HUB Advanced Networks LLC v. Ocean Drive Logistics LLC

AJL Mailed: August 20, 2026
Opposition No. 91294344
HUB Advanced Networks LLC
v.
Ocean Drive Logistics LLC
Before Johnson, Deputy Chief Administrative Trademark Judge, and
Larkin and Casagrande, Administrative Trademark Judges.
By the Board:
On October 3, 2024, Opposer filed a notice of opposition, along with exhibits
thereto, opposing registration of Application Serial No. 98185116 on the grounds of
likelihood of confusion under Trademark Act Section 2(d), 15 U.S.C. § 1052(d), and
dilution under Section 43(c) of the Act, 15 U.S.C. § 1125(c). Applicant timely filed its
answer, and the proceeding has since progressed through discovery and every trial
period without any submissions to, or actions by, the Board.
Opposer’s rebuttal period closed on December 22, 2025, with Opposer’s main brief
on the case due by February 20, 2026.1 Opposer did not file a main brief by that
deadline. Consequently, by order dated March 3, 2026, and pursuant to Trademark
Rule 2.128(a)(3), 37 C.F.R. § 2.128(a)(3), the Board allowed Opposer thirty days in
1 2 TTABVUE 3.
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
P.O. Box 1451
Alexandria, VA 22313-1451
General Contact Number: 571-272-8500
THIS ORDER IS NOT A
PRECEDENT OF THE
TTAB

Opposition No. 91294344
2
which to show cause why the Board should not treat Opposer’s failure to file a brief
as a concession of the case.
On March 10, 2026, Opposer filed its combined response and motion to file its
main brief on the case out of time pursuant to Fed. R. Civ. P. 6(b)(1)(B), including
therewith its proposed main brief on the case.2 Opposer’s combined response and
motion to reopen is contested.3
Show Cause Order for Failure to File an Opening Brief Discharged
The principal purpose of Trademark Rule 2.128(a)(3) is to save the Board the
burden of determining a case on the merits where the plaintiff has lost interest in the
case or the parties have entered into a settlement but neglected to notify the Board.
See Vital Pharm., Inc. v. Kronholm, No. 91181806, 2011 WL 3381379, at *2
(TTAB 2011). Since Opposer has filed a brief in this case, albeit untimely, and has
further moved the Board to accept its brief based on excusable neglect,4 it is apparent
that Opposer has not lost interest in this case. Accordingly, the March 3, 2026 show
cause order is discharged. See Trademark Rule 2.128(a)(3); Gaylord Entm’t Co. v.
Calvin Gilmore Prods. Inc., No. 91030323, 2000 WL 33406990, at *5 (TTAB 2000)
(Rule 2.128(a)(3) show cause order discharged where opposer’s new counsel moved to
reopen discovery and trial dates).
2 6 TTABVUE. The Federal Rules of Civil Procedure are made applicable to Board
proceedings under Trademark Rule 2.116(a), 37 C.F.R. § 2.116(a).
3 We have considered the parties’ arguments on the contested motion, but do not repeat or
discuss all of their arguments, except as necessary to explain our order. Guess? IP Holder LP
v. Knowluxe LLC, No. 92060707, 2015 WL 9702438, at *1 (TTAB 2015).
4 6 TTABVUE 2 and 3-4, ¶ 8.

Opposition No. 91294344
3
Motion to Reopen Time to File Opening Brief
Where the time for taking a required action has expired, a party that wishes to
take such action must move to reopen its time to do so and set forth with particularity
detailed facts demonstrating that its failure to timely act was the result of excusable
neglect. See Fed. R. Civ. P. 6(b)(1)(B); Gaylord Entm’t, 2000 WL 33406990, at *6;
TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (“TBMP”) § 509 (2026).
In determining whether the failure to act is the result of excusable neglect, the Board
must take into account all relevant circumstances surrounding the moving party’s
omission or delay, including: (1) the danger of prejudice to the non-moving party; (2)
the length of the delay and its potential impact on judicial proceedings; (3) the reason
for the delay, including whether it was within the reasonable control of movant; and
(4) whether movant acted in good faith. Pioneer Inv. Serv. Co. v. Brunswick Assoc.
Ltd. P’ship, 507 U.S. 380, 396-97 (1993); Pumpkin Ltd. v. Seed Corps, No. 91099224,
1997 WL 473051, at *5 (TTAB 1997).
Turning first to the third factor, Opposer states that its counsel formed “the
opinion that the final brief was not due until later in the proceedings,”5 presuming
that “the ‘Plaintiff’s Opening Brief Due’ on February 20, 2026 referred to another
brief exclusively related to what happened at trial.”6 No additional details are
provided regarding how Opposer’s counsel arrived at this misunderstanding.
Trademark Rule 2.128(a)(1) is clear that “[t]he brief of the party in the position of
5 6 TTABVUE 2, ¶ 3.
6 Id. at 3, ¶ 6.

Opposition No. 91294344
4
plaintiff shall be due not later than sixty days after the date set for the close of
rebuttal testimony.” 37 C.F.R. § 2.128(a)(3). The February 20, 2026 deadline to file
Opposer’s main brief was set in accordance with this rule. Since the
docketing/calendaring of dates is undoubtedly a function within the control of
Opposer and its chosen counsel, and since “[s]trict compliance with the Trademark
Rules of Practice, and where applicable the Federal Rules of Civil Procedure, is
required of all parties, whether or not they are represented by counsel,” see
McDermott v. S. F. Women’s Motorcycle Contingent, No. 91169211, 2006 WL 2682345,
at *1, n.2 (TTAB 2006), aff’d, 240 F. App’x 865 (Fed. Cir. 2007), in the absence of any
details to demonstrate otherwise, the Board necessarily finds this factor to weigh
against a finding of excusable neglect. See Gaylord Entm’t, 2000 WL 33406990, at *6
(“We cannot say that [former counsel’s] inaction was not within the reasonable control
of opposer, who should have maintained some communication with former trademark
counsel about this case.”).
On the questions of prejudice and length of delay, however, these factors favor
Opposer. Opposer’s delay in filing its main brief was only eighteen days, and, taking
Opposer’s counsel’s misunderstanding as true, see 37 C.F.R. § 11.18(b)(1), only seven
days after the Board’s correction of counsel’s misunderstanding of the due date for
Opposer’s opening brief. Had Applicant opted to waive its objection as to the brief’s
untimeliness in exchange for additional time to file its main brief, there would have
been minimal impact on these proceedings. If, as Applicant contends, its primary

Opposition No. 91294344
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concern was the “delay” in the proceeding,7 Applicant would have been better served
to weigh the benefit versus the cost of engaging in motion practice, which has resulted
in a much longer delay and disruption of the proceeding schedule. As to the question
of prejudice, Applicant has not pointed to loss of witnesses or evidence, or other
circumstances constituting prejudice.8 See S. Indus. Inc. v. Lamb-Weston Inc., No.
92025580, 1997 WL 818018, at *4 (TTAB 1997). Thus, in view of the short delay in
Opposer’s filing and the lack of prejudice from such delay, the Board finds the first
and second factors to strongly favor Opposer.
Finally, although Applicant finds Opposer’s misunderstanding of the schedule
suspect,9 Applicant’s arguments are nothing more than speculation that Opposer’s
failure to file its main brief amounted to willful conduct. Moreover, we see nothing in
the record that would cause us to doubt the veracity of Opposer’s statement that its
counsel misunderstood the deadlines in the proceeding or that would otherwise
suggest willfulness. We find that the fourth factor is neutral.
Here, the short period of delay, the lack of prejudice, and the lack of any indication
of willfulness together outweigh Opposer’s inadequate explanation for a delay that
was reasonably within its control. Though the question is a close one, we are
persuaded that, under the particular circumstances presented herein, Opposer’s
7 7 TTABVUE 4, ¶ 9.
8 See id. (Applicant argues, without more, that the delay would “prejudice Applicant’s
interests.”).
9 7 TTABVUE 3, ¶¶ 6-7 (Applicant argues that Opposer’s “claimed misunderstanding of the
briefing deadline does not establish excusable neglect” and that Opposer’s “subjective
understanding” would “unilaterally, and without justification, extend deadlines.”).

Opposition No. 91294344
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neglect in timely filing its main brief is excusable. Opposer’s motion to reopen its time
to file its main brief is granted, and Opposer’s main brief is accordingly accepted.
Resumption is Unnecessary
Because the Board’s order to show cause issued prior to the due date for
Applicant’s brief, were there any need to resume this proceeding, we would do so by
resetting the time for Applicant to file its brief. However, our review of the evidence
of record10 and the admissions contained in Applicant’s answer has revealed that
there is no need to obtain a brief on the merits from Applicant.
By way of its answer, Applicant admits the following allegations in the Notice of
Opposition:
• “Opposer is a company dedicated to provide communication services via fiber-
optic networks and via multinational telecommunication networks, and to
provide co-location services for voice, video and data communications
applications”;11
• “Opposer was the owner of . . U.S. Registration Number 5,279,172”;12
• “[US Registration Number 5279172] was cancelled”;13
• “Opposer filed . . . U.S. Serial No. 98/454,362”;14 and,
• “Meanwhile, Applicant, a company which, upon information and belief, is
dedicated to the storage, packing, and shipping of goods ordered through an
online retail store, filed Applicant’s Application on September 18, 2023, on
10 Opposer relies, in its trial brief, solely on the same six exhibits submitted with its notice of
opposition, as if each of these exhibits is in the record. 6 TTABVUE 5-15. Although Opposer
has requested to reopen its time to file its main brief, it has not sought to reopen its trial
period.
11 4 TTABVUE 2, ¶ 1.
12 Id., ¶ 2.
13 Id., ¶ 3.
14 Id. at 3, ¶ 6.

Opposition No. 91294344
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which it seeks to register the mark “OCEAN DRIVE LOGISTICS 787HUB” to
be used in its online shipping and delivery business.”15
Opposer attached six numbered exhibits to its notice of opposition, comprised of
copies of the following:
1. Information from the electronic database records of the Office showing the
current status (cancelled) and title (record owner listed as Prepa Networks,
LLC) for Registration No. 5279172;
2. Opposer’s certificate of amendment of corporate name;
3. Information from the electronic database records of the Office showing the
current status and title for Opposer’s Application Serial No. 98454362;
4. An electronic database record of the Office for the involved application;16
5. Applicant’s certificate of formation; and,
6. A table containing data.
As a general rule, any exhibits attached to a pleading are not in evidence and must
be identified and introduced in evidence as an exhibit during the period for the taking
of testimony. Trademark Rule 2.122(c), 37 C.F.R. § 2.122(c). An exception to this
general rule is found in Trademark Rule 2.122(d)(1), by which “[a] registration of the
opposer . . . pleaded in an opposition . . . will be received in evidence and made part
of the record if the opposition . . . is accompanied by . . . a current copy of information
from the electronic database records of the Office showing the current status and title
of the registration.” 37 C.F.R. § 2.121(d)(1). The exception of Rule 2.122(d)(1) includes
cancelled registrations, such as the information for Opposer’s pleaded Registration
15 Id., ¶ 7.
16 The file of the involved application is already of record, without the need for any action by
the parties. Trademark Rule 2.122(b)(1), 37 C.F.R. § 2.122(b)(1).

Opposition No. 91294344
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No. 5279172. See TBMP § 704.03(b)(1). The exception of Rule 2.122(d)(1) does not
include Opposer’s pleaded application, however, even where Applicant has admitted
that Opposer filed the application, where the application has not registered prior to
the close of the testimony periods.17 See UMG Recordings Inc. v. O’Rourke, No.
91178937, 2009 WL 4085624, at *3-4 (TTAB 2009) (applicant admitted opposer’s
ownership of pleaded application for which registration issued after applicant filed
its brief; admission did not make resulting registration automatically of record and
registration still had to be introduced at trial).
17 Even if the Board considered Opposer’s pleaded application of record, it would provide
Opposer with a constructive use date of March 18, 2024, which is subsequent to the
constructive use date of the involved application, which is September 18, 2023. See Cent.
Garden & Pet Co. v. Doskocil Mfg. Co., No. 91188816, 2013 WL 4635990, at *5 and *5, n.13
(TTAB 2013) (contingent on the application proceeding to registration, “when an application
. . . is of record, the party may rely on the filing date of the application for registration, i.e.,
its constructive use date . . . without further proof . . . to establish priority.”). Neither the date
of first use alleged in Opposer’s pleaded application, see 1 TTABVUE 16, nor the date of first
use alleged in the involved application, is evidence on behalf of either party; rather, a date of
use of a mark must be established by competent evidence. Trademark Rule 2.122(b)(2),
37 C.F.R. § 2.122(b)(2). Accordingly, Opposer could not establish priority for its likelihood of
confusion ground, see Trademark Act Section 2(d), nor that its mark was famous prior to
Applicant’s adoption of its mark for Opposer’s dilution claim, see Coach Servs. Inc. v. Triumph
Learning LLC, 668 F.3d 1356, 1372 (Fed. Cir. 2012) (dilution requires proof that: (1) opposer’s
mark is a famous mark that is distinctive; (2) opposer’s mark became famous prior to
applicant’s use of its mark; and (3) use of applicant’s mark is likely to cause dilution of
opposer’s pleaded mark by blurring or tarnishment). At best, had Opposer’s pleaded
application been made of record, it would provide some support for a finding as to Opposer’s
entitlement to a statutory cause of action. See Plumrose Holding Ltd. v. USA Ham LLC, No.
91272970, 2025 WL 248763, at *12 (TTAB 2025) (“[T]he suspension of Opposer’s applications
in view of Applicant’s prior-pending application independently statutorily entitles Opposer
to file this proceeding.”), appeal docketed, No. 25-1741 (Fed. Cir. May 6, 2025); Hole in 1
Drinks, Inc. v. Lajtay, No. 92065860, 2020 WL 859853, at *4 (TTAB 2020) (“Once a plaintiff
has shown [entitlement to a statutory cause of action] on one ground, it has the right to assert
any other ground in a cancellation proceeding.”) (citations omitted).

Opposition No. 91294344
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Accordingly, in addition to the pleadings, the evidence of record consists solely of
pleaded cancelled Registration No. 5279172, which Applicant admits was owned by
Opposer, and the file of the involved application. See Trademark Rule 2.122(c).
A cancelled registration is not evidence of anything, however, except that the
registration issued; it is not evidence of any presently existing rights in the mark
shown in the registration, or that the mark was ever used. See Action Temp. Servs.
Inc. v. Labor Force Inc., 870 F.2d 1563, 1566 (Fed. Cir. 1989) (“a canceled registration
does not provide constructive notice of anything”); see also A&H Sportswear Co. v.
Yedor, No. 91235843, 2019 WL 1453071, at *6, n.4 (TTAB 2019) (“[A] cancelled
registration is not entitled to any of the statutory presumptions of Section 7(b) of the
Trademark Act[, 15 U.S.C. § 1057(b)]”); Kemi Organics, LLC v. Gupta, No. 92065613,
2018 WL 2230555, at *6 (TTAB 2018) (a cancelled registration is only evidence that
the registration issued, and is not evidence of use of the mark at any time); TBMP
§ 704.03(b)(1).
In consequence of the lack of any evidence of record for Opposer to establish, at
the very least, prior use of its pleaded mark,18 there is no evidence of record sufficient
to make a prima facie case for Opposer on either its ground of likelihood of confusion
or its ground of dilution. See, e.g., Hoover Co. v. Royal Appliance Mfg. Co., 238 F.3d
1357, 1360 (Fed. Cir. 2001) (“In opposition proceedings, the opposer bears the burden
of establishing that the applicant does not have the right to register its mark”).
18 See n. 17, supra.

Opposition No. 91294344
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Decision
Accordingly, judgment is entered against Opposer and the opposition is
dismissed with prejudice.