You’ll remember maybe that the Board gave Langdell 20 days
to challenge the District Court ruling or lose the trademarks.
Well, true to form, he has done nothing of the kind. With two days to go he has filed another three motions
(and there’s nothing that I can see that suggests he has filed anything in the District Court).
There’s a lot of verbiage in these. Take a deep breath and let’s go for it!
1) Motion for Board to reconsider its denial of Motion to Reverse division of Reg 2219837
This is the one where Langdell is trying to drag Future’s part of the trademark into the proceedings and get Future tarred with the fraud brush. Background is that the trademark was divided after the Board proceedings started, but before the Distrtict Court case. Langdell is clearly a bit miffed that this motion was flatly denied in a footnote.
He makes two main arguments.
First, that since Future’s opposition to his motion was dismissed as untimely, the motion was unopposed and should therefore be granted. That line fails entirely, since Langdell has forgotten that EA also
opposed the motion (on 24th October
) and their opposition still stands.
Second, and in line with his original argument, that the trademark should not have been divided while proceedings were active. He sort of has a point here and might have got away with it but for his own tactical naivety – you see, the registration had already been divided by the time he brought the District Court proceedings, so there’s no possible doubt that the District Court order refers only to Langdell’s share of the mark. Besides, he already argued this point before the Board and the motion was denied.
It’ll either be denied again, or more likely ruled out of order since the proceedings are suspended. I guess the latter, as that could be done in a sentence without needing any analysis.
2) Motion for the Board to reconsider it’s denial of Motion to reverse surrender of Registrations 3559342 & 2219837
This is the one where Langdell is trying to undo his surrender of two other marks that he claims are partly-owned by Future.
This is just a silly motion to bring, as the Board had already (on 25th August 2011
) vacated its previous order
to cancel these marks by voluntary surrender.
So this motion, even if granted, would achieve nothing. Probably why it got denied in the first place. Besides, like the first one, this motion is out of order because proceedings are suspended.
Now the biggie …
3) Response to the Board’s Order of 30 March 2012
This is dangerous for Langdell. It isn’t a proper motion, it is a direct challenge to a court order. Arguably he might be found in contempt (37 CFR 2.127 (f) which prevents the Board finding persons in contempt only applies to motions so far as I can tell).
It is a document stuffed full of falsehoods, despite the fact that he claims to have taken advice from some proper lawyers (Baker Hostetler who are not, though, representing him).
Originally Posted by Langdell para 1:
In its March 30, 2012 order the Board required Co-Registrant Edge Games Inc (“EDGE”) to file a motion in the District Court seeking “reconsideration, review or modification” or any other form of relief from the void District Court order of October 8, 2010.
No it didn’t. It simply said that unless he did so the trademarks would be cancelled. Different thing entirely.
Originally Posted by Langdell para 1:
However, what the Board required EDGE to do is impossible and hence unlawful, and certainly unfair and inequitable. It is not possible to seek relief from a void order
Yes it is. That’s pretty well exactly what Future did when they intervened in this cancellation case for example.
It’s beside the point anyway, because as I’ve rehearsed above
the District Court judgment is not void. It isn’t even apparently void.
Para 2 drifts off into asserting that Langdell has proper legal advice so his arguments should be taken seriously and has a sly dig at EA, claiming that they too are representing themselves (which isn’t true, they’re using an in-house attorney, which is entirely different).
Originally Posted by Langdell para 3:
we believe the Board’s order of March 30, 2012 is without precedent in the history of the Board
Quite probably. There’s only one Tim Langdell, and unusual times need unusual measures.
The remainder of the 10 or so pages bangs on interminably about what can and cannot be done with void judgments. All besides the point, since the judgment is not void.
The only argument that Langdell advances is that Future were "a necessary and an indispensable party" to the District Court proceedings. Again, for reasons I have gone through before that is probably not true, even if it were it would not necessarily void the judgment, and even if it did the place to challenge that is in the District Court not the Board. He does try to argue that the judgment is void on its face citing
Originally Posted by Plotitsa v Superior Court (1983) 140 Cal App 3d 755, 761:
“It is well settled that a judgment or order which is void on its face [is one] which requires only an inspection of the judgment-roll or record to show its invalidity”
And thereby shooting himself in the foot, because in order to establish Langdell’s argument you would need recourse to private contractual arrangements between Langdell and Future which were not on the record of the Court, or indeed of the USPTO, at the time.
The rest is tedious sludge and I am too tired to go through it now. EDIT: read the rest, see post #424 for the only other significant argument.
But like the others, this motion/response is out of order.
Let’s see what happens in a few days time.