If you’ve ever missed a deadline before the Trademark Trial and Appeal Board (TTAB), you’re not alone. Trademark disputes can move quickly, and even the most diligent attorneys may occasionally miscalculate a due date or lose track of a filing. But the good news is that a missed deadline at the TTAB doesn’t always mean game over. In fact, the Board provides several structured ways to recover, provided you act promptly and understand the procedural requirements. This article explores the real-world strategies for responding to missed deadlines, default notices, and other procedural setbacks—while incorporating the latest TTAB tips to help practitioners avoid lasting consequences.

Understanding the Stakes in TTAB Default Situations

The TTAB governs both ex parte appeals (disputes between trademark applicants and examiners) and inter partes proceedings (disputes between private parties, such as oppositions and cancellations). In inter partes matters, the most common default scenarios occur when a defendant fails to timely file an answer to a notice of opposition or petition for cancellation. Once the answer deadline passes, the TTAB typically issues a notice of default about ten days later. If no response follows, the Board may enter judgment against the defaulting party, resulting in cancellation of a registration or denial of a pending application.

Importantly, TTAB rules don’t leave parties defenseless. The Board is generally liberal in accepting late filings if the party acts quickly and offers a valid justification. This philosophy aligns with broader TTAB goals of deciding cases on their merits rather than on procedural technicalities.

Moving Quickly After a Missed Deadline

If you’ve missed a deadline—particularly the deadline to answer a complaint—the first step is to assess how much time has passed and whether the Board has already issued a notice of default. Ideally, you should proactively file a late answer accompanied by either a stipulation from the opposing party or a motion to set aside default. According to TTAB tips, it is strongly recommended that parties contact their adversary to obtain consent for the late filing. In many cases, plaintiffs are willing to stipulate because the TTAB rarely denies a motion to accept a late-filed answer absent clear evidence of bad faith or repeated failures.

The sooner the party files the answer and accompanying motion (if needed), the better the chances of convincing the Board that the delay was excusable.

The Legal Standard: Good Cause vs. Excusable Neglect

The TTAB uses two distinct standards depending on the stage of the proceeding.

For missed deadlines where the time to act has not yet expired, a party may seek an extension of time by showing “good cause.” This standard is relatively lenient and focuses on whether the delay is reasonable and whether the request was made in good faith.

Once a deadline has passed, however, the standard becomes more demanding. A party must file a motion to reopen the deadline under the excusable neglect standard set forth in Rule 6(b) of the Federal Rules of Civil Procedure. The TTAB evaluates excusable neglect under the four-factor test outlined in the Supreme Court’s Pioneer decision:

1. The danger of prejudice to the opposing party

2. The length of the delay and its impact on the proceeding

3. The reason for the delay, including whether it was within the party’s control

4. Whether the party acted in good faith

The TTAB often grants motions to reopen when the delay is short, the proceeding has not been significantly disrupted, and the party has a plausible reason for the lapse. However, repeated missed deadlines, vague excuses, or unexplained inaction may doom the request.

Filing a Motion to Set Aside Default

When a notice of default is issued, the party must file a motion to set aside default under Rule 55(c) of the Federal Rules of Civil Procedure. The TTAB applies a three-prong test, considering whether the default was willful, whether there is a meritorious defense, and whether the other party would be prejudiced by setting aside the default.

The most important takeaway here is that the TTAB strongly disfavors default judgments and prefers to decide cases on the merits. Courts have long held that even weak defenses can qualify as “meritorious” for purposes of avoiding default. Thus, if the defaulting party files a motion with a plausible defense and some explanation for the missed deadline, the TTAB is likely to grant it.

Avoiding Further Pitfalls: TTAB Tips to Stay on Track

Recovering from a missed deadline is only half the battle. The TTAB expects parties to stay engaged once they’re back on the docket. Based on guidance from the TTAB’s July 2020 practice tips, attorneys should take several proactive steps after recovering from a missed deadline.

First, ensure all deadlines are properly calendared. Use docketing software with built-in alerts for TTAB proceedings, which often have non-negotiable timelines. Second, review communications settings to ensure emails from the USPTO or ESTTA aren’t blocked by spam filters. Many missed deadlines stem from never seeing the institution notice or motion.

Third, once the case is reinstated, be prepared to actively participate in the discovery conference and to file timely disclosures. Missing future deadlines—especially in a case where default was previously entered—can give the impression of disorganization or bad faith, which may influence how the Board evaluates future motions.

What If You’re the Opposing Party?

If you’re the party who filed the complaint and the opposing side misses their deadline, it may be tempting to seek default judgment immediately. While that’s procedurally correct, the TTAB actually encourages plaintiffs to stipulate to late filings. A cooperative approach can save your client time and money by avoiding unnecessary motion practice.

Even if you oppose the late filing, you should still respond to the motion to set aside default and address each relevant factor under the applicable standard. You might argue, for example, that the delay caused tactical disadvantage or that the opposing party failed to explain why they ignored multiple notifications.

Final Thoughts: Procedure Shouldn’t Eclipse Substance

Deadlines are vital in TTAB proceedings, and missing one can trigger a cascade of consequences. But the Trademark Trial and Appeal Board is not in the business of issuing default judgments as punishment. Instead, it aims to adjudicate disputes based on their merits. That’s why, according to TTAB tips, practitioners who move quickly, show good cause, and communicate in good faith often succeed in getting proceedings back on track.

Default isn’t destiny—so long as you act fast, file the proper motion, and demonstrate that your client deserves a second chance.