NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

STEVEN WESTLAKE,

Appellant

v.

EDGAR ALEXANDER BARRERA,

Appellee

______________________ 

2016-1189

______________________ 

Appeal from the United States Patent and Trademark 

Office, Trademark Trial and Appeal Board in No. 

92052260.

______________________ 

Decided: September 8, 2016 

______________________ 

MARK E. LEVY, Hinman, Howard & Kattell, LLP, 

Binghamton, NY, for appellant.

EDGAR ALEXANDER BARRERA, Grand Terrace, CA, pro 

se.

______________________ 

Before PROST, Chief Judge, NEWMAN, and TARANTO,

Circuit Judges.
2 WESTLAKE v. BARRERA

PER CURIAM. 

Steven Westlake filed a petition to cancel Edgar 

Barrera’s trademark registration. Mr. Westlake did not 

submit supporting evidence within the time allowed. The

Trademark Trial and Appeal Board found that his neglect 

was not excusable, and it therefore dismissed the cancellation petition. We affirm.

BACKGROUND

Mr. Barrera owns a registration, issued on August 4, 

2009, for a mark consisting of “THE NATIONAL POLICE 

GAZETTE THE LEADING ILLUSTRATED SPORTING 

JOURNAL IN AMERICA” and a design. On March 29, 

2010, Mr. Westlake petitioned to cancel the mark under 

15 U.S.C. § 1064, alleging that Mr. Barrera committed 

fraud in procuring the registration of the mark and that 

the mark falsely suggests a connection with Mr. Westlake. 

The Board gave the parties several extensions of time 

for the submission of evidence but ultimately set July 29, 

2014, as Mr. Westlake’s due date. See 37 C.F.R. § 2.121. 

Mr. Westlake submitted no evidence by that date. Six 

months later, on January 28, 2015, the Board issued a 

show-cause order, giving him until February 12, 2015, to 

demonstrate why judgment should not be entered against 

him for failure to prosecute the case. Mr. Westlake responded six days late, on February 18, 2015. In his

response, he moved to reopen the time to respond to the 

Board’s show-cause order, actually responded to the showcause order, and moved to reopen the period for submitting evidence.

The Board allowed Mr. Westlake’s late response to the 

show-cause order, finding that his six-day tardiness on 

the show-cause order was excusable. The Board borrowed 

generally applicable standards for excusable neglect, 

considering “all relevant circumstances,” including “the 

danger of prejudice to the [non-movant], the length of the 
WESTLAKE v. BARRERA 3

delay and its potential impact on judicial proceedings, the 

reason for the delay, including whether it was within the 

reasonable control of the movant, and whether the movant acted in good faith.” Pioneer Inv. Servs. Co. v. 

Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993); 

see also FirstHealth of Carolinas, Inc. v. CareFirst of 

Maryland, Inc., 479 F.3d 825, 829 (Fed. Cir. 2007). Finding that Mr. Barrera would incur no prejudice from excusing the tardiness, which was minimal, and that Mr. 

Westlake’s tardiness “was caused by his paralegal’s 

automobile accident and resulting injuries,” not any bad 

faith, J.A. 4, the Board excused the lateness of Mr. 

Westlake’s response to the Board’s show-cause order. The 

Board therefore considered the response, and the motion 

to reopen the period for submitting evidence, on their 

merits. 

Upon doing so, however, the Board determined that 

Mr. Westlake did not show good cause for his failure to 

prosecute the case, i.e., for missing the July 2014 deadline

for submitting evidence. Again applying the Pioneer

framework, the Board concluded that Mr. Westlake’s 

“failure to take testimony or offer evidence was not the 

result of excusable neglect.” J.A. 7. The Board found that 

the delay caused by Mr. Westlake’s failure to submit 

evidence was substantial, as he did not seek more time 

until after the scheduled testimony-submission periods of 

both parties had expired—indeed, until after the Board 

issued its show-cause order six months later. The Board 

also found that Mr. Westlake did not explain why “he was 

not diligent in prosecuting his case, except to say it was 

difficult to publish [his periodical] on a monthly basis and 

respond to the various motions filed by” Mr. Barrera. J.A. 

6–7. The Board rejected Mr. Westlake’s assertion that 

delays in the proceeding caused by Mr. Barrera should 

excuse Mr. Westlake’s failure to submit evidence when 

required. Instead, the Board found that the “reason for 
4 WESTLAKE v. BARRERA

the delay was within [Mr. Westlake’s] control,” a fact 

weighing “strongly” against him. J.A. 7. 

Having found for those reasons that Mr. Westlake’s 

failure to prosecute the case was not a result of excusable 

neglect, the Board denied his motion to reopen the evidence-submission period. And because Mr. Westlake 

“ha[d] not submitted any record evidence or testimony in 

support of his case,” the Board dismissed the petition to 

cancel Mr. Barrera’s mark. J.A. 7.

Mr. Westlake appeals. We have jurisdiction under 28 

U.S.C. § 1295(a)(4)(B).

DISCUSSION

There is no challenge to the Board’s premises that in 

this case missing the due date for submission of evidence, 

if without good cause, constituted a failure to prosecute 

that warranted dismissal of the petition to cancel. The 

question before us is whether the Board committed reversible error in determining that Mr. Westlake did not 

show good cause for his failure to submit evidence by the 

due date. We review the Board’s determination under the 

deferential standard limiting us to checking if the Board 

abused its discretion. See Hewlett-Packard Co. v. Olympus Corp., 931 F.2d 1551, 1552 (Fed. Cir. 1991). We find 

no basis for disturbing the Board’s decision.

We see no error in the Board’s adoption of the Pioneer

framework for assessing excusable neglect, and we see no 

abuse of discretion in the Board’s application of that 

framework to the facts in this case. The Board deemed 

Mr. Westlake’s delay to be “substantial,” and it found that 

“the reason for the delay was within [Mr. Westlake’s] 

control,” a factor “weigh[ing] strongly” against Mr. 

Westlake. J.A. 6–7. The Board also rejected the argument that Mr. Barrera’s delays in the proceeding excuse 

Mr. Westlake’s failure to prosecute. Mr. Westlake has not 

shown that the Board committed an abuse of discretion in 
WESTLAKE v. BARRERA 5

reaching any of those determinations. He argues that the 

Board should have considered Mr. Barrera’s repeated 

delays and bad faith in reaching its no-excusable-neglect 

decision, but the Board did consider Mr. Barrera’s actions, 

deeming them not to excuse Mr. Westlake’s failure to 

prosecute his case. In essence, Mr. Westlake asks this

court to reevaluate the factors considered by the Board. 

But that is not this court’s function under an abuse-ofdiscretion standard of review. See, e.g., In re NTP, Inc., 

654 F.3d 1279, 1292 (Fed. Cir. 2011). 

Mr. Westlake also directly alleges that Mr. Barrera 

committed fraud in procuring registration of his mark. 

That assertion is the basis of Mr. Westlake’s petition for 

cancellation, which, as we have just explained, the Board 

properly found Mr. Westlake failed to prosecute. Failure 

to prosecute was the only ground, and a legally sufficient 

ground, for the Board’s dismissal of the petition for cancellation without deciding anything about the fraud 

charge except that there was no evidence timely submitted to support it. The merits of the fraud charge are 

therefore not before us. 

CONCLUSION

For the foregoing reasons, the judgment of the Board 

is affirmed.

AFFIRMED