[00:00:15] Speaker 02:
Councillor Thompson, you reserve two minutes at the top of your bottle?

[00:00:19] Speaker 01:
That is correct, Your Honor.

[00:00:21] Speaker 01:
Okay, you may proceed.

[00:00:23] Speaker 01:
On behalf of the Court for more, may it please the Court, the importance of the unifying interpretation of Lanham Act, Section 14,

[00:00:31] Speaker 01:
along with a review of the board's errors in the Rule 37 sanction as amplified by unwritten inherent powers provide, I believe, strong reasons to reverse on the Lanham Act issues and remand and to vacate the sanctions order instead of having a ruling on the merits.

[00:00:52] Speaker 01:
Now, I'd like to start back with the beginning of the case.

[00:00:55] Speaker 01:
At the outset, SFM filed an admitted petition that pled assertions about Corcamore and the use of its mark that were mistaken, that were unprovable.

[00:01:06] Speaker 01:
And those allegations were controverted from the outset, and they were particularly important

[00:01:12] Speaker 01:
Section 14 standing if the board chose to apply the Lexmark two-pronged standard, that is, redressability and causal nexus, as had been later applied in the Belmore cases from the Fourth Circuit.

[00:01:25] Speaker 01:
So the strategy of controverting the facts and raising the law and merits motions coupled with private overtures to settle the case were the strategy chosen.

[00:01:38] Speaker 01:
The strategy, of course, failed.

[00:01:41] Speaker 01:
But the use of merits motions and then private settlement discussions.

[00:01:46] Speaker 03:
This was the settlement where you wanted them to pay you money, right?

[00:01:50] Speaker 01:
In exchange for two registrations of longstanding marks, yes, Your Honor.

[00:01:56] Speaker 01:
So there was going to be an exchange there.

[00:02:01] Speaker 01:
Now, when the Lexmark motion was made, that's the first motion, challenging standing, the board simply said Lexmark doesn't apply because it's a likelihood of confusion action under Section 43A, and this is a Section 14 likelihood of confusion.

[00:02:17] Speaker 01:
They went no further in terms of trying to analyze what the Fourth Circuit said were the close wording, similar wording, in 43A and 14.

[00:02:27] Speaker 01:
So then we had two further motions, I'll call them the Belmore motions.

[00:02:32] Speaker 01:
When I sent the settlement letter, I had no idea that Belmore was out there in the Eastern District and was going to later be in the Fourth Circuit.

[00:02:41] Speaker 01:
But two years later, that's the two years from the time the first Lexmark motion was decided until the morning.

[00:02:47] Speaker 02:
There's two general issues here.

[00:02:49] Speaker 02:
And just to bring a little bit more clarity to the argument, you're arguing that SFM lacks standing to bring the cancellation application, correct?

[00:02:58] Speaker 02:
Correct.

[00:02:58] Speaker 02:
And then you're also arguing that the board lacked authority to terminate the proceedings or enter a default judgment as a form of sanction.

[00:03:07] Speaker 02:
That's correct.

[00:03:08] Speaker 02:
So let's go with the standing issue first.

[00:03:11] Speaker 01:
Yes, sir.

[00:03:11] Speaker 01:
All right.

[00:03:13] Speaker 01:
So the board rejected Lexmark.

[00:03:16] Speaker 01:
It then waited over a year and a half to see what the Fourth Circuit would do in the Belmore cases.

[00:03:21] Speaker 01:
And after receiving

[00:03:23] Speaker 01:
the ruling that supported Corkomore's argument in favor of Lexmark, the board simply said it would not consider it.

[00:03:29] Speaker 01:
And it moved on.

[00:03:30] Speaker 01:
It did so because of this court's decision in Cuba Tobacco.

[00:03:35] Speaker 01:
The board's view is that two cases, the two decisions, are in conflict or irreconcilable.

[00:03:41] Speaker 01:
I don't totally accept that.

[00:03:43] Speaker 01:
But that is their view.

[00:03:44] Speaker 01:
And if you accept their view, it creates what I believe is a rather untenable situation.

[00:03:49] Speaker 01:
If a party files a cancellation action in Alexandria in federal court, it must adhere to the Fourth Circuit's ruling in Belmora.

[00:03:57] Speaker 01:
You go two blocks away, as it were, to the TTAB office, and you file a petition for cancellation seeking exactly the same relief on exactly the same facts, and you could ignore Lexmark and Belmora.

[00:04:09] Speaker 01:
And similarly, take the next step is, if Belmora had gone, taken the decision from the TTAB to this court, what would have been the ruling?

[00:04:17] Speaker 01:
And if Corklemore had taken this case to the Eastern District of Virginia, then certainly Lexmark would have been the rule.

[00:04:23] Speaker 01:
So I don't believe that that's a situation that should be allowed to stand.

[00:04:28] Speaker 01:
When Congress passed the review statute, 15 U.S.C.

[00:04:31] Speaker 01:
1071, it created co-equal appellate review jurisdiction in this court and in the Fourth Circuit, this court under Section A,

[00:04:40] Speaker 01:
the Fourth Circuit under B through cases that come from the board to the Eastern District of Virginia and to the Fourth Circuit.

[00:04:46] Speaker 01:
So it is highly important that both circuits interpret the same Lanham Act statute uniformly so that we have consistent results.

[00:04:56] Speaker 01:
And to find uniformity, we would look to the Supreme Court.

[00:05:00] Speaker 01:
and where in the Lexmark case.

[00:05:02] Speaker 01:
So whether it's the holding in Lexmark or it's the use of the traditional methods of statutory interpretation that are followed in the Lexmark case, I urge the court to consider how to reconcile the Belmore case and the Cuba Tobacco case.

[00:05:16] Speaker 01:
Now what I've suggested is that Cuba Tobacco really is about whether or not a Cuban company

[00:05:21] Speaker 01:
in a title to go to court or go to the board and seek to cancel the registration.

[00:05:27] Speaker 01:
It really just gives rather short discussion of the second prong, and that's the issue here, is the likelihood of being damaged as a result of actual use of the mark by the other party, in this case, Corcoran.

[00:05:42] Speaker 01:
Now, since at the starting point they had argued or pleaded rather,

[00:05:45] Speaker 01:
facts about Corklemore that are untrue or cannot be proved.

[00:05:49] Speaker 01:
And they've had to kind of morph into some other version of facts that are not in the complaint.

[00:05:56] Speaker 01:
I think the board erred in sort of taking that as true and dismissing Lexmore.

[00:06:01] Speaker 01:
So, Cuban tobacco, again, it's about whether or not this Cuban company who's embarked from doing business in America has a cause of action.

[00:06:10] Speaker 01:
Court says, yes, the redressability problem, the first problem of Les Mark is met.

[00:06:14] Speaker 01:
The second prong is either not discussed or it is distinctly different from this case.

[00:06:19] Speaker 01:
The being damaged prong... What about 1064?

[00:06:24] Speaker 02:
No, Your Honor.

[00:06:32] Speaker 01:
They did not believe the two prongs of Wexmark, specifically the second prong.

[00:06:36] Speaker 02:
It depends on the interpretation of being damaged in that statute.

[00:06:47] Speaker 01:
So being damaged meant one thing in Lexmark and Belmore.

[00:06:51] Speaker 01:
Being damaged has historically meant just a reasonable belief.

[00:06:55] Speaker 02:
Being damaged, that's the standard under 1064?

[00:06:57] Speaker 01:
Yes, Your Honor, that's the statutory term.

[00:07:03] Speaker 01:
All right, so I believe this court has both review authority as well as supervisory authority over proceedings in the TTAB.

[00:07:13] Speaker 01:
And I would ask that it exercise that authority to distinguish Cuban tobacco as a case not on point while Belmora is on point and remove any idea in the board's mind that there is a conflict between the two.

[00:07:30] Speaker 01:
Transitioning, I think the further problem is that the motions that were made that addressed the merits about Corkomore, motions that controverted jurisdictional facts because standing has been held to be jurisdictional, and that asked the board to apply federal court precedent cannot be deemed frivolous or sanctionable bad faith.

[00:07:52] Speaker 01:
I believe they are objectively reasonable and should be encouraged, both that as well as settlement.

[00:07:59] Speaker 01:
Now, I want to focus, in particular, on a Rule 37B sanction, which erroneously ruled, as a matter of fact, that certain supplemental discovery was never sent and never received.

[00:08:12] Speaker 01:
And that's an erroneous finding that I think is foundational to the Rule 37 sanction.

[00:08:18] Speaker 01:
And therefore, that sanction B should be reversed.

[00:08:20] Speaker 01:
So here's the correct facts.

[00:08:22] Speaker 02:
And these are- Apart from the merits that you're entering now, did the court have authority to,

[00:08:28] Speaker 01:
to issue sanctions in this case under 37b if it fits that yes

[00:08:35] Speaker 01:
But the foundational part was the finding on page, I think it's 87 of the appendix, that the supplemental discovery, which was required by the order compelling supplemental discovery, that that was never sent, never received.

[00:08:50] Speaker 01:
But there's no dispute that, on the date due, that an envelope was postmarked to SFM's lawyers.

[00:08:58] Speaker 01:
It was delivered

[00:08:59] Speaker 01:
They actually received it.

[00:09:01] Speaker 01:
And inside of it, it's undisputed that it contained several things.

[00:09:05] Speaker 01:
It contained Corklemore supplemental responses to Rule 34 request, which referred to the documents on the thumb drive.

[00:09:13] Speaker 01:
It included supplemental responses to interrogatories.

[00:09:16] Speaker 01:
So it was actually served.

[00:09:19] Speaker 01:
It was actually received.

[00:09:20] Speaker 01:
And for the board to conclude that no responses and no documents were timely and actually served,

[00:09:25] Speaker 01:
and actually received is clearly erroneous.

[00:09:28] Speaker 01:
And for that reason, any sanction based on that erroneous fact-finding should be reversed.

[00:09:33] Speaker 01:
The regulation requires you to submit the discovery or serve it by email, right?

[00:09:40] Speaker 01:
That is the general rule that became effective in 2017.

[00:09:46] Speaker 01:
If I had to do over again and I had a way to email a 12-megabyte file, then... Why didn't you use a file transfer site?

[00:09:55] Speaker 01:
That's what the other side did, right?

[00:09:57] Speaker 01:
They do have in their large firm a section of their network that allows that.

[00:10:02] Speaker 01:
I don't have that.

[00:10:03] Speaker 01:
I'm a solo.

[00:10:05] Speaker 01:
I use a paper calendar.

[00:10:08] Speaker 01:
So you are correct, Your Honor.

[00:10:09] Speaker 01:
I should have done better on that.

[00:10:11] Speaker 01:
I should have done better.

[00:10:13] Speaker 01:
But I think moving into my next argument about why the sanction is incorrect is because it was an abuse of discretion.

[00:10:20] Speaker 01:
The court, the board did not consider the most relevant factors that must be considered before such a harsh sanction is imposed.

[00:10:27] Speaker 01:
The first one being, there was no material non-disclosure.

[00:10:30] Speaker 01:
They did actually get the documents.

[00:10:32] Speaker 01:
In fact, the documents, most of them had already been produced previously.

[00:10:36] Speaker 01:
They just didn't have baits numbers on them.

[00:10:39] Speaker 01:
So the supplemental production was of bait stamp documents.

[00:10:42] Speaker 01:
So there was no non-disclosure.

[00:10:43] Speaker 01:
Secondly, there was no prejudice.

[00:10:45] Speaker 01:
In fact, if you word search the court's final opinion, you will not find the word precious.

[00:10:50] Speaker 01:
There is no finding of prejudice.

[00:10:51] Speaker 01:
There's no prejudice tied to something material and not being disclosed.

[00:10:56] Speaker 01:
And I think that makes this case stand quite distinct from cases this court has heard on spoliation of evidence for people to destroy things that are material, that were inequitable conduct cases, where people do not disclose references.

[00:11:08] Speaker 01:
Well, I guess the theory is if

[00:11:12] Speaker 03:
You know, it sounds like the board concluded that you had been...

[00:11:18] Speaker 03:
really doing everything you could to delay the proceeding and obstruct the progress of the proceeding.

[00:11:24] Speaker 03:
I'm not saying you did, but let's just say that's the way they looked at it.

[00:11:28] Speaker 03:
And the board had lost total confidence that you would ever comply with their orders, their discovery orders and other orders.

[00:11:37] Speaker 03:
Then in that sense, the other side is prejudiced by, you know, your side's inability to actually follow the rules.

[00:11:48] Speaker 01:
The key point I think you mentioned there was delay.

[00:11:51] Speaker 01:
So the board found that I had delayed the case, or Corklemore had delayed the case.

[00:11:55] Speaker 01:
If you actually look at the chronology again, the case is filed, the Lexmark motion is filed, it's decided in April of 2015, and two years later they decide the Belmora case, or they decide what to do about Belmora.

[00:12:08] Speaker 01:
So you've got over a two-year

[00:12:11] Speaker 01:
time window, if you want to call it delay, that was occasioned by the Belmore cases and by the board's decision to stay the case pending the Fourth Circuit's ruling.

[00:12:21] Speaker 01:
After that, they did not hear any of my motions.

[00:12:23] Speaker 01:
They would not hear Corklemore's motion to compel.

[00:12:26] Speaker 01:
Despite multiple requests, they would not hear a motion for summary judgment.

[00:12:29] Speaker 01:
They wouldn't hear any of the motions.

[00:12:30] Speaker 01:
So there was no suspension of the proceedings for the motions that were filed because they just disallowed them.

[00:12:36] Speaker 01:
So then it goes to the end.

[00:12:37] Speaker 01:
And the last thing is, in time, the only thing that happens in the time between the motion-compelling supplement of discovery and the final order is this ruling that it was never actually sent and actually never actually received.

[00:12:50] Speaker 01:
So I believe the last thing is the order itself, compelling discovery, specifically said, here's the lesser sanction.

[00:12:57] Speaker 01:
It's not produced.

[00:12:58] Speaker 01:
It's going to be precluded.

[00:13:00] Speaker 01:
That was the sanction that was warned.

[00:13:01] Speaker 01:
There was no warning of the terminating sanction that the board ultimately entered.

[00:13:07] Speaker 01:
That just comes out of their opinion.

[00:13:09] Speaker 01:
The second aspect of the order compelling discovery says, and I quote, that any potential prejudice can be remedied by extending the period

[00:13:21] Speaker 01:
by extending the discovery period as necessary.

[00:13:24] Speaker 01:
Therefore, if they said, oh, well, you sent this by mail on Thursday, and we didn't get it till Saturday.

[00:13:30] Speaker 01:
You sent it by mail on Thursday, and then we had you email it to us on the next day, Friday.

[00:13:36] Speaker 01:
The attorney could have said, well, we'll give you more time.

[00:13:39] Speaker 01:
We'll give SFM more time.

[00:13:40] Speaker 02:
You're into your butthole time.

[00:13:41] Speaker 01:
Would you like to?

[00:13:42] Speaker 01:
OK.

[00:13:42] Speaker 01:
I'll conclude at that point.

[00:13:43] Speaker 01:
Thank you, Your Honor.

[00:13:46] Speaker 02:
Thank you.

[00:13:46] Speaker 02:
Counselor Wilbur.

[00:13:51] Speaker 00:
The two issues before this court are straightforward and simple.

[00:13:55] Speaker 00:
SFM had a right to petition the TTAB to cancel the sprout mark under section 14 of the Lanham Act.

[00:14:03] Speaker 00:
And second, the board acted within its authority when it sanctioned Corcamore for repeatedly ignoring board orders and for other egregious behavior, turning first to issues dealing with the right to petition.

[00:14:17] Speaker 00:
Corcamore's assertions about disputed facts regarding use

[00:14:21] Speaker 00:
distract from the properly pled basis for SFM's petition for cancellation.

[00:14:26] Speaker 00:
Simply looking at the trademark registrations at issue provides a proper basis to petition the TTAB for cancellation.

[00:14:34] Speaker 00:
Specifically here, SFM has pled that it owns trademark registrations for sprouts and for sprouts farmers market in connection with retail grocery store services.

[00:14:45] Speaker 00:
It also pled that Corkomore owns a federal registration for sprout

[00:14:50] Speaker 00:
for use in connection with vending machine services.

[00:14:53] Speaker 00:
Vending machine services fall under international class of good 35, as does grocery store services.

[00:14:59] Speaker 00:
As a result, we have registrations dealing with the same class of goods and dealing with nearly identical marks.

[00:15:06] Speaker 00:
That is included in the amended petition.

[00:15:09] Speaker 00:
Turning to the law that allows SFM the right to petition.

[00:15:13] Speaker 00:
SFM's right to petition is governed by section 14 of the Lanham Act.

[00:15:17] Speaker 00:
And section 14 of the Lanham Act

[00:15:19] Speaker 00:
states that the cancellation procedure is available to any person who believes that he or she will be damaged by the registrations.

[00:15:28] Speaker 00:
This court recently in Empresa Cubana cited Lexmark and noted that Lexmark clarified issues sometimes discussed in terms of standing, which are more appropriately discussed and viewed as interpretation of statutory causes of action.

[00:15:45] Speaker 00:
Here, the statutory cause of action

[00:15:47] Speaker 00:
is Section 14 of the Lanham Act, and that's a statute that must be interpreted as instructed by Lexmark.

[00:15:54] Speaker 00:
As a result, Lexmark does not overrule or undermine Section 14 jurisprudence.

[00:16:01] Speaker 00:
Instead, the two can appropriately coexist with no conflict, as the Federal Circuit did when it ruled in Impresa, Cubana.

[00:16:08] Speaker 03:
What about the Fourth Circuit opinion, though?

[00:16:12] Speaker 03:
It found otherwise, right?

[00:16:14] Speaker 00:
No.

[00:16:15] Speaker 00:
Corkomore's reliance on Balmora is misplaced.

[00:16:18] Speaker 00:
First, the ultimate holding of Balmora favors SFM, in that Balmora held that there was standing before the TTAB.

[00:16:26] Speaker 00:
And that case found that the Lanham Act authorized a foreign manufacturer to bring a trademark cancellation, which ultimately supports SFM's right to bring its own cancellation.

[00:16:36] Speaker 00:
Second.

[00:16:37] Speaker 03:
Did the Fourth Circuit use our standard, or did it follow the Lexmark articulation?

[00:16:44] Speaker 00:
Yes, but when discussing Lexmark in Balmora, that's done in connection with the section 43A, false association claim analysis.

[00:16:53] Speaker 00:
And in the section of the decision that addresses the cancellation brought under section 14, it doesn't get into which standard should apply.

[00:17:02] Speaker 00:
Instead, it's a very short section of the decision

[00:17:05] Speaker 00:
And it said that the district court improperly read a use requirement into the Lanham Act.

[00:17:11] Speaker 00:
And for those reasons, it finds that there was standing.

[00:17:16] Speaker 00:
So Balmora focuses on the use requirement, which is not present here and not at issue.

[00:17:22] Speaker 00:
And third, Balmora is a Fourth Circuit case, and it's not controlling on issues of the TTAB.

[00:17:27] Speaker 00:
Thus, it was not a reversible error for the TTAB to decline to consider Balmora.

[00:17:32] Speaker 00:
especially when the TTAB applied federal circuit precedent that is squarely on point.

[00:17:39] Speaker 00:
And under the precedent that is on point, SFM has standing.

[00:17:43] Speaker 00:
SFM has at least two real interests in the proceedings.

[00:17:47] Speaker 00:
First, SFM and its related grocery stores have a trademark registration.

[00:17:52] Speaker 00:
In Cunningham versus Laser Gulf, this court explained that registrations and the products sold under the mark they register are sufficient

[00:18:01] Speaker 00:
and necessary to establish a direct commercial interest in standing to petition for cancellation.

[00:18:07] Speaker 00:
Thus, under Cunningham versus Laser Golf, SFM has standing.

[00:18:12] Speaker 00:
As a second basis for its interest in the proceeding, SFM and its related companies operate grocery stores using the Sprouts and Sprouts Farmers Mark registrations.

[00:18:22] Speaker 00:
Under section 15 USC 1055, the use of a mark by a licensee or related companies eners to the benefit of the registrant.

[00:18:32] Speaker 00:
Thus, SFM, as the registrant, has a real interest in the reputation of stores using the Sprouts mark.

[00:18:38] Speaker 02:
So let's assume you have standing.

[00:18:40] Speaker 02:
What about the authority of the board to issue sanctions in this case?

[00:18:45] Speaker 00:
Yes.

[00:18:46] Speaker 00:
The board has two grounds of authority for issuing the sanctions it issued in this case.

[00:18:52] Speaker 00:
First, it has express authority under Trademark Rule 2.120.

[00:18:57] Speaker 00:
Trademark Rule 2.120 allows the board to issue sanctions in discovery disputes.

[00:19:04] Speaker 00:
And that rule explicitly incorporates Federal Rule of Civil Procedure 37.

[00:19:10] Speaker 00:
Federal Rule of Civil Procedure 37 identifies default judgment as a sanction that can be entered.

[00:19:17] Speaker 03:
And we endorse that in Benedict, right?

[00:19:20] Speaker 00:
Yes.

[00:19:21] Speaker 00:
Benedict is an example where this court has held that the dismissal of a cancellation, actually under less egregious circumstances, is an appropriate sanction.

[00:19:31] Speaker 00:
So when the board issued its sanction here, it was relying on express rules as well as this court's authority.

[00:19:39] Speaker 00:
Thus, it was not an abuse of discretion.

[00:19:41] Speaker 00:
Something else to point out is that there is not a requirement to find that

[00:19:49] Speaker 00:
The document's not produced or material.

[00:19:52] Speaker 00:
What the rules say is that if you have repeated violations of a board order and lesser sanctions are not appropriate, further sanctions can be issued.

[00:20:02] Speaker 00:
So here's the question.

[00:20:03] Speaker 00:
Was there a repeated violation of a board order?

[00:20:07] Speaker 00:
And this can be addressed by looking through the appendix.

[00:20:13] Speaker 00:
And if we turn to the table that's outlined by the board, which is at 87,

[00:20:19] Speaker 00:
The board, in a detailed way, identifies multiple violations.

[00:20:23] Speaker 02:
You said H7?

[00:20:24] Speaker 00:
Appendix 87.

[00:20:27] Speaker 00:
And it carries over to 88.

[00:20:30] Speaker 00:
The board identified what it found to be multiple violations of its order.

[00:20:35] Speaker 00:
Thus, the sanction was not based on one misproduction of documents.

[00:20:42] Speaker 00:
The first example that the board cites is that it ordered respondent to appear for a 30 v 6 deposition.

[00:20:48] Speaker 00:
Respondent refused to appear for that deposition despite the board's order to do so The board in its decision also notes that when petitioner attempted to reschedule the deposition Corkomore served objections and again refused to appear despite the previous order to show up for the deposition that's one example that would support the sanction and

[00:21:10] Speaker 00:
The board continues and identifies other details of its order that Corkmore did not apply with.

[00:21:16] Speaker 00:
So the notion that this was unfairly based on one errant email or one set of documents is just not true, and it misrepresents the board's very careful analysis and decision.

[00:21:29] Speaker 00:
Further, the issue of whether a lesser sanction would have been appropriate, the idea that more time should have been given or

[00:21:36] Speaker 00:
that there was a lesser sanction that would have changed this case.

[00:21:39] Speaker 00:
Well, the board addressed that as well.

[00:21:43] Speaker 00:
The board issued the first sanction in this case, which starts at Appendix 16, and the sanction is discussed in that order denying a motion to dismiss at Appendix 23.

[00:21:56] Speaker 00:
This first sanction was violated.

[00:22:01] Speaker 03:
Is there a restriction on being able to file papers or motions?

[00:22:05] Speaker 03:
It is.

[00:22:06] Speaker 00:
That sanction was violated and the board issued a reminder of that first sanction which can be found at appendix 29.

[00:22:13] Speaker 00:
That sanction was ultimately lifted in the case, but then a second sanction was entered.

[00:22:19] Speaker 00:
The second sanction was for abuse of discovery in filing frivolous motions and that can be found at appendix 71.

[00:22:28] Speaker 00:
That was violated.

[00:22:30] Speaker 00:
And before issuing any type of draconian order, the board reiterated the second sanction, which can be found in its decision at pages 73 through 74.

[00:22:39] Speaker 00:
In that same order, it notes the objection to the case schedule was a violation of its sanction, and again, reminds counsel what needs to be done to comply with the order.

[00:22:51] Speaker 00:
So there were two earlier sanctions issued.

[00:22:54] Speaker 00:
Both sanctions were violated, and the board provided reminders of that violation.

[00:22:59] Speaker 00:
When the bad behavior continued, a third board sanction was issued, which is why we're here today.

[00:23:04] Speaker 00:
So the idea that there were repeated violations of board sanctions is present here.

[00:23:12] Speaker 00:
And there's a reasonable basis to believe that lesser sanctions would not be appropriate.

[00:23:17] Speaker 00:
That itself is one basis to support this final judgment.

[00:23:22] Speaker 00:
Yes, there are lesser sanctions along the way that the board suggested but in looking at its decision Particularly pages 87 and 88 it identifies that there are multiple violations so

[00:23:50] Speaker 00:
The lesser solution that you've brought up would not be appropriate for the violation of not showing up to a deposition.

[00:23:56] Speaker 00:
That's never been rectified.

[00:23:58] Speaker 02:
So how would you say this case compares to our case in Benedict?

[00:24:04] Speaker 00:
From what I understand of the facts in Benedict, I believe these violations are more egregious.

[00:24:10] Speaker 00:
While it's true that the discovery violations are similar to those in Benedict,

[00:24:14] Speaker 00:
The board's inherent authority section in its decision also identifies quite egregious behavior that I don't believe was here was President and Benedict some of that egregious behavior includes Hanging up on counsel during meet and confers refusing to meet and confer outright refusing to read or open emails from petitioners counsel for years That behavior is summarized by the board at appendix 89 and I think Here we have

[00:24:44] Speaker 00:
Benedict really focused on the discovery violations under trademark rule 2.120.

[00:24:49] Speaker 00:
But this case, we also have the sanction for the egregious behavior that the board found.

[00:24:57] Speaker 00:
And that is discussed in the board's decision at appendix 89 through 91.

[00:25:01] Speaker 00:
And that is a completely separate ground for issuing the sanction of a dismissal here.

[00:25:09] Speaker 00:
Unless the court has any further questions, SFM asks that you affirm the board's decision.

[00:25:15] Speaker 00:
Thank you.

[00:25:24] Speaker 02:
I'll move that under two minutes.

[00:25:25] Speaker 01:
Thank you very much.

[00:25:26] Speaker 01:
I just wanted to mention the Benedict case that the court just asked about.

[00:25:30] Speaker 01:
And Benedict, the pro se plaintiff, did not answer any discovery whatsoever ever for two years.

[00:25:36] Speaker 01:
It did not respond to a motion to compel.

[00:25:38] Speaker 01:
It did not comply with the motion to compel.

[00:25:41] Speaker 01:
To me, that would probably be egregious and would explain what Benedict says.

[00:25:45] Speaker 01:
I think a good example, too, is counsel's SFM brief cites the case R. Bruton.

[00:25:53] Speaker 01:
And the R. Bruton case is something I'm not that familiar with, which was interference practice.

[00:25:57] Speaker 01:
There was some requirement, some had to be done by a certain date.

[00:26:00] Speaker 01:
The question was, you didn't do it, so what's the appropriate sanction?

[00:26:03] Speaker 01:
In R. Bruton, the sanction was default and dismissal.

[00:26:06] Speaker 01:
R. Bruton, though, cites a Gerritsen case that had similar facts where there was no sanction because there was no prejudice, there was no discussion of a lesser sanction.

[00:26:17] Speaker 03:
Can you explain your side of the story on the deposition and how the deposition never ended up happening, even after over a year that it was noticed?

[00:26:27] Speaker 01:
The deposition was noticed originally and didn't occur.

[00:26:34] Speaker 01:
So then there's an order that says you'll have the deposition.

[00:26:38] Speaker 01:
Then both parties serve deposition notices.

[00:26:41] Speaker 01:
And it led to a stalemate.

[00:26:43] Speaker 01:
They would not produce anybody.

[00:26:45] Speaker 01:
So I said I wouldn't produce anybody.

[00:26:47] Speaker 01:
I then opted for settlement discussions.

[00:26:49] Speaker 01:
So there's settlement discussions the week leading up to when the deposition date is.

[00:26:53] Speaker 01:
The settlement discussions did not result in a settlement.

[00:26:57] Speaker 01:
I filed a motion for protective order.

[00:27:00] Speaker 01:
The board, in 75 minutes... Same day they denied it.

[00:27:04] Speaker 01:
Yeah, I wasn't aware of it.

[00:27:06] Speaker 01:
I mean, it was at lunch hour.

[00:27:07] Speaker 01:
They sent an email out.

[00:27:08] Speaker 01:
I didn't know it was there.

[00:27:09] Speaker 01:
It was over and done with in 75 minutes.

[00:27:11] Speaker 01:
So, in real answer to your question, what's really going on is I mismanaged the stalemate.

[00:27:17] Speaker 01:
It was a stalemate where no party was going to...

[00:27:19] Speaker 01:
do what the other party was requesting, and their strategy was accepted by the court.

[00:27:25] Speaker 01:
I'm not defending that.

[00:27:27] Speaker 01:
I'm saying I could have done better and should have done better on that.

[00:27:29] Speaker 02:
But the order says we can extend the period.

[00:27:32] Speaker 02:
Isn't the difference here between this case and Benedict is that here you actually violated sanctions orders?

[00:27:40] Speaker 01:
By filing documents?

[00:27:42] Speaker 02:
No.

[00:27:42] Speaker 02:
The court issued a sanction order, and you violated that one and then a second one.

[00:27:47] Speaker 01:
Those two that I think you're referring to both said, no, unpermitted filings.

[00:27:53] Speaker 01:
So violated by filing a request to make a motion I did not believe was egregious or condemnation.

[00:28:01] Speaker 01:
I made a formal written request.

[00:28:03] Speaker 01:
May I file a motion?

[00:28:05] Speaker 01:
And they said, no, that violates the order.

[00:28:07] Speaker 01:
Even asking on a piece of paper is a violation of our sanctions order.

[00:28:12] Speaker 01:
So again, in hindsight, I shouldn't have done that.

[00:28:14] Speaker 01:
I really took it as similar to courts where you pre-file motions, and then the magistrate calls you up and says, let's talk about this, don't waste your time with this motion, and he never schedules it.

[00:28:25] Speaker 01:
So you submit it, if you look at my request for a motion to compel, I said,

[00:28:30] Speaker 01:
Let's have a conference.

[00:28:31] Speaker 01:
I'm available for a conference.

[00:28:32] Speaker 01:
If there's anything else you need for the conference, let me know.

[00:28:34] Speaker 01:
But I submitted all the paperwork that had been required.

[00:28:37] Speaker 01:
So in other instances, I did.

[00:28:39] Speaker 01:
But I do take exception when the court says that it was a frivolous motion when I asked the board to follow Bill Moore.

[00:28:46] Speaker 01:
I think it's not frivolous to ask for permission to do something, even if that's not what exactly the order said.

[00:28:55] Speaker 01:
And I did call the interlocutory attorney and tried to set things up.

[00:28:59] Speaker 01:
So in closing, I would just say the board has no inherent authority.

[00:29:04] Speaker 01:
And I would cite file USC 558B.

[00:29:07] Speaker 01:
The last thing is, in submitting the case and the issues on the record of the court, I want to thank the court for giving me this opportunity to discuss it today.

[00:29:22] Speaker 02:
Our next case is Apple Inc.

[00:29:24] Speaker 02:
versus Unilock 2017 LLC, number 19-1636.