NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition 

is not citable as precedent. It is a public record. 

United States Court of Appeals for the Federal Circuit 

 

 

05-1320 

(Opposition No. 91/162,195) 

LEO STOLLER, 

 Appellant, 

v. 

NORTHERN TELEPRESENCE CORP., 

 Appellee. 

 __________________________ 

 DECIDED: October 28, 2005 

 __________________________ 

Before CLEVENGER, RADER, and DYK, Circuit Judges. 

PER CURIAM. 

Leo Stoller’s request for an extension of time within which to oppose the 

registration of DARKSTAR by Northern Telepresence Corp. was denied by the 

Trademark Trial and Appeal Board (“Board”) as untimely, and his opposition was 

therefore dismissed. Mr. Stoller appeals from this decision. We affirm. 

I 

The appellee filed a trademark application for the mark DARKSTAR. The 

application was published in the Official Gazette on January 28, 2003. Law affords “any 

person who believes that he would be damaged by registration of a mark on the 

principal register” the opportunity to oppose the registration. See 15 U.S.C. § 1063 

(2000). Section 1063 specifies that any such opposition must be filed within 30 days 
from official publication of the application. Section 1063 also provides that the time for 

filing an opposition may be extended by the Director of the Patent and Trademark Office 

(“PTO”), but expressly provides that any such request for extension of time must be 

“[u]pon written request prior to the expiration of the thirty day period.” Requests for

extension of the time within which to file a Notice of Opposition are handled by the 

Board, which requires that any request for extension of time under section 1063 must

be signed by the party requesting the extension. 37 C.F.R. § 2.102(a) (2003). 

In this case, the 30-day time period ended on February 27, 2003. Mr. Stoller

requested a 90-day extension of time within which to lodge his protest. For purposes of 

this opinion, we shall refer to this request as the “first request.” The first request did not 

arrive at the PTO, however, until April 3, 2003. The record reflects that the first request 

bears typewritten dates of February 25, 2003, on the request and the certificate of 

mailing affixed to the request, but neither the written request nor the certificate of 

mailing were signed by Mr. Stoller. 

At first glance, Mr. Stoller’s first request seems clearly out of time, since it was 

received well after the 30-day statutory period. However, due to Board regulations, 

Mr. Stoller’s request was not necessarily out of time. 

The Board treats written submissions received after the expiration of the 30-day

period as nonetheless timely if the certificate of mailing procedures specified in 

Trademark Rule 2.197 are properly followed. That rule requires that, before the 

expiration of the 30-day period, the written request must be deposited in the mails,

properly addressed and stamped, and the request must include a signed certificate 

stating the date of deposit in the mails. See 37 C.F.R. § 2.197 (2003). 

05-1320 2 
In addition, as noted above, any request for an extension of time must itself be 

signed by the requestor. Had the first request been signed by Mr. Stoller, and had the 

affixed certificate of mailing also been signed, the request presumably would have been 

timely due to satisfaction of the Board’s certificate of mailing regulation. Such was not

the case, as the February 25 document was unsigned, in violation of section 2.102(a), 

and the certificate of mailing was unsigned, in violation of section 2.197. 

However, the Board gave Mr. Stoller an opportunity to cure the defects of the 

submission pursuant to Trademark Rule 2.119(e), which provides in relevant part that: 

[E]very request for an extension of time to file an opposition must be 

signed by the party filing it, or by the party’s attorney, but an unsigned 

paper will not be refused consideration if a signed copy is submitted to the 

Board within the time limit set forth in the Board’s notification of the 

signature defect. 

37 C.F.R. § 2.119(e) (2002). On April 18, 2003, consistent with section 2.119(e), the 

Board granted Mr. Stoller until May 18, 2003 to submit a properly signed copy of his 

request. 

In response to the April 18 notification, Mr. Stoller submitted a copy of his first 

extension request. This request, which we shall refer to as the “second request,” is 

undated, but is signed by Mr. Stoller in the body of the request, and the affixed 

certificate of mailing is also signed, but is dated in handwriting “4/29/03.” In Mr. Stoller's 

response to the applicant’s motion to dismiss for failure to file a timely notice of 

opposition, he concedes that it was the “4/29/03” document that was submitted in 

response to the April 13 notification. This second request was received by the Board on 

May 5, well within the May 18 deadline. However, this document did not satisfy the 

05-1320 3 
certificate of mailing requirements, as it was dated “4/29/03,” well outside the 30-day 

time limit. Thus, like the first request, Mr. Stoller's second request was defective. 

The record also contains a further purported copy of the original February 25, 

2003 first request for an extension of time. We refer to this document as the “third 

request.” The third request is indeed a copy of the first request, and the third request

and its certificate of mailing are both signed by Mr. Stoller and dated February 25, 2003. 

With regard to the third request, the Board held that “the record contains no 

evidence that this third extension submission, i.e., a fully signed extension request 

bearing the February 25, 2003 date, was ever received by the Board or otherwise 

mailed to the Board by the [May 18] deadline.” Alternatively, the Board held that the 

third request was legally inadequate, even had there been evidence that it was timely

received, because Mr. Stoller failed to prove that the third request itself had actually

been signed and dated on February 25, 2003, rather than having been signed and 

dated at a later date as an exact copy of a document that itself had actually been signed 

and dated within the 30-day statutory time. This alternative holding is based on the 

Board’s interpretation of section 2.119(e) that the “signed copy” to which the regulation 

refers must be a copy that was actually signed within the 30-day statutory period. 

Because Mr. Stoller failed to file a request for extension of time within the 

regulations that could satisfy the 30-day statutory time limit, the Board held that 

Mr. Stoller “missed the statutory deadline to file an opposition” and dismissed 

Mr. Stoller’s May 16, 2003, opposition as untimely. Mr. Stoller timely appealed and we 

have jurisdiction under 28 U.S.C. § 1295(a)(4)(B). 

05-1320 4 
II 

We review legal conclusions by the Board de novo, In re Int'l Flavors & 

Fragrances Inc., 183 F.3d 1361, 1365 (Fed. Cir. 1999), and the Board's factual findings

for substantial evidence, In re Pacer Tech., 338 F.3d 1348, 1349 (Fed. Cir. 2003). 

We first turn to the Board’s factual finding that the record fails to show a 

proper request for extension of time timely filed by Mr. Stoller. As the Board’s opinion 

noted, the state of the record in this case is somewhat less orderly than the Board

prefers. In the light of that statement, we called for the full record in order to test the

Board’s finding that Mr. Stoller failed to make a timely request for extension of time to 

file an opposition to DARKSTAR. The record does include a copy of the third request, 

but the record nowhere indicates the date upon which this request was received by the 

Board. In fact, there is a fax transmission from Mr. Stoller to a legal assistant of the 

Board dated February 16, 2004 labeled “Re: Request for An Extension Per Board Order 

Dated 4/18/03." The fax transmission’s cover sheet addressed to the legal assistant

states in Mr. Stoller’s handwriting: “As per your request Eric, please find a timely

request for an extension of time filed on 4/29/03 as per Board order dated April 18,

2003.” This statement is signed by Mr. Stoller. The document sent by fax in February

of 2004 that is purportedly what Mr. Stoller filed in response to the April 18 order, 

however, is not the “second request” that he had previously stated to the Board, in his

response to appellee’s motion to dismiss, was his response to the April 18 order. The 

document sent by fax to the Board’s legal assistant in February of 2004 is actually the 

third request, the document both signed and dated February 25, 2003. Mr. Stoller’s fax 

05-1320 5 
transmission statement seeks to substitute the third request for the second request as 

the document filed to meet the May 18 deadline imposed by the Board. 

The record is quite clear that the second request, which was defective, was 

Mr. Stoller’s unsuccessful attempt to comply with the Board’s section 2.119(e) relief. 

Our review of the complete record confirms the correctness of the Board’s conclusion 

that there is no evidence that the third request was ever timely filed, i.e., by May 18, 

2003. 

Because we conclude that substantial evidence supports the Board’s finding that 

Mr. Stoller failed to file a timely request for extension of time in which to file his 

opposition, we need not decide whether the Board correctly interpreted section 

2.119(e). The Board’s decision is affirmed. 

05-1320 6