Trademark Trial and Appeal Board proceedings are highly procedural, and even experienced brand owners and counsel can find themselves facing a default if deadlines are missed or filings are mishandled. Under the Trademark Trial and Appeal Board Manual of Procedure, specifically TBMP 312, defaults are not merely technical setbacks. They can have serious consequences that impact the outcome of an opposition or cancellation proceeding. Understanding how defaults occur, what legal standards apply, and how motions to set aside default work is essential for anyone involved in TTAB litigation.

Defaults before the TTAB most often arise when a party fails to timely file an answer, misses discovery obligations, or ignores a Board order. While the TTAB is not a court of general jurisdiction, it enforces its procedural rules strictly. The Board expects parties to actively participate in the proceeding and to monitor deadlines closely. When that does not happen, the Board has discretion to enter default judgment or take other adverse action.

What Constitutes a Default in TTAB Proceedings

A default in a TTAB case typically occurs when a respondent fails to file an answer to a notice of opposition or petition for cancellation within the prescribed time period. Under TTAB rules, an answer is generally due forty days after service of the pleading. If no answer is filed and no extension is requested, the opposer or petitioner may move for default judgment.

Defaults can also arise later in the proceeding. Failure to respond to discovery requests, failure to comply with Board orders, or failure to participate in mandatory conferences can all lead to sanctions. In more severe cases, those sanctions may include entry of default judgment. TBMP 312 gives the Board authority to manage its docket efficiently while balancing fairness to the parties.

Importantly, a default does not automatically mean the non-responding party loses its trademark rights. The Board must still determine whether default judgment is appropriate based on the circumstances and the record. However, the risk is significant, especially when no effort is made to explain or correct the failure.

The Legal Standard Under TBMP 312

TBMP 312 addresses motions to set aside default and provides guidance on how the Board evaluates such requests. The Board generally applies principles similar to those used in federal civil procedure. The focus is on whether there is good cause to excuse the default and whether setting it aside would prejudice the opposing party.

The Board looks at several factors when deciding whether to grant a motion to set aside default. These factors include whether the default was willful, whether the defaulting party has a meritorious defense, and whether the opposing party would be unfairly prejudiced if the case were reopened. No single factor is dispositive, and the Board evaluates the totality of the circumstances.

The TTAB has repeatedly emphasized that default judgments are disfavored when a case can be decided on the merits. That said, the Board will not excuse neglect that appears intentional or reckless. Simply stating that a deadline was overlooked, without more, is often not enough.

Filing a Motion to Set Aside Default

A motion to set aside default must be filed promptly after the defaulting party becomes aware of the issue. Delay can undermine the credibility of the request and suggest a lack of diligence. The motion should clearly explain why the default occurred and should be supported by declarations or other evidence when appropriate.

The explanation must demonstrate excusable neglect or good cause. Examples might include clerical errors, misunderstandings caused by procedural complexity, or extraordinary personal or business circumstances. The Board expects specificity. Vague explanations or unsupported assertions are unlikely to succeed.

Equally important is addressing the merits of the case. The defaulting party should articulate a plausible defense to the claims raised in the opposition or cancellation. This does not require proving the case in full, but it does require more than a conclusory denial. The Board wants assurance that setting aside the default would serve a meaningful purpose.

Prejudice to the Non-Defaulting Party

Under TBMP 312, prejudice is not presumed simply because a default is set aside. The opposing party must show that reopening the case would result in real harm, such as loss of evidence, faded witness memories, or significant additional expense caused by the delay. The mere fact that litigation would continue is not considered prejudice.

This aspect of the analysis often works in favor of the defaulting party, particularly when the motion is filed early and before discovery has progressed significantly. However, where a case has been pending for a long time or where deadlines have been repeatedly ignored, the Board may find that prejudice exists.

Practical Lessons for Trademark Owners and Practitioners

Defaults before the TTAB are often avoidable. Careful docket management, familiarity with TBMP deadlines, and proactive communication with the Board can prevent most issues. When a mistake does occur, swift action is critical. Ignoring the problem or hoping it will resolve itself almost always makes things worse.

TBMP 312 reflects the Board’s effort to balance procedural discipline with fairness. The rules are not designed to trap unwary litigants, but they do require attention and respect. Understanding how defaults work and how motions to set aside default are evaluated can make the difference between preserving a brand and losing valuable trademark rights.

For brand owners, a TTAB default can feel overwhelming, especially when trademark protection is central to the business. This is where experienced trademark counsel can provide clarity, assess the likelihood of relief, and take immediate steps to protect the brand. Your brand is everything, and procedural missteps should not be allowed to define its future.

Why Legal Guidance Matters in TTAB Default Situations

TTAB procedure is deceptively technical. Many defaults occur not because a party intended to abandon its case, but because it underestimated the complexity of Board practice. Having a legal advisor who understands TBMP 312 and TTAB precedent can help frame a persuasive motion and avoid repeating mistakes.

Defaults are not always fatal, but they are serious. The Board’s discretion cuts both ways. A well-prepared motion grounded in TBMP standards can reopen the door, while a poorly handled response can shut it permanently.

If you are facing a default or concerned about potential sanctions in a TTAB proceeding, seeking guidance early can preserve options that might otherwise disappear.