If You Don’t Know, Then Deny

El Encanto, Inc. V. La Tortilla Factory, Inc., [06-1198](Fed. Cir. 2006) [MICHEL, Lourie, Schall] The Federal Circuit affirmed the TTAB’s dismissal of an opposition because Opposer failed to introduce two of its registrations critical to the outcome.
SIGNIFICANCE: A denial for lack of knowledge is a denial, and a plaintiff must remember to prove all the elements of its case.
QUOTE: “While it is true that the law favors judgments on the merits wherever possible, it is also true that the Patent and Trademark Office is justified in enforcing its procedural [rules].”
BRIEF: The Opposer argued that the registrations should be considered because applicant had full notice of the registrations, since they were referenced in the Notice of Opposition, and attached as Exhibits, but Applicant’s answer stated that applicant was without sufficient information, and denied the allegations. The Federal Circuit said that “denials based on lack of knowledge or belief are valid denials” they effectively put the opposer on notice that its claim was being challenged, thereby requiring the opposer to prove its case. The Federal Circuit found that Opposer was on notice that it would have to prove its case, yet opposer failed to take any of the alternative measures to introduce the registrations into evidence, such as take testimony or file a notice of reliance on the registrations, provided for in 37 C.F.R. § 2.122(d)(2).