Ahal Al-Sara Group for Trading v. American Flash, Inc.

UNITED STATES PATENT AND TRADEMARK OFFICE

THIS ORDER IS A Trademark Trial and Appeal Board

P.O. Box 1451

PRECEDENT OF THE

Alexandria, VA 22313-1451

TTAB General Contact Number: 571-272-8500

General Email: TTABInfo@uspto.gov

January 23, 2023

ADH

Cancellation No. 92079775

Ahal Al-Sara Group for Trading

v.

American Flash, Inc.

Before Wellington, Lynch and Dunn,

Administrative Trademark Judges.

By the Board:

This case now comes up for consideration of Respondent’s contested motion (filed

June 22, 2022) to dismiss the petition for cancellation for failure to state a claim upon

which relief can be granted under Fed. R. Civ. P. 12(b)(6). 5 TTABVUE.1

I. Background

Respondent owns Registration No. 3103165 for the mark shown below in

connection with a variety of cleaning compounds in International Class 3:2

1 Citations to the record or briefs are to the publicly available documents on TTABVUE, the

Board’s electronic docketing system. See, e.g., Turdin v. Trilobite, Ltd., 109 USPQ2d 1473,

1476 n.6 (TTAB 2014). The number preceding “TTABVUE” corresponds to the docket entry

number; the number(s) following “TTABVUE” refer to the page number(s) of that particular

docket entry, if applicable.

2 Registration No. 3103165 was issued on the Principal Register on June 13, 2006; renewed.

The registration claims the colors red, white and blue as a feature of the mark. The

description of the mark reads: “The mark consists of Red Banner background with the words

Cancellation No. 92079775

Petitioner seeks to cancel the subject Registration alleging claims of abandonment

and fraud. 1 TTABVUE. In support thereof, Petitioner pleads ownership of two

applications filed in the Kingdom of Saudi Arabia3 for the composite word-and-design

mark FIGHTER FLASH, shown below, for among other goods, a variety of cleaning

substances in International Class 3:

1 TTABVUE 3-5 (¶ 1). Petitioner further alleges that Respondent has relied on its

subject Registration in cancellation proceedings initiated against Petitioner’s

FIGHTER FLASH mark in Saudi Arabia and the United Arab Emirates (“U.A.E.”)

Id. at 5 (¶¶ 2, 3). More specifically, Petitioner alleges:

Due to Registrant’s use of the [subject] Registration as the basis or

justification for the Proceedings against Petitioner’s FIGHTER FLASH

marks, Petitioner has an interest falling within the zone of interests

protected by the Lanham Act statute and a reasonable belief in damage

proximately caused by the [subject] Registration.

1 TTABVUE 6 (¶ 6).

‘American’ and ‘Flash’ in WHITE. The term ‘The Original’ is in RED. The term ‘Made in USA’

is in BLUE outline with WHITE filling.” The words “Made in USA” and “American” are

disclaimed.

3 Saudi Arabian Trademark Application Nos. 142902232 and 142802063. 1 TTABVUE 3-4

(¶ 1). Although Petitioner refers to its Saudi Arabian Trademark “Applications” in paragraph

1, 1 TTABVUE 4, Petitioner also refers to “Registrant’s attempted cancellation of Petitioner’s

FIGHTER FLASH Mark” in the foreign proceedings. Id. at 5 (¶¶ 2-3). Accordingly, the

petition is unclear as to whether Petitioner is alleging ownership of Saudi Arabian trademark

applications, registrations, or both.

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Cancellation No. 92079775

In lieu of an answer, Respondent moved to dismiss the petition. 5 TTABVUE.

I. Motion to Dismiss

A. Legal Standard

A motion to dismiss under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon

which relief can be granted is a test solely of the legal sufficiency of the allegations in

a complaint. See Lewis Silkin LLP v. Firebrand LLC, 129 USPQ2d 1015, 1016 (TTAB

2018) (citing Young v. AGB Corp., 152 F.3d 1377, 47 USPQ2d 1752, 1754 (Fed. Cir.

1998)); Order of Sons of Italy in Am. v. Profumi Fratelli Nostra AG, 36 USPQ2d 1221,

1222 (TTAB 1995); TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE

(TBMP) § 503.02 (2022). To state a claim upon which relief can be granted, and thus

survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a plaintiff need only allege

facts that, if proven, would establish it has: (i) an entitlement to a statutory cause of

action; and (ii) a valid statutory ground for cancelling the subject registration. See

Young, 47 USPQ2d at 1754-55; Fair Indigo LLC v. Style Conscience, 85 USPQ2d

1536, 1538 (TTAB 2007).

Fed. R. Civ. P. 8(a)(2), made applicable to Board proceedings by Trademark Rule

2.116(a), 37 C.F.R. § 2.116(a), requires that a pleading contain a “short and plain

statement of the claim showing that the pleader is entitled to relief.” The Rule does

not require detailed factual allegations, but requires more than labels, conclusions,

formulaic recitations of the elements of a cause of action, or naked assertions.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Indeed, “a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

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Cancellation No. 92079775

on its face.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see

also Lewis Silkin LLP, 129 USPQ2d at 1016; TBMP § 309.03(a)(2).

In the context of Board inter partes proceedings, a plaintiff need only allege

enough factual matter to suggest that its claim is plausible and to “raise a right to

relief above the speculative level.” Twombly, 550 U.S. at 555-56. Under the simplified

notice pleading rules of the Federal Rules of Civil Procedure, the allegations of a

complaint should be “construed as to do substantial justice.” See Scotch Whisky Ass’n

v. U.S. Distilled Prod. Co., 952 F.2d 1317, 21 USPQ2d 1145, 1147 (Fed. Cir. 1991);

Corporacion Habanos SA v. Rodriguez, 99 USPQ2d 1873, 1874 (TTAB 2011).

Additionally, as discussed in more detail below, a claim of fraud in the procurement

of a registration requires the circumstances constituting fraud to be alleged “with

particularity.” Fed. R. Civ. P. 9(b).

B. Entitlement to a Statutory Cause of Action

Under Section 14 of the Trademark Act, a petition for cancellation may be filed

“by any person who believes that he is or will be damaged . . . by the registration of a

mark.” 15 U.S.C. § 1064. However, only those plaintiffs whose interests fall within

the zone of interests protected by the statute and who have a reasonable belief of

damage proximately caused by the continued registration of the mark are entitled to

a statutory cause of action for cancellation. See Meenaxi Enter., Inc. v. Coca-Cola Co.,

38 F.4th 1067, 2022 USPQ2d 602, at *3-4 (Fed. Cir. 2022); Australian Therapeutic

Supplies Pty. Ltd., v. Naked TM, LLC, 965 F.3d 1370, 2020 USPQ2d 10837, at *3

(Fed. Cir. 2020), cert. denied, 142 S. Ct. 82 (2021); Corcamore, LLC v. SFM, LLC, 978

4

Cancellation No. 92079775

F.3d 1298, 2020 USPQ2d 11277, at *6-7 (Fed. Cir. 2020), cert. denied, 141 S. Ct. 2671

(2021); see also PepsiCo., Inc. v. Arriera Foods LLC, 2022 USPQ2d 856, at *10 (TTAB

2022); Peterson v. Awshucks SC, LLC, 2020 USPQ2d 11526, at *5 (TTAB 2020). There

is no requirement that actual damage be pleaded to state a claim of entitlement to a

statutory cause of action. See Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d 1023,

1025 (Fed. Cir. 1999).

Pleading facts, which if proved, would establish a plaintiff’s entitlement to a

statutory cause of action in a Board proceeding “is a low threshold, intended only to

ensure that the plaintiff has a real interest in this matter, and is not a mere

intermeddler.” Syngenta Crop. Protection v. Bio-Chek LLC, 90 USPQ2d 1112, 1118

n.8 (TTAB 2009) (citing Ritchie, 50 USPQ2d at 1025-26); see also Meenaxi Enter., Inc.,

2022 USPQ2d 602, at *4 (“While the zone-of-interest ‘test is not especially

demanding,’ it nonetheless imposes a critical requirement.”) (internal citations

omitted).4

In support of its motion, Respondent argues that Petitioner failed to sufficiently

allege its entitlement to a statutory cause of action because Petitioner: (i) has no sales

of goods within the United States; (ii) does not manufacture goods in the United

States; (iii) is not a competitor of Respondent in the United States; (iv) is a Saudi

Arabian company; and (v) has not filed any U.S. trademark applications for

4 Once entitlement to a statutory cause of action is sufficiently alleged as to one ground, a

plaintiff may assert other legally sufficient claims. See Coach Servs., Inc. v. Triumph

Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1727-28 (Fed. Cir. 2012).

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Cancellation No. 92079775

FIGHTER FLASH or AMERICAN FLASH, or any variations thereof. 5 TTABVUE 4-

5.

In response, Petitioner argues it is not required to plead ownership of a U.S.

trademark application or registration, or any commercial activity in the United

States to sufficiently plead its entitlement, contending only “officious intermeddlers

without a plausible claim” lack entitlement. 7 TTABVUE 8-9. Petitioner argues

further that Respondent’s use of its involved U.S. Registration as a sword in

proceedings in Saudi Arabia and the U.A.E. to “attack [ ] Petitioner’s trademarks and,

ultimately, ability to sell products and do business,” 7 TTABVUE 7, alone,

demonstrates Petitioner is not a mere intermeddler, but rather, has a real interest in

the proceeding sufficient to plead its entitlement. Id. at 6-9.

Respondent argues in reply that the existence of disputes between the parties in

countries other than the United States involving Petitioner’s foreign trademark

rights are insufficient to entitle Petitioner to a statutory cause of action in the U.S.

8 TTABVUE 5.

This proceeding arises under the Trademark Act, which “regulate[s] commerce

within the control of Congress.” 15 U.S.C. § 1127; see also Lexmark Int’l, Inc. v. Static

Control Components, Inc., 572 U.S. 118, 109 USPQ2d 2061, 2068 (2014) (Section 45

of the Trademark Act, includes an “unusual, and extraordinarily helpful detailed

statement of the statute’s purposes,” which identifies the interests protected under

the Act through the regulation of “commerce within the control of Congress.”).

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Cancellation No. 92079775

To sufficiently plead entitlement to a cause of action in a Board proceeding, the

plaintiff must plead facts, which if proved, would demonstrate a “real interest” that

affects U.S. commerce. See, e.g., PepsiCo., Inc., 2022 USPQ2d 856, at *11 (A “plaintiff

pleading misrepresentation of source may plead entitlement based on reputational

injury or lost sales provided that the plaintiff establishes a reputational interest in

the United States.”). See also Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753

F.3d 1270, 111 USPQ2d 1058, 1062 (Fed. Cir. 2014) (holding that foreign trademark

owner Cubatabaco had “a legitimate commercial interest” in the COHIBA mark

because Cubatabaco’s pending application had been refused registration based on a

likelihood of confusion with the subject registered marks, and that was “sufficient to

show that the petitioner seeking to cancel the registered mark is the type of party

Congress authorized under 15 U.S.C. § 1064.”); Corporacion Habanos, S.A., 99

USPQ2d at 1876 (notwithstanding strictures of Cuban embargo, Cuban plaintiffs

found to have alleged entitlement based on allegations of advertising its goods in the

United States and “United States consumer deception.”); Fiat Grp. Autos. S.p.A. v.

ISM, Inc., 94 USPQ2d 1111, 1112 (TTAB 2010) (foreign plaintiff that did not allege

ownership of a United States registration or any use of the mark in the United States

nonetheless found to have a basis for pleading its entitlement based on plaintiff’s

Section 66(a) application in the United States, which was provisionally refused in

view of defendant’s United States application).

Such U.S. commerce within the control of Congress as contemplated under the

Commerce Clause of the U.S. Constitution, includes interstate commerce or

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Cancellation No. 92079775

commerce with foreign nations.5 See Christian Faith Fellowship Church v. Adidas

AG, 841 F.3 986, 120 USPQ2d 1640, 1643-1645 (Fed. Cir. 2016) (the Commerce

Clause vests in Congress the power to regulate activities that have a substantial

effect on interstate commerce); see also Larry Harmon Pictures Corp. v. Williams

Rest. Corp., 929 F.2d 662, 18 USPQ2d 1292, 1295 (Fed. Cir. 1991) (the Trademark

Act by its terms extends “to all commerce which Congress may regulate,” which

includes intrastate transactions that affect interstate or foreign commerce). Accord

RJR Nabisco, Inc. v. European Cmty., 579 U.S. 325, 336 (2016) (the presumption

against extraterritoriality in statutory construction reflects the “commonsense notion

that Congress generally legislates with domestic concerns in mind.”) (quoting Smith

v. United States, 507 U.S. 197, 204 n.5 (1993)). Thus, while allegations of ownership

of proprietary rights in a mark in the United States or ownership of a U.S. trademark

application or registration are not required to sufficiently plead entitlement to bring

a claim based on abandonment or fraud, see, e.g., Corporacion Habanos, S.A., 99

USPQ2d at 1875, a foreign plaintiff cannot establish entitlement to an abandonment

or fraud claim based solely on its foreign rights, without any claim or interest related

to U.S. commerce.6

5 “[C]ommerce with foreign nations means commerce between citizens of the United States

and citizens and subjects of foreign nations.” See In re: Trade–Mark Cases, 100 U.S. 82, 96

(1879).

6 Although one purpose of the Trademark Act is “to provide rights and remedies stipulated

by treaties and conventions respecting trademarks, trade names, and unfair competition

entered into between the United States and foreign nations,” (Trademark Act Sec. 45)

Petitioner does not plead any rights under a treaty or convention.

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Cancellation No. 92079775

Here, the petition for cancellation, considered as whole, fails to set forth

allegations of fact that if proved would demonstrate Petitioner has an interest falling

within the zone of interests protected by Trademark Act Section 14. It relies only on

challenges to Petitioner’s foreign marks in foreign proceedings. Petitioner has not

pleaded a presence in the United States. Petitioner does not contend that its interests

involve selling or manufacturing goods within the United States, and Petitioner has

not filed any U.S. trademark applications to register FIGHTER FLASH or

AMERICAN FLASH or any variations thereof. Nor does Petitioner plead an intent to

enter the U.S. market in the future, or any other facts that if proved, would

demonstrate an interest related to or affecting U.S. commerce falling within the scope

of protection under the Trademark Act.

Based on its failure to identify an interest within the zone of interests of the

Trademark Act, Petitioner has failed to sufficiently plead its entitlement to a

statutory cause of action. However, consistent with the Board’s general practice of

allowing parties to cure a defective pleading if an amended pleading would not be

futile and the privilege of amendment has not been abused, see, e.g., PepsiCo., Inc.,

2022 USPQ2d 856, at *23, Petitioner is allowed time in which to replead its

entitlement to a cause of action below, to the extent it may properly do so based on

the facts of the case.

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Cancellation No. 92079775

C. Grounds for Cancellation

Although Petitioner’s failure to sufficiently plead its entitlement, alone, is

sufficient to grant Respondent’s motion to dismiss, for completeness, we also address

the sufficiency of Petitioner’s pleaded grounds for cancellation.

1. Fraud

Fraud in procuring or maintaining a trademark registration occurs when an

applicant for registration or a registrant knowingly makes a false, material

representation of fact in connection with an application or registration with the intent

of obtaining or maintaining a registration to which it is otherwise not entitled. See In

re Bose Corp., 580 F.3d 1240, 91 USPQ2d 1938, 1939 (Fed. Cir. 2009); Swiss Watch

Int’l Inc. v. Fed’n of the Swiss Watch Indus., 101 USPQ2d 1731, 1745 (TTAB 2012).

Federal R. Civ. P. 9(b) provides that the circumstances constituting the alleged fraud

must be stated with particularity. See King Auto., Inc. v. Speedy Muffler King, Inc.,

667 F.2d 1008, 212 USPQ 801, 803 (CCPA 1981) (The “pleadings [must] contain

explicit rather than implied expressions of the circumstances constituting fraud.”).

Intent to deceive is an indispensable element of the analysis in a fraud case. See

In re Bose Corp., 91 USPQ2d at 1941. As such, intent to deceive the United States

Patent and Trademark Office (“USPTO”), whether to obtain a registration or to

maintain a registration, is an element that must be pleaded in a fraud claim. See id.

Nonetheless, intent, as a condition of mind of a person, may be averred generally. See

Fed. R. Civ. P. 9(b); Trademark Rule 2.116(a), 37 C.F.R. § 2.116(a); see also

DaimlerChrysler Corp. v. Am. Motors Corp., 94 USPQ2d 1086, 1088 (TTAB 2010).

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Cancellation No. 92079775

Allegations of fraud made “on information and belief” without allegations of “specific

facts upon which the belief is reasonably based” are insufficient. Asian and W.

Classics B.V. v. Selkow, 92 USPQ2d 1478, 1479 (TTAB 2009).

Furthermore, when a registration issues from a use-based application, as is the

case here, fraud based on nonuse of a mark occurs when a party knowingly, and with

intent to deceive the USPTO, represents that it is using the mark in commerce in

connection with the recited goods and/or services as of the filing date of the

application, when in fact it was not. See, e.g., Nationstar Mortg. LLC v. Ahmad, 112

USPQ2d 1361, 1365 (TTAB 2014) (finding that applicant knowingly made false

statements that his mark was in use in commerce for the identified services as of the

filing date of the application with the requisite intent to deceive the USPTO).

Accordingly, to sufficiently allege fraud in procuring the subject use-based

Registration, Petitioner may allege that Respondent was not using its mark in

commerce in connection with the goods identified in the application underlying the

subject Registration as of October 15, 2004, the filing date of the application, and

nonetheless knowingly represented, with an intent to deceive the USPTO, that the

mark was in use.

Here, Petitioner bases its claim of fraud on the ground that Respondent alleged a

date of first use of January 1976 in the underlying application, which it knew was

false, and did so with such reckless disregard for the truth that it was equivalent to

intent to commit fraud on the USPTO. 1 TTABVUE 11-12 (¶¶ 28-29, 34-36). This

allegation, by itself, does not support a fraud claim because “the first use date is not

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Cancellation No. 92079775

material to the Office’s decision to approve a mark for publication.” Hiraga v. Arena,

90 USPQ2d 1102, 1107 (TTAB 2006) (“[I]f the mark was in use in commerce as of the

filing date, then the claimed date of first use, even if false, does not constitute fraud

because the first use date is not material to the Office’s decision to approve a mark

for publication.”); W. Worldwide Enters. Grp. v. Qinqdao Brewery, 17 USPQ2d 1137,

1141 (TTAB 1990) (“The Board repeatedly has held that the fact that a party has set

forth an erroneous date of first use does not constitute fraud unless, inter alia, there

was no valid use of the mark until after the filing of the application.”). Moreover,

Petitioner affirmatively pleads, on information and belief, that Respondent first used

the subject mark in February 1987, 1 TTABVUE 12 (¶ 34), decades before filing the

October 15, 2004 application underlying the subject Registration.

In view of the foregoing, Petitioner has failed to state a claim of fraud on which

relief can be granted.

2. Abandonment

To plead a legally sufficient claim of abandonment, a plaintiff must allege at least

three consecutive years of non-use of the subject mark, or a period of non-use less

than three years with an intent not to resume use. See 15 U.S.C. § 1127; see also

Lewis Silkin LLP, 129 USPQ2d at 2018-20.

In support of its abandonment claim, Petitioner pleads, inter alia:

50. Upon information and belief, Registrant is no longer using the

Registered Design Mark in the United States.

51. Upon information and belief, Registrant is no longer offering

goods or services in the United States under the Registered

Design Mark.

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Cancellation No. 92079775

52. Upon information and belief, Registrant has not used the

Registered Design Mark in the United States in connection with

any goods or services since at least 2015.

53. Upon information and belief, Registrant cannot show that it is

[sic] the Registered Design Mark for any goods or services,

including the goods listed in the Cited Registration.7

54. Upon information and belief, the Registered Design Mark has not

been used as a trademark by Registrant since at least 2015.

***

56. Given the foregoing, the Cited Registration should be cancelled

on the ground of abandonment.

57. As detailed above, and upon information and belief, Registrant

abandoned the Registered Design Mark as early as 2015. Due to

this course of conduct, the Registered Design Mark no longer

holds significance as a source indicator for Registrant.

1 TTABVUE 15-16.

These allegations plead a legally sufficient claim of abandonment inasmuch as

they allege nonuse of the subject mark for more than three years, providing

Respondent with fair notice of the claim. See Lewis Silkin LLP, 129 USPQ2d at 2020.

Accordingly, Petitioner has stated a claim for abandonment on which relief can be

granted.

II. Summary; Proceeding Resumed; Dates Reset

Even though Petitioner has pleaded a legally sufficient claim of abandonment,

Respondent’s motion to dismiss the petition for cancellation is GRANTED because

7 In assessing the sufficiency of Petitioner’s abandonment claim, we have not considered

paragraph 53. 1 TTABVUE 15. As pleaded, it alleges Respondent cannot show it “is” the

subject mark, rather than “it has used” the subject mark.

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Cancellation No. 92079775

Petitioner has failed to sufficiently plead its entitlement to a statutory cause of action.

Petitioner has also failed to state a legally sufficient claim of fraud.

In keeping with general Board practice, Petitioner is allowed until TWENTY (20)

DAYS from the date of this order to file and serve an amended petition to cancel that

sufficiently pleads Petitioner’s entitlement and legally sufficient claims of

abandonment and/or fraud, as long as such claims or allegations may be

properly asserted based on the facts of the case, under the standards

explained in this order, failing which the petition for cancellation will be dismissed

with prejudice.8

Petitioner is reminded that under USPTO Rule 11.18, 37 CFR § 11.18, the factual

basis for a pleading requires either that the pleader know of facts that support the

pleading or that evidence showing the factual basis is “likely” to be obtained after a

reasonable opportunity for discovery or investigation. Further, to the extent

Petitioner is able to plead a legally sufficiently fraud claim, it is reminded that it will

bear a heavy burden because fraud must be “proven ‘to the hilt’ with clear and

convincing evidence,” leaving nothing to speculation, conjecture, or surmise. See

Smith Int’l, Inc. v. Olin Corp., 209 USPQ 1033, 1044 (TTAB 1981).

Respondent is allowed until FORTY (40) DAYS from the date of this order to file

an answer to the amended petition to cancel, if filed.

This proceeding is RESUMED. Conference, discovery and trial dates are reset as

shown in the following schedule:

8 Because we are allowing Petitioner to replead, Petitioner’s motion to amend the petition

submitted with its response to the motion to dismiss, 7 TTABVUE 11-13, is moot.

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Cancellation No. 92079775

Deadline for Discovery Conference 4/3/2023

Discovery Opens 4/3/2023

Initial Disclosures Due 5/3/2023

Expert Disclosures Due 8/31/2023

Discovery Closes 9/30/2023

Plaintiff's Pretrial Disclosures Due 11/14/2023

Plaintiff's 30-day Trial Period Ends 12/29/2023

Defendant's Pretrial Disclosures Due 1/13/2024

Defendant's 30-day Trial Period Ends 2/27/2024

Plaintiff's Rebuttal Disclosures Due 3/13/2024

Plaintiff's 15-day Rebuttal Period Ends 4/12/2024

Plaintiff's Opening Brief Due 6/11/2024

Defendant's Brief Due 7/11/2024

Plaintiff's Reply Brief Due 7/26/2024

Request for Oral Hearing (optional) Due 8/5/2024

Generally, the Federal Rules of Evidence apply to Board trials. Trial testimony is

taken and introduced out of the presence of the Board during the assigned testimony

periods. The parties may stipulate to a wide variety of matters, and many

requirements relevant to the trial phase of Board proceedings are set forth in

Trademark Rules 2.121 through 2.125, 37 C.F.R. §§ 2.121-2.125. These include

pretrial disclosures, the manner and timing of taking testimony, matters in evidence,

and the procedures for submitting and serving testimony and other evidence,

including affidavits, declarations, deposition transcripts and stipulated evidence.

Trial briefs shall be submitted in accordance with Trademark Rules 2.128(a) and (b),

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Cancellation No. 92079775

37 C.F.R. §§ 2.128(a) and (b). Oral argument at final hearing will be scheduled only

upon the timely submission of a separate notice as allowed by Trademark Rule

2.129(a), 37 C.F.R. § 2.129(a).

16