For parties engaged in trademark disputes, the Trademark Trial and Appeal Board (TTAB) serves as a critical venue for resolving oppositions, cancellations, and other inter partes proceedings. But for many participants—especially those new to TTAB practice—the procedural requirements can be confusing, and one of the most damaging missteps is failing to respond to TTAB notices on time.
A default judgment can derail an otherwise viable case, so understanding how to respond appropriately and promptly to Board notices is not only essential—it’s strategic. Whether you’re representing a client or handling a matter for your own business, following the right steps can prevent costly errors and protect your rights.
Understanding the Consequences of Default
Default in TTAB proceedings typically occurs when a party fails to respond to a notice of opposition or petition for cancellation by the deadline. Once a notice of institution is issued, the party receiving the notice—usually the applicant or registrant—has 40 days to file an answer. If this response is not submitted within that period, the Board may issue a notice of default.
Failing to respond to a TTAB notice doesn’t just slow your case down—it can result in the immediate loss of rights. The Board may enter a default judgment against the non-responding party, effectively ending the case in favor of the opposing side. This means the trademark application may be abandoned, or a registration could be canceled.
Why Missing a Deadline Happens More Often Than It Should
Despite how straightforward this timeline may seem, missing a TTAB deadline happens more often than many realize. There are several reasons why:
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Parties often confuse TTAB deadlines with those in federal court, expecting leniency or a reminder.
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Some applicants, particularly small businesses or pro se filers, may not fully understand the procedural rules.
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Changes in counsel or communication issues between attorneys and clients can lead to administrative oversights.
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Parties engaged in settlement discussions sometimes mistakenly believe those talks automatically pause the deadline schedule.
Regardless of the reason, the TTAB does not grant automatic grace periods. Understanding how to proactively address notices can prevent these mishaps.
How to Respond to a TTAB Notice of Institution
When you receive a notice of opposition or cancellation, the clock starts immediately. The most important step is to calendar the due date—40 days from the date of issuance—and take immediate action.
Begin by reviewing the claims carefully. If you are representing the applicant or registrant, determine whether the complaint contains allegations that warrant a formal defense. Drafting a timely answer is crucial. The answer should include direct responses to each numbered allegation in the complaint and, where appropriate, assert valid affirmative defenses. Be cautious about including boilerplate defenses like laches or estoppel unless they are legally justifiable in your case.
Do not assume that simply negotiating with the other party will delay your obligation to respond. Unless a formal motion to suspend is filed with the Board (and granted), deadlines remain in full force.
What to Do If You Miss the Deadline
If you realize that the deadline to file an answer has passed, all is not lost—but you must act quickly. First, check TTABVUE, the online case tracking system, to confirm whether a notice of default has been issued. If it has not, file your answer immediately and include a brief explanation as to why it was late. It’s also helpful to contact opposing counsel and ask for a stipulation permitting the late filing.
If the Board has already issued a notice of default, your next step is to file a motion to set aside the default. This motion should provide a factual explanation showing good cause—commonly known as “excusable neglect.” Under the TTAB’s interpretation of Rule 55 of the Federal Rules of Civil Procedure, the standard considers several factors, including:
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Whether the delay was willful;
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Whether setting aside the default would prejudice the other party;
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Whether the defaulting party has a meritorious defense;
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Whether the party acted promptly to correct the default.
Providing a concise, factual explanation and attaching your proposed answer can often convince the Board to lift the default and allow the case to proceed.
Practical TTAB Tips to Avoid Default
There are several practices that can help ensure you never face a TTAB default situation. First, make use of the ESTTA (Electronic System for Trademark Trials and Appeals) to manage filings efficiently. Once you receive a notice of opposition or cancellation, immediately docket all deadlines and prepare a timeline for necessary filings.
Second, stay in regular communication with clients or opposing counsel, especially if a change in representation or potential settlement is in the works. The TTAB does not automatically recognize informal agreements, so it’s important that any extensions, withdrawals, or suspensions be documented and filed through ESTTA.
Third, review the TTAB’s Trademark Board Manual of Procedure (TBMP). It outlines the necessary steps for filing answers, motions, and evidence, and offers detailed guidance on how to handle default situations. For legal practitioners, the TBMP is the authoritative source for staying in compliance with TTAB expectations.
Finally, consider filing your answer early rather than waiting until the deadline. Early filings give you room to fix technical issues or correct procedural missteps, which can easily occur when relying on electronic filing systems at the last minute.
When Legal Representation Makes a Difference
Many TTAB cases involve parties representing themselves, but the rules and nuances of procedure are not always intuitive. Retaining an experienced trademark attorney—especially one familiar with TTAB proceedings—can help prevent avoidable errors, ensure timely responses, and even identify potential defenses or counterclaims that a layperson might overlook.
Attorneys can also help facilitate stipulations, secure consented extensions, and navigate settlement discussions without compromising the client’s position. While the TTAB encourages self-representation, it also expects strict adherence to procedure, which makes professional legal guidance a significant advantage.
Conclusion
Avoiding default in a TTAB proceeding is all about vigilance, preparation, and timeliness. Whether you’re responding to a notice of opposition or cancellation, your ability to act promptly and properly can make or break your case. By following TTAB tips, using the ESTTA system wisely, and understanding the Board’s procedural expectations, you’ll position yourself or your client to succeed before the Trademark Trial and Appeal Board.
For businesses serious about protecting their trademarks, diligence at the outset can prevent long-term setbacks. Default is avoidable—and with the right approach, you can stay ahead of deadlines and focused on your trademark goals.