TTAB Proceeding

Virgin Enterprises ('VE'), a United Kingdom company, opposed a trademark application by Rosenruist-Gestao, a Port- uguese company ('RG'), for the mark VIRGIN GORDA for various clothing and travel accessories. RG had not used its mark in the United States, had no place of business in the United States, no employees or agents resident in the United States, and owned no U.S. property ' in fact, it
had none of the 'contacts' traditionally necessary for personal jurisdiction. RG had, however, filed a U.S. trademark application and had appointed a U.S. lawyer as its domestic representative, as encouraged by 15 U.S.C. '1051(e). The authorization empowered the attorney to prosecute the application and also to act as RG's designee 'upon whom notices or process in proceedings affecting this mark may be served.'

During its testimony period, VE asked RG to produce a Rule 30(b)(6) representative to testify on its behalf. When RG would not agree to produce a witness, VE filed a motion asking the TTAB to compel RG to produce a witness to testify at an oral deposition in Portugal. The TTAB refused. The TBMP states that an adverse party who does not agree to give a testimony deposition cannot be compelled to do so by a notice of deposition alone. Rather, attendance must be compelled. The means for compulsion is the subpoena power of a federal district court under 35 U.S.C. '24. The TBMP observes that 'there is no certain procedure for obtaining, in a Board inter-parties proceeding, the trial testimony deposition of a witness who resides in a foreign country … and is not willing to appear voluntarily to testify.' It adds, optimistically, that 'the deposing party may be able to obtain the testimony deposition of such a witness through the letters rogatory procedure or The Hague Convention letter of request procedure.' TBMP '703.01 (f)(3).