NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2010-1085 (Cancellation No. 92047859)

WARD E. BENEDICT, Appellant,

v. SUPER BAKERY, INCORPORATED, Appellee.

Ward E. Benedict , of Surrey, British Columbia, Canada, pro se. John W. McIlvaine, III , The Webb Law Firm, of Pi ttsburgh, Pennsylvania, for appellee. Appealed from: United States Patent and Trademark Office Trademark Trial and Appeal BoardNOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2010-1085 (Cancellation No. 92047859) WARD E. BENEDICT, Appellant,

v. SUPER BAKERY, INCORPORATED, Appellee. Appeal from the United Stat es Patent and Trademark Offi ce, Trademark Trial and Appeal Board.

__________________ _________ DECIDED: March 3, 2010

__________________ _________ Before BRYSON and MOORE, Circuit Judges , FOLSOM, Chief District Judge

. *
PER CURIAM. Ward E. Benedict appeals from a final decision of the Trademark Trial and Appeal Board (Board) in which the Board entered def ault judgment against Mr. Benedict for failure to comply with discovery or ders. For the following reasons, we vacate and remand

. Super Bakery, Inc. (Super Bakery) fil ed a Petition for Cancellation of U.S. Registration No. 2,966,255, owned by Mr. Benedict, on July 25, 2007. Super Bakery served discovery requests on Mr. Benedict in January and February of 2008. Mr. Benedict did not respond to Super Bakery’s r equests. Super Bakery filed a motion to

* Honorable David J. Folsom, Chief Judge, United States District Court for the Eastern District of Texas, sitting by designation.compel, and the Board issued an order instructing Mr. B enedict to respond to the requests within thirty days. Mr. Benedict fa iled to comply with the Board’s order, and Super Bakery filed a motion for default judgm ent. The Board found that an entry of judgment against Mr. Benedict was not yet warranted, but again issued an order directing Mr. Benedict to respond to the discovery requests within thirty days. On March 12, 2009, one day before the Board-ordered discovery deadline, Mr. Benedict filed a motion for summary judgment with respect to Super Bakery’s cancellation claim. Mr. B enedict did not respond to any of Super Bakery’s discovery requests. On April 16, 2009, Super Bakery filed a motion for s anctions, asking the Board to enter judgment against Mr. Benedi ct pursuant to 37 C.F.R. § 2.120(g). The Board granted Super Bakery’s moti on in an opinion issued on August 18, 2009. The Board noted that Mr. Benedict faile d to respond to any of Super Bakery’s discovery responses, which were served near ly twenty months ear lier, and that Mr. Benedict provided no excuse or explanation fo r his failure to comply with the Board’s most recent order compelling discovery. Therefore, the Board entered default judgment against Mr. Benedict pursuant to 37 C.F.R. § 2.120(g). The Board then denied Mr. Benedict’s motion for summary judgment as moot. Mr. Benedict appeals. On appeal, Mr. Benedi ct asserts that he made a proper and timely motion for summary judgment. Therefore, he argues, the Board was required to resolve his summary judgment mo tion prior to resolving Super Bakery’s motion for sanctions. Mr. Benedict acknowl edges that he has not yet complied with any of the Board’s orders compelling discovery. Trademark Rule 2.127(d) prov ides, in relevant part:

2010-1085 22010-1085 3 When any party files . . . a motion fo r summary judgment, or any other motion which is potentially dispositiv e of a proceeding, the case will be suspended by the Trademark Trial and Appeal Board with respect to all matters not germane to the motion and no party should file any paper which is not germane to the motion ex cept as otherwise specified in the Board's suspension order. If the case is not disposed of as a result of the motion, proceedings will be resumed pur suant to an order of the Board when the motion is decided. 37 C.F.R. § 2.127(d). Mr. Benedict argues that because he filed a summary judgment motion, the cancellation proceeding—including his obligation to comply with the court’s order regarding discovery—should have been suspended. Acco rding to Mr. Benedict, it was therefore inappropriate for the court to grant Super Bakery’s April 16, 2009 motion for discovery sanctions. Mr. Benedict does not argue that § 2.127( d) otherwise alters his discovery obligations. Hence, if Mr. Benedi ct is correct that his filing of the summary judgment motion does suspend his discovery obligations, “proceedings [including his discovery obligations] will be resu med” if the case is not disposed of as a result of the motion. The Board did not discuss the applicability of 37 C.F.R. § 2.127(d) to the facts of this case in its decision. Rather than rule on the applicability of § 2.127(d) in the first instance, we vacate and remand to the Board. Accordingly, we vacate the Board’s decis ion and remand this case to the Board. COSTS No costs.