Abandonment of Appeal Did Not Kill Cross-Appeal; Party Did Not Show Excusable Neglect for Missing Deadline

Firsthealth of the Carolinas, Inc. v. Carefirst of Maryland, Inc., __ F.3d __ (Fed. Cir. Feb. 27, 2007) (Bryson, Gajarsa, LINN) (TTAB)

KEY WORDS:  TRADEMARK, APPELLATE JURISDICTION (YES), EXCUSABLE NEGLECT

Fed Cir affirms dismissal of Firsthealth’s counterclaims to kill Carefirst’s trademarks (in an opposition brought by Carefirst).  The Board refused to accept late evidence from Firsthealth where its excuses involved the birth of counsel’s child, the significant amount of testimony in the case, time conflicts with other matters, and a docketing error.  As an initial matter, the Fed Cir did not lose jurisdiction when Carefirst dropped its appeal from the Board’s finding of no likelihood of confusion, because Carefirst could still cause “damage” based on the Board’s rulings.  On the merits, the Board was reasonable in adopting the Supreme Court’s standard for “excusable neglect” from Pioneer v. Brunswick, and did not abuse its discretion here.