Precedential No. 32: In An "Unusual Situation," TTAB Opts To Consider Summary Judgment Motion On Unpleaded Claim

In seeking cancellation of a registration for the mark KIMBERLEY KAMPERS for campers, Petitioner moved for summary judgment on the grounds of non-ownership and abandonment, but it failed to meet its initial burden to make a prima facie case. The Board therefore denied the motion as to those grounds, but in light of Petitioner's evidence regarding nonuse during the three-year statutory abandonment period, the Board chose to consider nonuse (though unpleaded) as a separate ground for summary judgment, and it set a schedule for briefing that issue. Kimberley Kampers IP Pty Ltd v. Safiery Pty Ltd, 2022 USPQ2d 1036 (TTAB 2022) [precedential].

Petitioner claimed that it could meet its initial burden to prove a prima facie case "by showing that there is an absence of evidence supporting the nonmoving party's case." Wrong, said the Board. "[W]here, as here, 'the moving party will bear the burden of persuasion at trial, that party must support its motion with credible