Failure of Proof

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10.03.16

By Leslie Ruiter

If the party in the position of plaintiff (which includes a counterclaim plaintiff) fails to submit any proof during its initial testimony period, the opponent can move, prior to commencement of its own testimony period, for a dismissal on the ground of failure to prosecute pursuant to Trademark Rule 2.132(a), 37 C.F.R. Sec. 2.132(a).  In addition, if only USPTO records are submitted by a party in the position of plaintiff, the opponent can move to dismiss pursuant to Trademark Rule 2.132(b), 37 C.F.R. Sec. 2.132(b), if the submitted evidence fails to state a prima facie case.

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