(a) If the time for taking testimony by any party in the position of plaintiff has expired and it is clear to the Board from the proceeding record that such party has not taken testimony or offered any other evidence, the Board may grant judgment for the defendant. Also, any party in the position of defendant may, without waiving the right to offer evidence in the event the motion is denied, move for dismissal on the ground of the failure of the plaintiff to prosecute. The party in the position of plaintiff shall have twenty days from the date of service of the motion to show cause why judgment should not be rendered dismissing the case. In the absence of a showing of excusable neglect, judgment may be rendered against the party in the position of plaintiff. If the motion is denied, testimony periods will be reset for the party in the position of defendant and for rebuttal.
(b) If no evidence other than Office records showing the current status and title of plaintiff's pleaded registration(s) is offered by any party in the position of plaintiff, any party in the position of defendant may, without waiving the right to offer evidence in the event the motion is denied, move for dismissal on the ground that upon the law and the facts the party in the position of plaintiff has shown no right to relief. The party in the position of plaintiff shall have twenty days from the date of service of the motion to file a brief in response to the motion. The Trademark Trial and Appeal Board may render judgment against the party in the position of plaintiff, or the Board may decline to render judgment until all testimony periods have passed. If judgment is not rendered on the motion to dismiss, testimony periods will be reset for the party in the position of defendant and for rebuttal.
(c) A motion filed under paragraph (a) or (b) of this section must be filed before the opening of the testimony period of the moving party, except that the Trademark Trial and Appeal Board may in its discretion grant a motion under paragraph (a) even if the motion was filed after the opening of the testimony period of the moving party.
[48 FR 23141, May 23, 1983, as amended at 51 FR 28710, Aug. 11, 1986; 81 FR 69985, Oct. 7, 2016]
Notes of Decisions
Hewlett-Packard Co. v. Olympus Corp., 931 F.2d 1551 (Fed. Cir. 1991).
· cites it 7× “Olympus subsequently filed a cross-motion, pursuant to 37 C.F.R. § 2.132 (a) (1988), to dismiss for failure of Hewlett to prosecute its opposition.”
Sanyo Watch Co., Inc. v. Sanyo Elec. Co., Ltd., 691 F.2d 1019 (Fed. Cir. 1982).
· cites it 5× “64,079 with prejudice, pursuant to a motion under 37 CFR 2.132(a), 1 because of appellant’s failure to offer evidence to support the allegations of the Notice of Opposition.”
Game Plan, Inc. v. Uninterrupted Ip, LLC (Fed. Cir. 2025).
· cites it 2× “Further, under 37 C.F.R. § 2.132 (a), [i]f the time for taking testimony by any party in the position of plaintiff has expired and it is clear to the Board from the proceeding record that such party has not taken testimony or offered any other evidence, the Board may grant…”
Mattel, Inc. v. Henson, 88 F. App'x 401 (Fed. Cir. 2004).
· cites it 2× “Second, Henson’s motion to dismiss was pursuant to 37 C.F.R. § 2.132 (a), which provides in pertinent part that [i]f the time for taking testimony by any party in the position of plaintiff has expired and that party has not taken testimony or offered any other evidence, any…”
Staub Design, LLC v. Carnivale, 625 F. App'x 993 (Fed. Cir. 2015).
“Carnivale filed in the Trademark Office a notice of a pending civil action and a motion to dismiss, which the Board construed as a motion under 37 C.F.R. § 2.132 (b). On October 18, 2007, the Board ordered suspension of the cancellation proceedings pending the outcome of the…”
— 37 C.F.R. § 2.132(a) — 2 cases
Sanyo Watch Co., Inc. v. Sanyo Elec. Co., Ltd., 691 F.2d 1019 (Fed. Cir. 1982).
“64,079 with prejudice, pursuant to a motion under 37 CFR 2.132(a), 1 because of appellant’s failure to offer evidence to support the allegations of the Notice of Opposition.”
Hewlett-Packard Co. v. Olympus Corp., 931 F.2d 1551 (Fed. Cir. 1991).
“Olympus subsequently filed a cross-motion, pursuant to 37 C.F.R. § 2.132 (a) (1988), to dismiss for failure of Hewlett to prosecute its opposition.”
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