Brewer Brothers, Inc v. BENEFIT Co., Ltd.

tab Mailed: August 19, 2026
Cancellation No. 92085207
Brewer Brothers, Inc
v.
BENEFIT Co., Ltd.
Before Johnson, Deputy Chief Administrative Trademark Judge,
and Larkin and Casagrande, Administrative Trademark Judges.
By the Board:
The time for Petitioner to file a brief on the case having passed, the Board issued
an order on March 19, 2026, directing Petitioner to show cause why the Board should
not treat the failure to file a brief as a concession of the case under Trademark Rule
2.128(a)(3). 9 TTABVUE. Now before the Board is Petitioner’s combined response and
motion for relief to file a brief, filed March 30, 2026. 10 TTABVUE.1 On April 13,
2026, Petitioner filed its trial brief. 12 TTABVUE.
1 The certificate of service for this submission was filed March 31, 2026. 11 TTABVUE. On
May 27, 2026, Respondent filed a response to Petitioner’s response to the show cause order.
15 TTABVUE. This response is untimely and receives no consideration. See Trademark Rule
2.127(a), 37 C.F.R. § 2.127(a).
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

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2
I. Background
Respondent owns U.S. Registration No. 6382640 for the mark
for “Spectacles, namely, eyeglasses and swimming goggles, diving goggles, snow
goggles and goggles for sports; sunglasses; cases and protective films for smart
phones,” in International Class 9 and “sports equipment, namely, surfboards, fins for
surf boards, leashes for surf boards,” in International Class 28.2
Petitioner filed a petition for cancellation on the ground of likelihood of confusion
under Trademark Act Section 2(d), 15 U.S.C. § 1052(d), with its registered mark,
, with SURFBOARDS disclaimed, for “clothing, namely, t-shirts,” in
International Class 25 and “surfboards, sailboards,” in International Class 28.3
1 TTABVUE 1-2. Respondent, in its answer, admitted that the USPTO has denied
Petitioner’s pending applications, but otherwise denied the salient allegations in the
petition for cancellation. 4 TTABVUE.
Petitioner’s testimony period closed on September 17, 2025 (7-8 TTABVUE) with
Petitioner neither taking testimony nor filing any evidence. After Petitioner failed to
file a brief in the case by the March 1, 2026 deadline, the Board issued an order to
show cause under Trademark Rule 2.128(a)(3). 9 TTABVUE.
2 Registered June 15, 2021.
3 U.S. Registration No. 1753982, registered February 23, 1993.

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3
Petitioner’s March 30 response to the show cause order explained the
circumstances that led to Petitioner’s failure to timely file a brief and asked that the
Board allow Petitioner to file a brief on or before April 18, 2026. 10 TTABVUE 6.
Petitioner did not request reopening of its testimony period.
II. Show Cause Order 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 parties have entered into a
final settlement of the matter but have neglected to notify the Board thereof, or where
the plaintiff has lost interest in the case. However, it is not the general policy of the
Board to enter judgment against a plaintiff for failure to file a main brief on the case
if the plaintiff still wishes to obtain an adjudication of the case on the merits. Conopco,
Inc. v. Transom Symphony Opco, LLC, No. 91256368, 2022 WL 874335, at *2
(TTAB 2022); Vital Pharms. Inc. v. Kronholm, No. 91181806, 2011 WL 3381379, at
*2 (TTAB 2011). If the plaintiff responds to a Rule 2.128(a)(3) show cause order
indicating that it has not lost interest in the case, the Board generally will issue an
order deeming the show cause order discharged and will not enter judgment against
plaintiff based on lack of interest. Vital Pharms. Inc., 2011 WL 3381379 at *2. That
is the case here. Petitioner’s March 30 response shows that Petitioner has not lost
interest in the case. Accordingly, the Board’s March 19, 2026 show cause order is
discharged.

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4
III. Time to File a Brief is not Reopened
The fact that an order to show cause under Trademark Rule 2.128(a)(3) has been
discharged does not, however, automatically result in a resetting of time to introduce
evidence or file a brief. See Conopco, Inc., 2022 WL 874335, at *2 (“Even where a
plaintiff has shown that it is still interested in having the Board decide the case on
its merits in response to a show cause order under Trademark Rule 2.128(a)(3) . . .
expired deadlines are not necessarily reset.”). A party seeking to reopen an expired
period must, under Fed. R. Civ. P. 6(b)(1)(B), show excusable neglect. See also TBMP
§§ 509.01(b)(1), 534, and 536.
A showing of excusable neglect requires the Board to consider four factors to
determine whether a party’s neglect is excusable. They are: (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 the moving party; and, (4) whether the moving party has acted
in good faith. See Pioneer Invest. Servs. Co. v. Brunswick Assocs. L.P., 507 U.S. 380,
395 (1993).
We begin with the third factor, the reason for the delay and whether it was within
the reasonable control of Petitioner. In its response, Petitioner asserts that its failure
to file its brief “resulted from a change in counsel and inadvertent calendaring error.”
10 TTABVUE 2. Petitioner explains that the parties were engaged in settlement
negotiations from June 2024 to March 2026 before reaching an impasse. Id. at 2-3. In
January 2025, another attorney, Charles Ferrari, “assumed primary responsibility

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for managing the case.”4 Id. at 3. Mr. Ferrari accepted a new position in October 2025
and thereafter, Mr. Brewer “lost track of the applicable briefing schedule” and “[i]n
hindsight, Mr. Brewer acknowledges that it was an error to discontinue his direct
oversight of the procedural posture of the case.” Id. at 3-4.
It was Petitioner’s responsibility to correctly docket and keep track of the case
schedule and its failure to do so was completely within Petitioner’s reasonable control.
Baron Philippe de Rothschild S.A. v. Styl-Rite Optical Mfg. Co., No. 91095170, 2000
WL 1300412, at *4 (TTAB 2000) (incorrect docketing of deadlines is wholly within
party’s reasonable control and does not constitute excusable neglect); Pumpkin Ltd.
v. Seed Corps, No. 91099224, 1997 WL 473051, at *6-7 (TTAB 1997) (failure to docket
trial dates was wholly within the reasonable control of opposer); Coach House Rest.,
Inc. v. Coach and Six Rests., Inc., 1984 WL 62820, at *2 n.2 (TTAB 1984) (no excusable
neglect based on docketing errors and absence of counsel from the office). Petitioner
is the plaintiff in this proceeding and has responsibility for moving forward on the
established schedule. See Atlanta-Fulton Cty. Zoo Inc. v. DePalma, No. 91098819,
1998 WL 104306, at * 3 (TTAB 1998). Thus, we find that this factor weighs heavily
against a finding of excusable neglect.
With respect to the first Pioneer factor, there is no evidence of prejudice to
Respondent, such as lost evidence or witnesses. Pumpkin, 1997 WL 473051 at *7.
This factor therefore favors a finding of excusable neglect.
4 No change of correspondence or attorney was filed with the Board.

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With respect to the second Pioneer factor, namely the length of the delay and its
potential impact on proceedings, the Board must evaluate the total length of the delay
-- including the time for the Board to consider the pending motion. Coffee Studio v.
Reign LLC, No. 92066245, 2019 WL 990243, at *3 (TTAB 2019) (citing Pumpkin,
1997 WL 473051 at *7). Since the brief was due March 1, 2026, this has resulted in a
nearly six-month delay in the trial schedule. The Board and the parties to proceedings
generally have an interest in minimizing the time and resources they must direct to
briefing and adjudicating motions, particularly a preventable motion to reopen due
to a plaintiff’s failure to present its case. Hewlett-Packard Co. v. Olympus Corp., 931
F.2d 1551, 1554 (Fed. Cir. 1991) (finding no excusable neglect and stating that
“[w]hile it is true that the law favors judgments on the merits wherever possible, it is
also true that the Patent and Trademark Office is justified in enforcing its procedural
deadlines”). The impact of the delay upon this proceeding is not insignificant; thus,
this factor also weighs against a finding of excusable neglect.
With regard to the fourth Pioneer factor, we find no evidence in the record of bad
faith on the part of Petitioner. Accordingly, the fourth Pioneer factor is neutral.
The reason for the delay often is the crucial factor in an excusable neglect analysis
and that is the case here. See Luster Prods., Inc. v. Van Zandt, No. 91202788, 2012
WL 6115928, at *2 (TTAB 2012) (citing Pumpkin, 1997 WL 473051, at *6 n.7). On
balance, the reason for the delay and the impact on the proceedings outweigh the lack
of any prejudice to Respondent and the fourth Pioneer factor, which is neutral. See,
e.g., Vital Pharms., 2011 WL 3381379, at *4 (finding no excusable neglect based on

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second and third factors, with third weighted heavily in the analysis). Thus, the
Board finds that Petitioner has failed to establish excusable neglect. Accordingly,
Petitioner’s motion to reopen time to file a brief is denied.
We acknowledge that Petitioner’s March 30 Response stated that “Petitioner has
evidence to be presented in the underlying case.” 10 TTABVUE 5. As noted, however,
Petitioner filed nothing during its testimony period and has not requested to re-open
that period. While Petitioner attached two declarations with embedded documentary
exhibits to its petition, Trademark Rule 2.122(c), 37 C.F.R. § 2.122(c), provides, in
pertinent part: “an exhibit attached to a pleading is not evidence on behalf of the
party to whose pleading the exhibit is attached, and must be identified and
introduced in evidence as an exhibit during the period for the taking of testimony.”
Because the attachments to the petition are not of record, there is no evidence
supporting Petitioner’s claim in the record.
IV. Conclusion
Because Petitioner’s trial period has expired and Petitioner has not submitted any
evidence, and because we reject Petitioner’s untimely trial brief, the petition for
cancellation is hereby dismissed with prejudice for failure of proof. Cunningham
v. Laser Golf Corp., 222 F.3d 943, 951 (Fed. Cir. 2000) (plaintiff must prove its claim
by a preponderance of the evidence).