Denial of Leave to Amend Cancellation Petition for Failing to Submit Filing Fee Arbitrary and Capricious
Fred Beverages, Inc. initially filed a petition to cancel Fred's Capital Management Co.'s trademark registration in a single class and submitted the requisite $300 fee with the petition to cancel. During the cancellation proceeding, Fred Beverages filed a motion for leave to amend its petition to seek cancellation with respect to four additional classes. The motion was fulling briefed and Fred Beverages did not submit any additional fee in connection with the motion.
The TTAB denied the motion for leave to amend solely on the basis that it was not accompanied by the fee required under Trademark Rules 2.111(c)(1) and 2.112(b) for filing petitions to cancel.
On appeal, the Federal Circuit reversed. There is no TTAB rule requiring that the statutory fee accompany a motion for leave to amend a pending petition for cancellation nor is there any such established practice. In addition, prior TTAB cases suggested that the statutorily required filing fee is not a ground for denying a motion for leave to amend. Consequently, having departed from established precedent "without a reasoned explanation," the TTAB's decision was reversed as arbitrary and capricious.
The case cite is Fred Beverages, Inc. v. Fred's Capital Mgmt. Co., No. 2010-1007 (Fed. Cir. May 12, 2010).
