When you bear the burden of proof, you need competent evidence to prove your case.

The Petitioner in Oregon Grain Growers Brand Distillery Inc. v. Pitsokos, Cancellation No. 92076817 (TTAB Oct. 16, 2023), learned that lesson the hard way.

Petitioner sought to cancel Respondent's U.S. Registration 6274024 for the TORPEDO JUICE mark, identifying “Alcoholic beverages, except beer; Gin; Liquor; Rum” in International Class 33, based on nonuse.

“The registration of a mark that does not meet the use requirement is void ab initio.” Aycock Eng'g, Inc. v. Airflite, Inc., 560 F.3d 1350, 90 USPQ2d 1301, 1305 (Fed. Cir. 2009).

            To prevail on its claim of nonuse, Petitioner must prove that Respondent was not using the TORPEDO JUICE mark in commerce for the goods identified in Registration No. 6274024 as of the January 7, 2021 deadline for filing the statement of use.

To establish nonuse, Petitioner relied on Respondent's unverified interrogatory responses which were only signed by Respondent's prior counsel. The relevant interrogatory response stated that “zero” individuals in the US have been provided products under Respondent's TORPEDO JUICE mark prior to January 8, 2021. Petitioner argued that this interrogatory response was “an admission that his products were neither sold, nor transported, in commerce” and “the only probative evidence relating to the use [or nonuse] of Registrant's Mark.”

Unsigned Response is an Unverified Response 

Unfortunately for Petitioner, the interrogatory response was “not signed under oath by Respondent as required by Fed.R.Civ.P. 33(b)(1)(B), (3) and (5), and Petitioner never moved to compel a proper verification.”

            Under Rule 33, answers to interrogatories must be verified and must be signed by the person answering the interrogatory, not only by the party's attorney. “It has been stated that unsigned and unverified answers to interrogatories do not qualify as answers under Fed. R. Civ. P. 33.” Cabales v. U.S., 51 F.R.D. 498, 499 (S.D.N.Y. 1970), aff'd, 447 F.2d 1358 (2d Cir. 1971). Respondent's interrogatories signed by prior counsel are simply “an unverified statement made by his counsel” and are not in accordance with Fed.R.Civ.P. 33(b)(1)(A) which requires interrogatories to be answered “by the party to whom they are directed.” (emphasis in original). U.S. v. $39,557.00 More or Less, in U.S. Currency, F. Supp.2d 335, 340 (D.N.J. 2010). See also Hindmon v. Natl.-Ben Franklin Life Ins. Corp., 677 F.2d 617, 619 (7th Cir.1982) (observing that interrogatory answers signed by the attorney and not the party violated “the clear mandate of Federal Rule of Civil Procedure 33(a)”).

An unverified interrogatory response is not competent evidence. See Fed. R. Civ. P. 33(c); Daniel J. Quirk, Inc. v. Village Car Co., 120 USPQ2d 1146, 1151 n.28 (TTAB 2016) (citing cases that unsigned and unverified answers to interrogatories are not competent evidence or are not a valid basis for factual findings in connection with a motion for summary judgment).

“Inasmuch as Petitioner references unverified interrogatory no.2 as the only ‘probative evidence' of Respondent's nonuse in the record,” the TTAB held that Petitioner has not met its burden to show nonuse by a preponderance of the evidence.

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