The Board dismissed Brewer Brothers’ bid to cancel BENEFIT Co.’s registration because no evidence was filed

Decision Desk · August 19, 2026 decision · Nonprecedential

The Trademark Trial and Appeal Board (the Board) is the U.S. Patent and Trademark Office panel that decides challenges to trademark registrations and appeals from refused applications. The Board marked this order nonprecedential, meaning it does not bind the Board in later cases.

The Board dismissed a petition for cancellation, a request to cancel an existing registration, that Brewer Brothers, Inc. filed against a registration owned by BENEFIT Co., Ltd. The Board said the dismissal was with prejudice, a final dismissal, and rested on failure of proof, meaning Brewer Brothers had not proved its claim. It had submitted no evidence during its trial period, the time set for presenting evidence, and its trial brief, the written argument summing up its case, came too late. Opinion, p. 7.

Source: the Board’s complete opinion in case 92085207, with page citations below. This report describes the decision; it is not legal advice.

BENEFIT Co. owns Registration No. 6382640, issued June 15, 2021, for a mark covering eyeglasses, goggles, sunglasses, smartphone cases and protective films, and surfboards, surfboard fins and leashes. Brewer Brothers claimed likelihood of confusion, meaning that consumers would likely confuse the two marks, based on its own Registration No. 1753982 for t-shirts, surfboards and sailboards, in which the word SURFBOARDS is disclaimed, meaning no exclusive claim is made to that word alone. In its answer, its formal written response to the petition, BENEFIT Co. admitted that the U.S. Patent and Trademark Office had denied Brewer Brothers’ pending applications but denied the other main allegations of the petition. Opinion, p. 2.

Brewer Brothers’ testimony period, the window set for it to submit evidence, closed on September 17, 2025, without Brewer Brothers taking testimony or filing any evidence. After Brewer Brothers missed the March 1, 2026 deadline for its trial brief, the Board issued an order on March 19, 2026 directing it to explain why the missed brief should not be treated as giving up the case. Brewer Brothers responded on March 30, 2026, asked for permission to file a brief by April 18, 2026, and filed its trial brief on April 13, 2026. Brewer Brothers did not ask the Board to reopen its testimony period. The Board gave no consideration to a response BENEFIT Co. filed on May 27, 2026, because it was late. Opinion, pp. 1–3.

Brewer Brothers said its missed brief resulted from a change in counsel and a calendaring error. It explained that the parties had been in settlement talks from June 2024 to March 2026, and that an attorney, Charles Ferrari, took primary responsibility for the case in January 2025. According to Brewer Brothers, Ferrari took a new position in October 2025, and after that Mr. Brewer lost track of the briefing schedule. Opinion, pp. 4–5.

The Board found that Brewer Brothers’ response showed it had not lost interest in the case, so it discharged the March 19 order, meaning it closed that order without entering judgment for lack of interest. The Board said that step did not reset the expired deadlines, and that reopening one required excusable neglect, a standard for excusing a missed deadline judged on four considerations. The Board found that keeping track of the schedule was entirely within Brewer Brothers’ control, and it weighed that reason for the delay heavily against Brewer Brothers. It found no evidence of harm to BENEFIT Co., such as lost evidence or witnesses, and counted that in Brewer Brothers’ favor. The Board found the nearly six-month delay in the trial schedule weighed against Brewer Brothers, and treated the absence of any evidence of bad faith as neutral. Weighing those points together, the Board denied Brewer Brothers’ request to reopen the time to file a brief. Opinion, pp. 3–7.

Brewer Brothers said it had evidence to present, and it had attached two declarations with documents to its petition. The Board applied a rule that exhibits attached to a party’s own petition are not evidence unless introduced during the testimony period, and it found no evidence in the record supporting Brewer Brothers’ claim. Opinion, p. 7.

The dismissal rested on failure of proof, under the rule that a challenger must prove its claim by a preponderance of the evidence, meaning more likely than not. Opinion, p. 7.

This report describes the decision as issued; it does not follow any later appeal.

Sources

• The Board’s complete opinion; GleanMark case record.