark application
partly because of the registration of Kaszuba’s mark; (2)
Kaszuba had committed fraud on the USPTO in obtaining
1 Despite several notices from the court, Petitioner
HVL did not file an entry of appearance in this appeal. The
Director of the United States Patent and Trademark Office
(“USPTO”) filed a notice of intervention pursuant to 35
U.S.C. § 143.
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KASZUBA v. IANCU 3
registration of his mark; and (3) Kaszuba had not used his
mark in commerce.
Kaszuba filed an answer to the petition on September
15, 2015. He followed this filing with a motion to dismiss,
which the Board refused to consider because Kaszuba filed
it after filing his answer. The Board subsequently con-
ducted a discovery conference, and, upon reviewing the
pleadings, determined that HVL had failed to properly
plead its fraud claim. Accordingly, the Board directed HVL
to file an amended petition repleading the fraud claim
within fifteen days.
It is undisputed that HVL did not meet its Friday,
March 25, 2016 deadline to file an amended petition. In-
stead, HVL filed serial amended petitions on March 28,
2016 (“Amended Petition”) and March 29, 2016 (“Second
Amended Petition”), respectively. 2 These amended peti-
tions were only a few days late, and differed materially in
just one respect: the Second Amended Petition corrected a
typographical error, specifying that in its “Claim 1,” HVL
was seeking cancellation based on “fraud” not “abandon-
ment.” In response, Kaszuba filed a motion to dismiss, as-
serting, inter alia, that HVL’s amended pleadings were
untimely and that HVL did not have a real interest in the
cancellation proceeding. HVL opposed the motion to dis-
miss, arguing that the Board, in its discretion, should ac-
cept the untimely filing because of excusable neglect and
that it had plausibly alleged a real interest in the proceed-
ing.
The Board construed HVL’s excusable neglect argu-
ments as a request to reopen the time to file HVL’s
amended petition and to accept the Second Amended Peti-
tion as the operative pleading in the matter. J.A. 366
2 The Board received paper copies of these petitions
on March 31, 2016, and April 4, 2016, respectively.
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4 KASZUBA v. IANCU
(citing Fed. R. Civ. P 6(b)). It granted HVL’s request based
on excusable neglect after conducting an analysis of the
factors articulated in Pioneer Investment Services Co. v.
Brunswick Associates L.P., 507 U.S. 380 (1993). J.A.
366–69. The Board also concluded that HVL had (1) suffi-
ciently pled entitlement to bring this cancellation proceed-
ing; and (2) adequately pled its fraud claim; and (3) failed
to plead the elements of an abandonment claim. J.A. 372–
73.
B. Discovery
Like the pleadings stage, discovery was belabored. On
January 23, 2017, in response to Kaszuba’s motion to dis-
qualify HVL’s newly appointed counsel, the Board issued
an order denying the motion and noting that “[p]rogress in
this case has been delayed significantly based on the filings
of both parties.” J.A. 528. The Board required Kaszuba to
obtain leave of the Board’s Interlocutory Attorney before
filing any future submissions in the case. It did not require
HVL to do the same because HVL had retained new coun-
sel.
On November 27, 2017, the Board granted-in-part
HVL’s motion to compel discovery after Kaszuba failed to
respond to interrogatories and document requests. The
Board ordered Kaszuba to provide discovery but denied
HVL’s motion to the extent HVL requested sanctions
against Kaszuba. At the same time, the Board warned
Kaszuba that if he failed to respond to the discovery, HVL’s
“remedy may lie in a renewed motion for sanctions, includ-
ing entry of judgment as appropriate.” J.A. 744. The Board
also required both parties to seek leave before filing any
motions.
Rather than responding to the discovery, Kaszuba filed
a request for permission to submit a request for reconsid-
eration of the Board’s November 27, 2017 order. After con-
ducting a telephone conference, the Board denied this
request.
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KASZUBA v. IANCU 5
Kaszuba again failed to respond to the discovery re-
quests. Another round of a motion for sanctions (filed by
HVL without leave), denial, and a motion for reconsidera-
tion (filed by Kaszuba without leave), and denial followed.
In its denials of these motions, the Board remarked that
Kaszuba had “deliberately sought to evade and frustrate”
HVL’s efforts to obtain discovery. J.A. 821. Although the
Board concluded that imposing sanctions would be unduly
harsh, and gave Kaszuba an extension to serve the delayed
discovery, it again warned Kaszuba that if he failed to com-
ply with the discovery order, judgment would be entered
against him on motion by HVL. J.A. 822. Undeterred,
Kaszuba continued to file additional “communications”
with the Board, seeking reconsideration of its orders. He
also filed two untimely petitions with the Director alleging
unfair treatment by the Board, despite the Board granting
him a third extension to serve the delayed discovery.
Kaszuba never served the requested discovery. After
the time for service had passed, HVL filed a renewed mo-
tion for sanctions after obtaining leave from the Board,
seeking either an entry of judgment against Kaszuba or an
order precluding Kaszuba from introducing any evidence
at trial. On December 13, 2018, the Board granted the mo-
tion for sanctions—this time entering judgment against
Kaszuba. The Board recognized in its decision that default
judgment is a harsh remedy. It found, however, that it was
warranted under the circumstances because “no less dras-
tic remedy would be effective and there is a strong showing
of willful evasion.” J.A. 5.
Kaszuba timely filed a notice of appeal. We have juris-
diction under 28 U.S.C. § 1295(a)(4)(B).
II. DISCUSSION
We review the Board’s legal conclusions de novo, and
its factual findings for substantial evidence. In re Pacer
Tech., 338 F.3d 1348, 1349 (Fed. Cir. 2003) (citations omit-
ted). On appeal, Kaszuba argues that the Board
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6 KASZUBA v. IANCU
(1) impermissibly allowed HVL’s “untimely” and “futile”
amendments to the petition; (2) erred in denying Kaszuba’s
motion to dismiss for failure to plead entitlement to the
cancellation proceeding and fraud; and (3) abused its dis-
cretion in imposing sanctions and entering default judg-
ment against Kaszuba. We address each issue in turn.
A. Excusable Neglect
After analyzing HVL’s claim of excusable neglect under
the four factors identified in Pioneer Investment Services
Co., the Board accepted the Second Amended petition even
though it was filed out of time. In Pioneer, addressing the
meaning of “excusable neglect” (as used in the Federal
Rules), the Supreme Court explained that the determina-
tion is:
[A]t bottom an equitable one, taking account of all
relevant circumstances surrounding the party's
omission. These include . . . [1] the danger of prej-
udice to the [non-movant], [2] the length of the de-
lay and its potential impact on judicial proceedings,
[3] the reason for the delay, including whether it
was within the reasonable control of the movant,
and [4] whether the movant acted in good faith.
507 U.S. at 395. We have endorsed the Board’s use of the
Pioneer factors for determining excusable neglect in the
context of its own regulations. FirstHealth of Carolinas,
Inc. v. CareFirst of Maryland, Inc., 479 F.3d 825, 828–29
(Fed. Cir. 2007). We review the Board’s application of the
factors for an abuse of discretion. Id.On appeal, Kaszuba argues that the Board erred in its
excusable neglect determination. Specifically, Kaszuba
contends that the Board combined the first two factors and
overlooked the fact that HVL filed the amended petitions
seven months after the initial petition. Appellant’s Br. 13.
In Kaszuba’s view, this negates the Board’s finding that
HVL’s delay was “short.” Kaszuba therefore asks us to
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KASZUBA v. IANCU 7
reverse the Board’s ruling. We see no error or abuse of dis-
cretion in the Board’s analysis.
With respect to the first Pioneer factor, the Board found
that there was no evidence of prejudice to Kaszuba by reo-
pening the time for HVL for file its amended petition. The
Board did not see any “surprise” to Kaszuba or disruption
to the orderly administration of the proceeding on account
of the minimally delayed filing. As to the second factor, the
Board determined that the delay was not significant. HVL
filed an amended petition only three days out of time, and
most of that period fell over a weekend. The Board deter-
mined that the third factor (reason for delay) was within
HVL’s reasonable control. As to the fourth factor (bad
faith), the Board concluded that there was no allegation or
evidence of any bad faith. Considering the four factors to-
gether, the Board found that the lack of prejudice out-
weighs the fact that the delay was caused by HVL’s
negligence. It therefore concluded that HVL had estab-
lished excusable neglect.
We have previously affirmed the Board’s refusal to find
excusable neglect where counsel did not provide an expla-
nation as to why other authorized individuals in the same
firm could not have assumed responsibility for the case.
See FirstHealth, 479 F.3d at 829 (finding no excusable ne-
glect where the second and third factors weighed against
such a finding). But, as the Supreme Court has explained,
the excusable neglect inquiry is an equitable one, and the
Board properly considered all the circumstances surround-
ing HVL’s delay. Here, as the Board noted, the delay was
short. Given these circumstances, we see no abuse of dis-
cretion in the Board’s determination of excusable neglect. 3
3 We reject Kaszuba’s contention that HVL’s filing
was, in fact, delayed by seven months. Kaszuba either mis-
understands or misrepresents the procedural posture at
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8 KASZUBA v. IANCU
Having determined that there was no abuse of discre-
tion in excusing the three-day delay in HVL’s filing of its
amended petition, we now turn to the remaining issues on
appeal with the understanding that HVL’s Second
Amended Petition is the operative petition in this proceed-
ing.
B. Motion to Dismiss
The Board’s denial of a motion to dismiss pursuant to
Rule 12(b)(6) is a question of law that we review de novo.
See Sunrise Jewelry Mfg. Corp. v. Fred S.A., 175 F.3d 1322,
1324 (Fed. Cir. 1999). On review, we accept the non-mo-
vant’s allegations as true and draw all reasonable infer-
ences in the non-movant’s favor. Id. “Dismissal is
appropriate ‘if it is clear that no relief could be granted un-
der any set of facts that could be proved consistent with the
allegations.’” Young v. AGB Corp., 152 F.3d 1377, 1379
(Fed. Cir. 1998) (quoting Abbott Labs. v. Brennan, 952 F.2d
1346, 1353 (Fed. Cir. 1991)). On appeal, Kaszuba chal-
lenges the Board’s determination that HVL sufficiently
pled entitlement to bring this cancellation proceeding and
its fraud claim. We address each in turn.
1. Entitlement to Seek Cancellation
We note, as we have in other recent cases, that it is im-
proper to discuss requirements for establishing a statutory
cause of action in terms of “standing.” Lexmark Int’l, Inc.
v. Static Control Components, Inc., 572 U.S. 118, 128 n.4
(2014); Australian Therapeutic v. Naked TM, LLC, No. 19-
1567, Slip. Op. at 5 (Fed. Cir. July 27, 2020); Ritchie v.
Simpson, 170 F.3d 1092, 1094 (Fed. Cir. 1999) (“‘case’ and
issue. Kaszuba answered HVL’s initial petition, and the
Board instituted the proceeding. It was only after a discov-
ery conference months later that the Board directed HVL
to amend its petition, which HVL did, albeit three days
late.
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KASZUBA v. IANCU 9
‘controversy’ restrictions for standing do not apply to mat-
ters before administrative agencies and boards, such as the
[US]PTO.”). Kaszuba and the Board both make this mis-
take in this cancellation proceeding, as does the Director.
The requirements to bring a cancellation proceeding under
15 U.S.C. § 1064 are appropriately viewed as interpreta-
tions of a statutory cause of action. See Empresa Cubana
Del Tabaco v. General Cigar Co., Inc., 753 F.3d 1270, 1275
(Fed. Cir. 2014) (citing Lexmark, 572 U.S. at 125–28).
Section 1064 permits a petitioner to seek cancellation
of a registered trademark if he believes that he is or will be
damaged by the registered trademark. Id. The petitioner
must demonstrate (1) a real interest in the proceeding and
(2) a reasonable belief of damage. Empresa Cubana, 753
F.3d at 1275. These “element[s] of a cause of action . . .
must be adequately alleged at the pleading stage in order
for the case to proceed.” Lexmark, 572 U.S. at 134 n.6 (cit-
ing Ashcroft v. Iqbal, 556 U.S. 662, 678–679 (2009)). For
purposes of our review, we “accept as true all well-pled and
material allegations of the complaint, and must construe
the complaint in favor of the complaining party.” Ritchie,
170 F.3d at 1097.
Kaszuba argues that HVL did not adequately plead
“standing” to bring the cancellation proceeding because it
failed to allege a reasonable belief of damage from
Kaszuba’s registered mark. Appellant’s Br. 10. In
Kaszuba’s view, HVL should have addressed the other is-
sues raised in the Board’s rejection before it could allege a
reasonable belief of damage from Kaszuba’s mark. Id.
at 11. Kaszuba also challenges HVL’s ownership of the re-
jected trademark application, arguing that, without an
ownership interest in the application, HVL cannot bring
this cancellation proceeding. Id. at 9–10. Kaszuba’s argu-
ments are meritless.
A petitioner may demonstrate entitlement to seek can-
cellation of a registered mark if the USPTO rejects its
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10 KASZUBA v. IANCU
trademark application based on a likelihood of confusion
with the registered mark. See Empresa Cubana, 753 F.3d
at 1274–75. In Empresa Cubana, we held that petitioner’s
trademark application is a “legitimate commercial inter-
est,” satisfying the real interest requirement. Id. And, we
explained that “blocking” of a petitioner’s trademark appli-
cation was sufficient to demonstrate a reasonable belief of
damage. Id. HVL’s Second Amended Petition included al-
legations along exactly these lines.
Specifically, HVL pled a real interest in the proceeding
because it stated that its predecessors-in-interest filed
Trademark Application No. 86/069,833, to register the
HOLLYWOOD VODKA mark. J.A. 260–61. HVL also al-
leged that it acquired all interest and goodwill in that ap-
plication from the original applicants by virtue of an
assignment. J.A. 261. And, HVL alleged that the USPTO
rejected its application based on a likelihood of confusion
with Kaszuba’s registered HOLLYWOOD BEER mark.
Thus, HVL sufficiently pled both the real interest and rea-
sonable belief of damage elements of the cause of action un-
der § 1064. This is hardly a case, therefore, where the
petition contains general allegations of harm. See e.g.
Bank v. Al Johnson’s Swedish Rest. & Butik, Inc., 795 F.
App’x 822, 825 (Fed. Cir. 2019) (finding claimant had failed
to plead a reasonable basis for his belief of damage where
he alleged that the Goats on the Roof Registration was “of-
fensive to numerous persons” including himself).
We also reject Kaszuba’s arguments based on HVL’s al-
leged lack of ownership in the HOLLYWOOD VODKA ap-
plication. First, at the pleadings stage, “the facts asserted
by [the petitioner] need not prove his case on the merits.”
Ritchie, 170 F.3d at 1098. Of course, HVL’s allegations do
not conclusively establish entitlement to bring this cancel-
lation proceeding and it must prove its case. But, as dis-
cussed above, HVL’s allegations survive a motion to
dismiss. Second, we have recently held that “neither
§ 1064 nor our precedent require that a petitioner in a
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KASZUBA v. IANCU 11
cancellation proceeding must prove that it has proprietary
rights in its own mark in order to demonstrate a real inter-
est in the proceeding and a belief of damage.” Australian
Therapeutic, Slip. Op. at 7. Accordingly, the Board did not
err in concluding that HVL sufficiently pled entitlement to
bring this cancellation proceeding.
2. Fraud
“Fraud in procuring a trademark registration or re-
newal occurs when an applicant knowingly makes false,
material representations of fact in connection with his ap-
plication.” In re Bose Corp., 580 F.3d 1240, 1243 (Fed. Cir.
2009) (internal quotations and citations omitted). Federal
Rule of Civil Procedure 9(b), applicable to Board proceed-
ings under 37 C.F.R. § 2.116(a), requires that “[i]n alleging
fraud or mistake, a party must state with particularity the
circumstances constituting fraud or mistake.” Fed. R. Civ.
P. 9(b). But, the rule explains, “[m]alice, intent,
knowledge, and other conditions of a person’s mind may be
averred generally.” Id. We have construed the rule to re-
quire “identification of the specific who, what, when,
where, and how of the material misrepresentation or omis-
sion committed before the [US]PTO.” Exergen Corp. v.
Wal-Mart Stores, Inc., 575 F.3d 1312, 1328 (Fed. Cir. 2009)
(construing Rule 9 in the context of pleading inequitable
conduct in patent cases).
The Board concluded that HVL had sufficiently pled its
claim of fraud by alleging that: (1) Kaszuba submitted fab-
ricated specimens during prosecution of his trademark; (2)
Kaszuba knew that his representation was false at the time
he signed the statement of use in his application; (3) this
false representation was material to the USPTO’s exami-
nation of Kaszuba’s application for registrability; and (4)
Kaszuba intended to deceive the USPTO into issuing the
registration. J.A. 371.
Kaszuba argues that, contrary to the Board’s conclu-
sion, HVL did not plead fraud with a heightened degree of
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12 KASZUBA v. IANCU
particularity and did not allege any instances of willful or
knowingly-made false representations during prosecution
of the application. Appellant’s Br. 15. Kaszuba takes issue
with the fact that HVL alleged fraudulent representations
“on information and belief.” Id. He also contends that
HVL’s fraud allegations are premised on allegations that
Kaszuba “knew or should have known” that his statements
were false. Id. Such allegations, according to Kaszuba, al-
lege mere negligence, not fraud or intent to deceive. Id.
at 16. We are not convinced.
As the Director points out, Kaszuba misunderstands
Rule 12(b)(6) and the Board’s orders. Director’s Br. 41–43.
For one, Kaszuba points to cases that discuss the require-
ments of proving allegations of fraud and intent to deceive.
But on a motion to dismiss pursuant to Rule 12(b)(6), we
are not concerned with whether HVL can prove its allega-
tions of fraud and intent to deceive on the merits. Instead,
we look to whether HVL has pled its fraud claim with par-
ticularity. We conclude that it has.
In its Second Amended Petition, HVL alleged that, pur-
suant to applicable federal regulations, Kaszuba was re-
quired to register his beer label on the Certificate of Label
Approval (“COLA”) registry before selling beer in com-
merce. J.A. 262. HVL alleged that no such label was reg-
istered on the COLA registry, even though Kaszuba
represented to the USPTO during prosecution of his trade-
mark registration application that he was selling beer in
commerce. HVL also alleged that Kaszuba knowingly
made false material statements to the USPTO by stating
that the HOLLYWOOD BEER mark was in use on goods
as of the date of the application. J.A. 264. And, HVL al-
leged that Kaszuba submitted false specimens of labels to
fraudulently induce the USPTO to issue his use-based
trademark registration. Id. HVL alleged that Kaszuba
knew that the HOLLYWOOD BEER mark was not in use
in commerce on beer as of the filing date of his application.
J.A. 265. Finally, HVL alleged that Kaszuba similarly
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KASZUBA v. IANCU 13
misrepresented to the USPTO that the HOLLYWOOD
BEER mark was in use on goods as of the date of filing his
Section 8 Affidavit in order to maintain his registration of
the mark. J.A. 266.
These allegations, taken together, provide the “specific
who, what, when, where, and how of the material misrep-
resentation or omission committed before the [US]PTO.”
Exergen Corp., 575 F.3d at 1328. 4 Accordingly, we hold
that the Board did not err in concluding that HVL suffi-
ciently pled its fraud claim.
C. Default Judgment
In cases of “repeated failure to comply with reasonable
orders of the . . . Board, when it is apparent that a lesser
sanction would not be effective[,]” the Board may order ap-
propriate sanctions as defined in Trademark Rule
2.120(g)(1) and Fed. R. Civ. P. 37(b)(2), including entry of
judgment. Benedict v. Super Bakery, Inc., 665 F.3d 1263,
1268–69 (Fed. Cir. 2011). We review decisions concerning
discovery sanctions for abuse of discretion. Carolina Ex-
ports Int’l, Inc. v. Bulgari, S.p.A., 108 F.3d 1394 (Fed. Cir.
1997).
Kaszuba argues that the cancellation of his mark as a
sanction was unjust and based on “erroneous and inade-
quate findings.” Appellant’s Br. 21. He laments being un-
able to have his day in court and being denied his right to
be heard on the merits. But, Kaszuba does not offer any
explanation for his refusal to comply with the Board’s or-
ders compelling discovery, despite the multiple extensions
afforded to him. Nor does he provide any basis for us to
4 Kaszuba also argues that the “late-filed” Amended
Petition pled “abandonment,” not fraud. Appellant’s
Br. 15. We reject this argument because it focuses on a ty-
pographical error in HVL’s Amended Petition that was cor-
rected by HVL in the operative Second Amended Petition.
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14 KASZUBA v. IANCU
conclude that the Board abused its discretion in imposing
the sanction of default judgment. Instead, Kaszuba con-
tends that it was unjust to cancel his mark given the “con-
fusion” regarding the operative pleading, the contention
regarding which of the attorneys represented HVL, and the
fact that the discovery was outside the scope of the un-
dismissed claim at issue. Appellant’s Br. 21. We do not
agree.
The record supports the conclusion that the Board did
not abuse its discretion in imposing the sanction of default
judgment, harsh as it may be. The Board found that no
less drastic remedy would be effective and that there was
a strong showing of willful evasion by Kaszuba. See J.A. 5
(“We believe [such a] situation exists here.”). In entering
default judgment, the Board concluded that, rather than
complying with its orders, Kaszuba “repeatedly and will-
fully acted in a manner to evade” the discovery requests.
We see no abuse of discretion here. The November 27,
2017 Order compelling discovery warned Kaszuba that he
was risking default judgment by not responding to the dis-
covery. In subsequent orders and communications, the
Board repeatedly reminded Kaszuba to comply with the
November 27, 2017 Order. It also denied HVL’s initial mo-
tions for sanctions, and gave Kaszuba multiple extensions
to comply with the November 27, 2017 Order. Rather than
complying with the discovery order, Kaszuba chose to file
untimely petitions with the Director requesting review of
the Board’s orders and alleging unfair treatment by the
Board. Kaszuba never served the discovery responses.
Like the trademark owner in Benedict, Kaszuba “continu-
ally failed to comply with Board orders, and . . . hampered
reasonable procedures appropriate to resolution of this
trademark conflict [and] . . . offered no explanation of why
no discovery responses had been made.” Benedict, 665 F.3d
at 1269. Accordingly, we conclude that the Board did not
abuse its discretion in entering default judgment against
Kaszuba.
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KASZUBA v. IANCU 15
CONCLUSION
We have considered Kaszuba’s remaining arguments
and find them unpersuasive. For the foregoing reasons,
the decision of the Board is affirmed.
AFFIRMED
COSTS
The parties shall bear their own costs.