NOTE: Pursuant to Fed . Cir. R. 47.6, this dispo s ition is not citable as precede nt. It is a pu blic 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 Norther n 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 tradem ark 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 registra tion 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 su ch opposition must be filed within 30 daysfrom official publication of t he application. Section 1063 also provides that the time for filing an opposition m a y be extended by the Dir ector of the Patent and Trademark Office (“PTO”), but expressly provides that any su ch reques t for extension of time must be “[u]pon written reques t prior to the expiration of the thirty day period .” Requests for
extens ion of the time within wh ich to file a Notice of O pposition are handled by the Board, which requires that any request for extens ion of time under section 1063 must be signed by the party requesting the extens ion. 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 mailin g affixed to the request, but neither t he writte n request nor the ce rtificate of mailin g were signed by Mr. Stoller. At first glance, Mr. Stolle r’s first request seems clearly out of time, since it was received well after the 30-day s t atutory peri od. However, due to Board regulations, Mr. Stoller’s request was not nec essarily out of time. The Board treats written submissions re ce ived after the expiration of the 30-day period as nonethele ss timely if the certific ate of mailin g proce dures specified in Trademark Rule 2.197 are pr oper ly followed. That rule requires that, before the expiration of the 30-day period, the writt en request must be d e po sited in the mails, properly addressed and stamped, and the request must incl ude a signed certificate stating the date of depos it in the mails. See 37 C.F.R. § 2.197 (2003).

05-1320 2In addition, as noted above, any request for an extension of time must itself be signed by t he requestor. Had the first r equest been signed by Mr. Stoller, and had the affix ed certificate of mailing also been si gned, the request presumably would have been timely due to satisfacti on of the B oard’s certif icate of mailing regulat ion. Such was not the case, as the Febr uary 25 document was uns igned, in violation of section 2.102(a), and the certificate of mail ing was unsigned, in viol ation of section 2.197. Howev e r, the Board gave Mr. Stoller an oppor tunity 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 ti me t o file an o pposition must be signed by the party filing it, or by the p a rty’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 not ificatio n of the signature defect. 37 C.F.R. § 2.119(e) ( 2002). On April 18, 2003, co nsis tent with section 2. 119(e), the Board granted Mr. Stoller until May 18, 2003 to submit a properly signed c opy of his request. In response to the April 18 notification, Mr . Stoller submitted a copy of his first
extens ion r equest. This request , which we s hall refer to as the “second request,” is undated, but is signed by Mr. Stoller in t he body of the request, and the affixed certificate of mailing is also si gned, but is dated in han dwriti ng “4/29/03.” In Mr. Stoller's response to the applicant’s motion to dis m iss for failure to file a timely notice of opposition, he concedes that it was the “4/29/03” document that was s u bmitted in response to the April 13 notific ation. This second request was received by the Board on May 5, well within the May 18 deadline. Howe ver, this document did not satisfy the

05-1320 3certificate of mailing require ments, as it w a s 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 purpor ted copy of the original Februar y 25, 2003 first request for an extension of time. We refer to this document as the “third request.” The third r equest is indeed a c opy of the first request, and the third reques t and its certificate of mailing are both signed by Mr. Stoller and dated February 25, 2003. With regard to the third request, the B oard held that “the record contains no evidenc e that this third extension submis si on, i.e., a fully signed extension request bearing the February 25, 2003 date, was ever received by the Board or otherwis e mailed to the Board by the [May 18] deadline.” Alter nativel y, the Bo ard held that the third request was legally inadeq uate, even had there been eviden ce that it was timely received, because Mr. Stoller failed to prove that the third request itself had actually been signed and dat ed on February 25, 2003, rather than havi ng been signed and dated at a later date as an exact copy of a do cument that itself had actually been signed and dated within the 30-day statutory time. This alter native holding is bas e d on the Board’s interpretation of sect ion 2.119(e) that t he “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 r equest for extension of time within the regulations that could satisfy the 30-day st atutory 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 unti mely. Mr. Stoller ti mely appealed and we have jurisdiction under 28 U.S.C. § 1295(a)(4)(B).

05-1320 4II We review legal conclusions by the Board de nov o , In re Int'l Flavors & Fragrances Inc. , 183 F.3d 1361, 1365 (Fed. Cir. 1999) , and the Board's factual findings for substantial evide n c e , In re Pacer Tech. , 338 F.3d 1348, 1349 (Fed. Cir. 2003). We firs t turn to the Board’s factual finding that the record fails to show a proper request for extension of time timely fil ed by Mr. Stoller. As the Board’s opinion noted, the state of the record in this case is somewh at less orderly than the Board prefers. In the light of that statement, we called for the full r e c o r d i n o r d e r t o t e s t t h e Board’s finding that Mr. Stoller failed to make a timely request for extension of time to file an opposition to DARKST AR. The record does include a c opy of the third request, but the record nowher e indicates the date upon whic h this request was received by the Board. In fact, there is a fax transmission from Mr. Stoller to a legal ass i stant of the Board dated February 16, 2004 labeled “Re: Request for An Extension Per Board Order Dated 4/18/03." The fax tr ansmission’s cov e r sheet addre ssed t o the legal assistant states in Mr. Stoller’s handwriting: “As per your request Eric, please find a timely request for an extens ion of time filed on 4/29/03 as per Board order dated April 18, 2003.” This statement is signed by Mr. Stol ler. The document sent by fax in February of 2004 that is purportedly w hat Mr. Stoller filed in re sponse to the April 18 order, however, is not the “second req uest” that he had previously st ated to the Board, in his response to appellee’s motion to dismiss, was his response to the April 18 or der. The document sent by fax to the Board’s legal a ssistant in February of 2004 is actually the third request, the document both signed and dated February 25, 2003. Mr. Stoller’s fax

05-1320 5transmission statement seeks to substitute the third request for the second request as the document filed to m eet the May 18 deadline im pos ed 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 s e ction 2.119(e) relief. Our review of the complete record confirms the correctness of t he 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 ev id ence suppor ts the Board’s finding that Mr. Stoller failed to file a ti mely request for extension of time in which to file his opposition, we need not deci de whether the Board correctl y interpreted section 2.119(e). The Board’s decis ion is affirmed.

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