The Phillies Strike Out At The TTAB

If you are a fan of the Philadelphia Phillies you probably already know it has been a tough season. The team has lost more often than it has won and now the losing streak extends to the TTAB. See the recently published case The Phillies v. Phila. Consol. Holding Corp., T.T.A.B., No. 91199364, decided August 19, 2013, (precedential), at In this case the TTAB found that a request for 507 admissions is not per se oppressive or unreasonable, which is the standard for issuing a protective order under Fed.R.Civ.P.26 (c)(1).

The Phillies opposed applications for GREENPHLY (and design of a globe) and TEAMPHLY (and design of the Liberty Bell) for a variety of services, including insurance services, charitable fundraising services, and organizing community sporting and cultural events. The Notice of Opposition relied on 26 trademarks that covered a broad scope of goods and services. The Applicant served The Phillies with 507 requests for admission, requiring them to admit or deny whether it was selling or licensing specific goods and services under the pleaded marks. The Phillies responded by filing a motion for a protective order arguing in part that the requests were unduly burdensome. The TTAB declined to issue the protective order against all of the 507 requests on the ground that The Phillies did not show good cause as the number of requests was high because counsel for The Phillies chose to draft the Notice of Opposition broadly and plead 26 marks, many of which were cumulative in nature. The Board did however issue a protective order against 96 of the requests noting that those requests were duplicative or outside of the scope of discovery.

A lesson in The Phillies case is that one should be careful in drafting a Notice of Opposition and balance the benefits of including all possible registrations and applications against the disadvantages of overly complicating a case.  Pleading numerous trademark registrations and applications inevitably leads to a dramatic increase in the effort and costs associated with the discovery phase of a case. This may be unnecessary if the registrations and applications are duplicative in nature.