TTAB’s Application Of “Excusable Neglect” Test Withstands Challenge

In FirstHealth of the Carolinas, Inc. v. CareFirst of Maryland, Inc., (No, 06-1148); February 27, 2007), a Federal Circuit panel affirms the Trademark Trial and Appeal Board’s dismissal of FirstHealth’s counterclaims to cancel trademarks registered by CareFirst, finding that the TTAB did not abuse its discretion in denying a motion by FirstHealth to reopen its testimony period to submit evidence in support of the counterclaims.

FirstHealth asserted that the TTAB abused its discretion in applying the test for “excusable neglect” to the facts surrounding FirstHealth’s delay in filing its motion to reopen the testimony period. The Court initially finds that the four-factor test adopted by the TTAB for determining “excusable neglect” is reasonable, and defers to that interpretation. The Court then agrees with the TTAB’s determination that FirstHealth’s reasons given for the delay “were wholly within FirstHealth’s reasonable control,” and that the TTAB’s findings are supported by substantial evidence.

FirstHealth also asserted that the undisputed facts of record prove the cancellation counterclaims even without the excluded evidence. The Court disagrees, stating that “without the properly excluded testimony evidence, the Board’s finding that FirstHealth failed to prove uncontrolled licensing or failure to use by a preponderance of the evidence is supported by substantial evidence.”