Herbaceuticals, Inc. v. Xel Herbaceuticals, Inc.

                                            UNITED STATES PATENT AND TRADEMARK OFFICE
                                            Trademark Trial and Appeal Board
    This decision is a precedent of the     P.O. Box 1451
    Trademark Trial and Appeal Board.       Alexandria, VA 22313-1451



Baxley                                    Mailed:   March 7, 2008

                                          Cancellation No. 92045172

                                          Herbaceuticals, Inc.

                                               v.

                                          Xel Herbaceuticals, Inc.

Before Quinn, Rogers and Cataldo,
Administrative Trademark Judges

By the Board:

        Xel Herbaceuticals, Inc. ("Xel") owns six registrations

for various permutations of the mark XEL HERBACEUTICALS,

both as a word mark and with a design component.1

1
  Xel's registrations, each of which include a disclaimer of
HERBACEUTICALS, are as follows:
  

Registration No. 2845260,

 issued May 25, 2004, for the mark XEL
HERBACEUTICALS in standard character form and 

Registration No. 2860543,

 issued July 6, 2004, for the mark XEL HERBACEUTICALS and
design, both for "teas; herbal teas for food purposes, green
teas, black teas, iced teas, coffee based beverages containing
milk, herbal teas and chicory based coffee substitute; functional
foods, namely, chocolate-based ready-to-eat food bars, candy
bars, granola-based snack bars, bread, processed cereals,
breakfast cereals, biscuits and cakes; noodles and pasta; candy,
chewing gum, bubble gum; ice cream, frozen yogurt and ice cream
substitute; functional beverages, namely, grain-based food
beverage containing oats or oat extracts" in International Class
30;
  

Registration No. 2948354

 for the mark XEL HERBACEUTICALS in
standard character form and 

Registration No. 2948359

 for the mark
XEL HERBACEUTICALS and design, both issued May 10, 2005, and both
for "skin care preparations, namely, anti-wrinkle, moisturizing,
skin lightener and skin-firming creams, lotions, toners,
cleansers, moisturizers, gels, emulsions, serums, facial mask
packs, cleansers, eye treatments, and face and body powder,
creams; cosmetics, namely, foundation, blushers, blemish touch-up
sticks, mascara, eyeshadow, eyeliner, eye makeup, lipstick, lip
Cancellation No. 92045172

Herbaceuticals, Inc. ("HCI") seeks to cancel all six of

Xel's registrations on the grounds of:     1) fraud, based on

Xel's failure to have used its marks on all of the goods set

forth in the respective identifications of goods of the

involved registrations at the time it filed its statements

of use in the underlying applications; and 2) likelihood of

confusion with HCI's previously used and registered mark HCI

HERBACEUTICALS, INC. and design for "cosmetics, namely body

and facial skin lotions, creams and powders, body and facial

skin cleansers, bath oils and beads, shampoos and

conditioners" in International Class 3,2 and its previously

used mark HERBACEUTICALS for "cosmetic, dietary, and

cleansing products."




pencil, nail enamel, nail care treatments, sun block, after-sun
balm, deodorant, anti-perspirant, perfume and cologne; hair care
preparations, namely, hair shampoo, hair conditioner, hair cream
rinse, hair spray, hair mousse, hair treatments, hair gel, hair
moisturizer" in International Class 3;
  

Registration No. 2970979

 for the mark XEL HERBACEUTICALS in
standard character form and 

Registration No. 2970981

 for the mark
XEL HERBACEUTICALS and design, both issued July 19, 2005, and
both for "pharmaceuticals, namely, antihypertension agents,
diuretics, anorexigenics, fungistatic and fungicidal agents,
analgesics, hormonal agents, antitussive agents, sedatives,
cardiac agents, antimicrobial and antibacterial agents,
anticancer agents and medicine filled patches; herbal dietary
nutritional supplements and vitamins" in International Class 5.
2
  Such mark is shown in 

Registration No. 2585974

 in the following
form,




                                    .


                                2
Cancellation No. 92045172

     Xel, in its answer, denied the salient allegations of

the petition to cancel, asserted affirmative defenses,

including laches, and included a counterclaim to cancel

HCI's pleaded registration on the ground of genericness.

HCI denied the salient allegations of the counterclaim in

its answer.

     This case now comes up for consideration of HCI's

motion (filed December 5, 2006) for summary judgment on its

pleaded fraud claim with regard to all six of Xel's involved

registrations.   The motion has been fully briefed.

     In support of its motion, HCI contends that Xel

disregarded the truth as well as the seriousness of the oath

in the statements of use that it filed in connection with

the applications resulting in Xel's involved registrations;

and that Xel's pattern of conduct evinces a disregard for

Office practice and procedure and a desire to obtain

trademark rights to which it is not entitled.   In

particular, HCI contends that Xel was not using its marks on

all the goods identified in the respective notices of

allowance, when it filed its statements of use.

     With regard to Registration Nos. 2948354, and 2948359

for goods in International Class 3, HCI contends that Xel

knew or should have known that it was not using the subject

marks on serums, facial mask packs, face powder, body

powder, foundation, blushers, blemish touch-up sticks,



                              3
Cancellation No. 92045172

mascara, eye shadow, eyeliner, eye makeup, lipstick, lip

pencil, nail enamel, nail care treatments, perfume, cologne,

hair care preparations, hair shampoo, hair conditioner, hair

cream rinse, hair spray, hair mousse, hair treatments, hair

gel, and hair moisturizer in International Class 3 when it

filed its statements of use.       With regard to Registration

Nos. 2845260 and 2860543 for goods in International Class

30, HCI contends that Xel knew or should have known that it

was not using the mark on coffee based beverages containing

milk, chicory based coffee substitute, chocolate-based

ready-to-eat food bars, candy bars, granola-based snack

bars, bread, processed cereals, breakfast cereals, biscuits,

cakes, noodles, pasta, chewing gum, bubble gum, ice cream,

frozen yogurt, ice cream substitute, and grain-based food

beverage containing oats or oat extracts.      With regard to

Registration Nos. 2970979 and 2970981 for goods in

International Class 5, HCI contends that Xel knew or should

have known that it was not using the mark on any of the

goods recited therein.   HCI further contends that, by virtue

of its ownership of Registration Nos. 2585974 and 2822094

for the mark HCI HERBACEUTICALS, INC and design and its use

since 1992 of the mark HERBACEUTICALS for cosmetic, dietary

and cleansing products, it has standing to pursue this

cancellation proceeding.    Based on the foregoing, HCI

contends that there is no genuine issue of material fact



                               4
Cancellation No. 92045172

that Xel's involved registrations were obtained fraudulently

and that they should be cancelled.

     As evidence in support of its motion, HCI has submitted

a declaration of HCI's attorney, Abigail Rubenstein, through

which HCI makes of record: a) status reports from the

USPTO's Trademark Applications and Retrieval (TARR) database

for the involved registrations; b) copies of the statements

of use for the involved registrations; c) copies of Xel's

responses to certain discovery requests; d) documents

produced by Xel in discovery; e) certified copies of HCI's

Registration Nos. 2585974 and 2822094; and f) copies of

dictionary definitions of the words "tea," "tea bag," and

"pharmaceutical."

     In opposition, Xel contends that HCI does not have

standing to pursue this cancellation because the mark in its

pleaded registrations is generic; that the statements made

in its involved statements of use were not false because Xel

stated in the declaration, i.e., the "sworn portion"

thereof, that the marks were in use on "the goods/services,"

as opposed to "all the goods services;" that Xel's attorney,

who signed the statements of use, attested to the statements

made therein "on information and belief" and was not

required to have actual knowledge of each good on which the

marks were used; that Xel did not intend to receive

trademark rights to which it is not entitled; that any false



                             5
Cancellation No. 92045172

statements made in the statement of use are immaterial to

the goods on which the marks are in use; that the examining

attorney had determined that Xel was entitled to

registrations for the complete identifications of goods at

issue; that the proper remedy under the circumstances is

partial cancellation of the registrations; and that HCI is

estopped from pursuing the petition to cancel on the

doctrine of laches.

     As evidence in opposition to the motion for summary

judgment, Xel submitted a declaration of its attorney, Peter

M. de Jonge, through which Xel makes of record: a) copies of

documents produced by Xel in discovery which purportedly

show the word "herbaceutical(s)" used generically by others;

b) a copy of HCI's responses to Xel's interrogatories; and

c) a copy of a December 18, 2000 cease and desist letter

from HCI's former attorney to Xel's attorney that was

produced by HCI during discovery.

     In reply, HCI contends that it has standing to pursue

its petition to cancel regardless of whether or not the term

HERBACEUTICALS is generic; that Xel's attempts to divide the

statements of use into sworn and unsworn sections is

"absurd;" that Xel's false statements were material to the

registration of the subject marks; that the appropriate

remedy under the circumstances is complete cancellation

rather than amendment of the involved registrations; and



                             6
Cancellation No. 92045172

that laches is unavailable as an affirmative defense against

a claim of fraud.

     As an initial matter, Xel's contention that

petitioner's petition to cancel is barred by laches is

incorrect.   Laches is unavailable as an affirmative defense

against a claim of fraud.3    See Bausch & Lomb, Inc. v.

Leupold & Stevens Inc., 

1 USPQ2d 1497

, 1499 (TTAB 1986).

     We turn next to HCI's motion for summary judgment.

Summary judgment is an appropriate method of disposing of a

case in which there are no genuine issues of material fact

in dispute, thus leaving the case to be resolved as a matter

of law.   See Fed. R. Civ. P. 56(c).    A dispute as to a

material fact is genuine only if a reasonable fact finder

viewing the entire record could resolve the dispute in favor

of the nonmoving party.    See Old Tyme Foods Inc. v. Roundy's

Inc., 

961 F.2d 200

, 

22 USPQ2d 1542, 1544

 (Fed. Cir. 1992).

In deciding a motion for summary judgment, the Board must

view the evidence in the light most favorable to the

nonmovant, and must draw all reasonable inferences from

underlying facts in favor of the nonmovant.      See 

id.

3
  "[I]t is within the public interest to have registrations which
are void ab initio stricken from the register and that this
interest or concern cannot be waived by the inaction of any
single person or concern no matter how long the delay persists."
W.D. Byron & Sons, Inc. v. Stein Bros. Mfg. Co., 

146 USPQ 313

(TTAB 1965), aff'd, 

377 F.2d 1001

, 

153 USPQ 749

 (CCPA 1967).



                                7
Cancellation No. 92045172

     A party moving for summary judgment has the burden of

demonstrating the absence of any genuine issue of material

fact, and that it is entitled to entry of judgment as a

matter of law.   See Celotex Corp v. Catrett, 

477 U.S. 317 1986

; Sweats Fashions Inc. v. Pannill Knitting Co. Inc., 

833 F.2d 1560

, 

4 USPQ2d 1793

 (Fed. Cir. 1987).   When the moving

party's motion is supported by evidence sufficient to

indicate that there is no genuine issue of material fact,

and that the moving party is entitled to judgment, the

burden shifts to the nonmoving party to demonstrate the

existence of specific genuinely disputed facts that must be

resolved at trial.   The nonmoving party may not rest on the

mere allegations of its pleadings and arguments in response

to the motion, but must designate specific portions of the

record or produce additional evidence showing the existence

of a genuine issue of material fact for trial.   In general,

to establish the existence of disputed facts requiring

trial, the nonmoving party "must point to an evidentiary

conflict created on the record at least by a

counterstatement of facts set forth in detail in an

affidavit by a knowledgeable affiant."   Octocom Systems Inc.

v. Houston Computer Services Inc., 

918 F.2d 937

, 

16 USPQ2d 1783, 1786

 (Fed. Cir. 1990), citing Barmag Barmer

Maschinentfabrik AG v. Murata Machinery, Ltd., 

731 F.2d 831

,

221 USPQ 561, 564

 (Fed. Cir. 1984).



                              8
Cancellation No. 92045172

     As a preliminary matter, we find that there is no

genuine issue of material fact as to HCI's standing.       HCI

included as an exhibit to its motion for summary judgment a

certified copy of pleaded 

Registration No. 2585974

 showing

that the registration is in full force and effect and owned

by HCI.4   Such copy is sufficient to show that there is no

genuine issue of material fact that HCI has a real interest

in the proceedings, i.e., a personal interest in the outcome

of the proceeding, and a reasonable basis for a belief of

damage.    See, e.g., Trademark Act Section 14(a), 

15 U.S.C. Section 1064

(a); Cunningham v. Laser Golf Corp., 

222 F.3d 943

, 

55 USPQ2d 1842

 (Fed. Cir. 2000); Universal Oil Prod.

Co. v. Rexall Drug & Chem. Co., 

463 F.2d 1122

, 

174 USPQ 458

,

459 (CCPA 1972).   Even if we assume, for the sake of

argument, that the word "herbaceutical" is generic, this

does not void HCI's standing.

     We turn next to the merits of the motion for summary

judgment with regard to the pleaded fraud claim.      Based on

the record now before us, and for the reasons discussed

below, we conclude that HCI is entitled to entry of partial

summary judgment on the fraud claim.     HCI has made a prima


4
  HCI also relies upon its unpleaded 

Registration No. 2822094

 in
support of its claim to standing. HCI may not rely upon an
unpleaded registration in support of its claims. See TBMP
Section 314 (2d ed. rev. 2004). If HCI wants to rely upon its

Registration No. 2822094,

 it must seek leave to amend its
petition to cancel to rely on such. See Fed. R. Civ. P. 15(a);
TBMP Section 507.02(a) (2d ed. rev. 2004).


                                9
Cancellation No. 92045172

facie showing that there are no genuine issues of material

fact remaining for trial with regard to the asserted fraud

in the procurement of Registration Nos. 2845860, 2860543,

2948354, and 2948359, which showing Xel has failed to rebut.

We also find, however, with regard to remaining Registration

Nos. 2970979 and 2970981, that there are genuine issues of

material fact which remain for trial.

     An applicant may file a statement of use only when the

applicant has made use of the mark in commerce on or in

connection with all of the goods or services, as specified

in the notice of allowance, for which applicant seeks

registration, unless the statement of use asserts use on

only some goods or services and either deletes those goods

and/or services on which the mark is not in use or is

accompanied by a request in accordance with Trademark Rule

2.87 to divide out from the application the goods or

services to which the statement of use pertains.   See

Trademark Rule 2.88(c); TMEP Section 1109.03 (5th ed. 2007).

     Fraud in procuring a trademark registration occurs when

an applicant for registration knowingly makes false,

material representations of fact in connection with an

application to register.    See Torres v. Cantine Torresella

S.r.l., 

808 F.2d 46

, 

1 USPQ2d 1483

 (Fed. Cir. 1986).     A

party making a fraud claim is under a heavy burden because

fraud must be proved by clear and convincing evidence,



                               10
Cancellation No. 92045172

leaving nothing to speculation, conjecture, or surmise.    Any

doubt must be resolved against the party making the claim.

See Smith International, Inc. v. Olin Corporation, 

209 USPQ 1033

 (TTAB 1981).

     Statements regarding the use of the mark on the

identified goods and/or services are certainly material to

issuance of a registration.   See Hachette Fillipacchi Presse

v. Elle Belle, LLC, 

85 USPQ2d 1090

 (TTAB 2007) (fraud found

based on applicant's allegation of use of its mark for a

wide variety of clothing items for men, women and children

when mark had not been used for any identified items for men

or children and only for a limited number of items for

women); Sinclair Oil Corporation v. Kendrick, 

85 USPQ2d 1032

(TTAB 2007) (fraud found based on applicant's allegation of

use of its mark in connection with retail store services

when mark had only been used on a small number of product

samples, which were given away four years prior to the

filing of the application); Hurley International LLC v.

Volta, 

82 USPQ2d 1339

 (TTAB 2007) (fraud found based on

applicants' allegation of use of their mark for various

entertainment services and production services, when mark

had not been used anywhere in the world for some of the

services and had not been used in commerce with or in the

United States for other services); Standard Knitting Ltd. v.

Toyota Jidosha Kabushiki Kaisha, 

77 USPQ2d 1917

 (TTAB 2006)



                              11
Cancellation No. 92045172

(counterclaim petition for cancellation of petitioner's

pleaded registrations granted when fraud found based on

misrepresentation regarding use of the mark on most of the

goods identified in the filed applications); First

International Services Corp. v. Chuckles Inc., 

5 USPQ2d 1628

(TTAB 1988) (fraud found in applicant's filing of

application with verified statement that the mark was in use

on a range of personal care products when applicant knew it

was in use only on shampoo and hair setting lotion).

     Contrary to Xel’s assertion, partial cancellation is

not the appropriate remedy here.     Partial cancellation would

merely place Xel in the same position in which it would have

been had it filed statements of use which accurately

reflected the goods on which the marks were being used.

Rather, if fraud can be shown in the procurement of a

registration, the registration is void in the international

class or classes in which fraud based on nonuse has been

committed.5   See General Car and Truck Leasing Systems, Inc.

v. General Rent-A-Car Inc., 

17 USPQ2d 1398

, 1401 (S.D. Fla.



5
  Xel's reliance upon Grand Canyon West Ranch LLC v. Hualapai
Tribe, 

78 USPQ2d 1696

 (TTAB 2006), in support of its contention
that partial cancellation is the appropriate remedy under the
circumstances is misplaced. In that case, the Board found that,
in view of applicant's nonuse of the involved mark on some of the
services identified in the involved application, partial judgment
as to the goods for which use of the mark was not made was
appropriate. However, that was because no fraud claim had yet
been pleaded and the Board was only concerned with the question
of use or non-use for particular items.



                               12
Cancellation No. 92045172

1990), aff'g General Rent-A-Car Inc. v. General Leaseways,

Inc., Canc. No. 14,870 (TTAB May 2, 1998).

     This case is similar to Medinol Ltd. v. Neuro Vasx,

Inc., 

67 USPQ2d 1205

 (TTAB 2003).   In Medinol, a trademark

application was filed, the mark was published, a statement

of use was submitted, and a registration issued for “medical

devices, namely, neurological stents and catheters.”    In

response to a petition for cancellation, registrant admitted

in its answer that the mark was not used on stents.    The

Board stated as follows:

     The fraud alleged by petitioner is that respondent
     knowingly made a material representation to the
     USPTO in order to obtain registration of its
     trademark for the identified goods. There is no
     question that the statement of use would not have
     been accepted nor would registration have issued
     but for respondent's misrepresentation, since the
     USPTO will not issue a registration covering goods
     upon which the mark has not been used. (cites
     omitted).

Id. at 1208

.

     In response to requests for admission in this case, Xel

admitted that it was not using in commerce the marks

ultimately registered under Nos. 2948354 and 2948359 for the

following goods in International Class 3 even though they

were listed in the statements of use Xel filed:   serums,

facial mask packs, face powder, body powder, foundation,

blushers, blemish touch-up sticks, mascara, eye shadow,

eyeliner, eye makeup, lipstick, lip pencil, nail enamel,

nail care treatments, perfume, cologne, hair care


                             13
Cancellation No. 92045172

preparations, hair shampoo, hair conditioner, hair cream

rinse, hair spray, hair mousse, hair treatments, hair gel,

and hair moisturizer.    Xel further admitted that it was not

using in commerce the marks ultimately registered under Nos.

2845260 and 2860543 for the following goods in International

Class 30 even though they were listed in the statements of

use Xel filed:    coffee based beverages containing milk,

chicory based coffee substitute, chocolate-based ready-to-

eat food bars, candy bars, granola-based snack bars, bread,

processed cereals, breakfast cereals, biscuits, cakes,

noodles, pasta, chewing gum, bubble gum, ice cream, frozen

yogurt, ice cream substitute, and grain-based food beverage

containing oats or oat extracts.

       The nature of the goods identified in the notices of

allowance at issue was not complicated or highly technical.

The mark was either in use on all of those goods, or it was

not.    Notwithstanding that the marks at issue were not in

use on many of the goods identified in the respective

notices of allowance, Xel's attorney signed each of the

statements of use averring use for "all goods and/or

services listed in the application or Notice of Allowance."

Such statements were made in each case under penalty of

"fine or imprisonment, or both, ... and [knowing] that such

willful false statements may jeopardize the validity of the

application or any resulting registration…."    Even if Xel's



                               14
Cancellation No. 92045172

attorney was signing the statements of use based on

information and belief, he was clearly in a position to know

(or to inquire) as to the truth of the statements providing

reason to believe.   Statements under oath are made with a

degree of solemnity requiring thorough investigation prior

to signature and submission to the USPTO.    See 

id. at 1209

;

Patent and Trademark Office Rule 10.18(b)(2).

     Xel's apparent belief that statements of use are

divisible into unsworn and "sworn portion[s]" is incorrect.

A declaration relates to all statements in the document of

which the declaration is a part.   See Medinol Ltd. v. Neuro

Vasx, Inc., supra at 1209.   Treating statements of use as

divided into sworn and unsworn sections would encourage

applicants to conclude that they could make

misrepresentations willfully and without penalty.

     We reject Xel's contention that use of the wording "all

goods and/or services" in the body of the statements of use

and "the goods/services" in the supporting declaration gives

the respective phrases different meanings.    (emphasis added)

In the declaration for each statement of use, Xel's attorney

averred that Xel was "using the mark in commerce or in

connection with the goods/services identified above."    The

goods identified above in the body of the statements of use

are "all goods and/or services listed in the application or




                              15
Cancellation No. 92045172

Notice of Allowance."    Accordingly, the wording at issue is

synonymous.

     The undisputed facts in this case clearly establish

that Xel knew or should have known at the time it submitted

its statements of use that the mark was not in use on all of

the goods identified in the notices of allowance at issue.

Considering that Mr. de Jonge admitted in his declaration

that he did not have actual knowledge as to the goods on

which the involved marks were being used, he was obligated

to inquire.    See Patent and Trademark Office Rule

10.18(b)(2).    To the extent he did inquire, his inquiries

would appear to have been grossly insufficient.       See Medinol

Ltd. v. Neuro Vasx, Inc., supra at 1209.        The specific or

actual intent of Mr. de Jonge is not material to the

question of fraud.    "[P]roof of specific intent to commit

fraud is not required, rather, fraud occurs when an

applicant or registrant makes a false material

representation that the applicant or registrant knew or

should have known was false."        General Car and Truck Leasing

Systems, Inc. v. General Rent-A-Car Inc., supra.

While it is clear that not all incorrect statements

constitute fraud, the relevant facts in this record allow no

other conclusion.    We find that Xel’s material

misrepresentations made in connection with its statements of




                                16
Cancellation No. 92045172

use in the underlying applications for Registration Nos.

2845860, 2860543, 2948354, and 2948359 were fraudulent.

     With regard to Registration Nos. 2970979 and 2970981,

however, we note that, in responses to HCI's requests for

admission, Xel denied that it had not used the goods in

International Class 5 identified in the notices of allowance

when it filed the statements of use in the underlying

applications for those registrations.   We further note that,

in response to HCI's interrogatory in which Xel was asked to

identify each good sold under its involved marks, Xel

responded, in relevant part, that it "markets and sells

green tea related goods which have a variety of uses

including uses as antihypertension agents, diuretics,

anorexigenics, fungistatic agents, fungicidal agents,

analgesics, hormonal agents, antitussive agents, sedatives,

cardiac agents, antimicrobial and antibacterial agents,

anticancer agents, medicine filled patches, herbal dietary

supplements and vitamins...."    Based on these responses, we

find, resolving any doubt in favor of Xel as the nonmovant,

that there is a genuine issue of material fact as to whether

use of the mark on "green tea related goods" constitutes use

on the "pharmaceuticals" in International Class 5 identified

in the notices of allowance at issue, and as to whether

Xel's attorney had a reasonable basis for a belief that the

marks were being used in interstate commerce on such



                                17
Cancellation No. 92045172

"pharmaceuticals" when Xel filed the statements of use in

the underlying applications for those registrations.                     See

Maids to Order of Ohio Inc. v. Maid-to-Order Inc., 

78 USPQ2d 1899

 (TTAB 2006).             While we are inclined to doubt that use

of the marks on "green tea related goods" would constitute

use of those marks on "pharmaceuticals," that issue is one

for trial and not one for which HCI has shown a current

entitlement to judgment.

        In view thereof, HCI's motion for summary judgment is

granted with regard to Registration Nos. 2845860, 2860543,

2948354, and 2948359, but denied with regard to Registration

Nos. 2970979 and 2970981.                 Accordingly, Registration Nos.

2845860, 2860543, 2948354, and 2948359 will be cancelled in

their entireties upon final disposition of this case.6

Proceedings herein are resumed.                   Discovery and testimony

periods are reset as follows.

THE PERIOD FOR DISCOVERY TO CLOSE:                              March 21, 2008

30-day testimony period for HCI
Plaintiff in the cancellation to close:                          June 19, 2008

30-day testimony period for Xel as defendant in the
Cancellation and as plaintiff in the counterclaim to close:    August 18, 2008

30-day testimony period for HCI as defendant

6
  The parties are reminded that our decision granting partial
summary judgment is interlocutory in nature and may not be
appealed until a final decision is rendered in the proceeding.
See Copeland's Enterprises Inc. v. CNV Inc., 

887 F.2d 1065

, 

12 USPQ2d 1562

 (Fed. Cir. 1989).



                                            18
Cancellation No. 92045172


in the counterclaim and its rebuttal testimony
as plaintiff in the cancellation to close:                      October 17, 2008

15-day rebuttal testimony period for Xel as plaintiff
in the counterclaim to close:                                  December 1, 2008

Briefs shall be due as follows:
[See Trademark rule 2.128(a)(2)].

Brief for plaintiff in the cancellation shall be due:           January 30, 2009

Brief for defendant in the cancellation and as
Plaintiff in the counterclaim shall be due:                          March 1, 2009

Brief for defendant in the counterclaim and its reply
brief (if any) as plaintiff in the cancellation
shall be due:                                                       March 31, 2009

Reply brief (if any) for plaintiff in the
counterclaim shall be due:                                           April 15, 2009

        In each instance, a copy of the transcript of testimony

together with copies of documentary exhibits, must be served

on the adverse party within thirty days after completion of

the taking of testimony.                    Trademark Rule 2.l25.     An oral

hearing will be set only upon request filed as provided by

Trademark Rule 2.l29.




                                               19