Case: 19-1547   Document: 62     Page: 1   Filed: 08/05/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                 ______________________

    KRIS KASZUBA, DBA HOLLYWOOD GROUP,
                   Appellant

                            v.

     ANDREI IANCU, UNDER SECRETARY OF
   COMMERCE FOR INTELLECTUAL PROPERTY
    AND DIRECTOR OF THE UNITED STATES
      PATENT AND TRADEMARK OFFICE,
                   Intervenor
             ______________________

                       2019-1547
                 ______________________

     Appeal from the United States Patent and Trademark
 Office, Trademark Trial and Appeal Board in No.
 92061976.
                  ______________________

                 Decided: August 5, 2020
                 ______________________

    KRIS KASZUBA, Del Mar, CA, pro se.

     THOMAS L. CASAGRANDE, Office of the Solicitor, United
 States Patent and Trademark Office, Alexandria, VA, for
 intervenor. Also represented by CHRISTINA J. HIEBER,
 THOMAS W. KRAUSE, FARHEENA YASMEEN RASHEED, ERICA
 JEUNG DICKEY.
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 2                                          KASZUBA   v. IANCU



                   ______________________

     Before O’MALLEY, BRYSON, and REYNA, Circuit Judges.
  O’MALLEY, Circuit Judge.
     This appeal stems from a cancellation proceeding be-
 fore the Trademark Trial and Appeal Board (“Board”). The
 record reveals a proceeding peppered with unnecessary fil-
 ings, ultimately concluding with sanctions in the form of
 default judgment. Finding no abuse of discretion or legal
 error in the Board’s determinations, we affirm.
                       I. BACKGROUND
     Cancellation proceedings before the Board are largely
 governed by the Federal Rules of Civil Procedure. See 37
 C.F.R. § 2.116(a). This cancellation proceeding presents a
 tangled procedural history. We discuss only those aspects
 relevant to our decision.
                        A. Pleadings
     Appellant Kris Kaszuba (“Kaszuba”) successfully reg-
 istered his mark HOLLYWOOD BEER on the Supple-
 mental Register on July 15, 2008, as Registration No.
 4,469,935. The registration was based on the mark’s pur-
 ported use in commerce for beer. On August 4, 2015, Hol-
 lywood Vodka, LLC (“HVL”) filed an application for
 cancellation of Kaszuba’s mark under Section 1064 of the
 Lanham Act. 1 HVL alleged that: (1) the Board had refused
 registration of HVL’s pending trademark application
 partly because of the registration of Kaszuba’s mark; (2)
 Kaszuba had committed fraud on the USPTO in obtaining


      1  Despite several notices from the court, Petitioner
 HVL did not file an entry of appearance in this appeal. The
 Director of the United States Patent and Trademark Office
 (“USPTO”) filed a notice of intervention pursuant to 35
 U.S.C. § 143.
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 registration of his mark; and (3) Kaszuba had not used his
 mark in commerce.
     Kaszuba filed an answer to the petition on September
 15, 2015. He followed this filing with a motion to dismiss,
 which the Board refused to consider because Kaszuba filed
 it after filing his answer. The Board subsequently con-
 ducted a discovery conference, and, upon reviewing the
 pleadings, determined that HVL had failed to properly
 plead its fraud claim. Accordingly, the Board directed HVL
 to file an amended petition repleading the fraud claim
 within fifteen days.
      It is undisputed that HVL did not meet its Friday,
 March 25, 2016 deadline to file an amended petition. In-
 stead, HVL filed serial amended petitions on March 28,
 2016 (“Amended Petition”) and March 29, 2016 (“Second
 Amended Petition”), respectively. 2 These amended peti-
 tions were only a few days late, and differed materially in
 just one respect: the Second Amended Petition corrected a
 typographical error, specifying that in its “Claim 1,” HVL
 was seeking cancellation based on “fraud” not “abandon-
 ment.” In response, Kaszuba filed a motion to dismiss, as-
 serting, inter alia, that HVL’s amended pleadings were
 untimely and that HVL did not have a real interest in the
 cancellation proceeding. HVL opposed the motion to dis-
 miss, arguing that the Board, in its discretion, should ac-
 cept the untimely filing because of excusable neglect and
 that it had plausibly alleged a real interest in the proceed-
 ing.
     The Board construed HVL’s excusable neglect argu-
 ments as a request to reopen the time to file HVL’s
 amended petition and to accept the Second Amended Peti-
 tion as the operative pleading in the matter. J.A. 366



     2  The Board received paper copies of these petitions
 on March 31, 2016, and April 4, 2016, respectively.
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 (citing Fed. R. Civ. P 6(b)). It granted HVL’s request based
 on excusable neglect after conducting an analysis of the
 factors articulated in Pioneer Investment Services Co. v.
 Brunswick Associates L.P., 507 U.S. 380 (1993). J.A.
 366–69. The Board also concluded that HVL had (1) suffi-
 ciently pled entitlement to bring this cancellation proceed-
 ing; and (2) adequately pled its fraud claim; and (3) failed
 to plead the elements of an abandonment claim. J.A. 372–
 73.
                        B. Discovery
      Like the pleadings stage, discovery was belabored. On
 January 23, 2017, in response to Kaszuba’s motion to dis-
 qualify HVL’s newly appointed counsel, the Board issued
 an order denying the motion and noting that “[p]rogress in
 this case has been delayed significantly based on the filings
 of both parties.” J.A. 528. The Board required Kaszuba to
 obtain leave of the Board’s Interlocutory Attorney before
 filing any future submissions in the case. It did not require
 HVL to do the same because HVL had retained new coun-
 sel.
     On November 27, 2017, the Board granted-in-part
 HVL’s motion to compel discovery after Kaszuba failed to
 respond to interrogatories and document requests. The
 Board ordered Kaszuba to provide discovery but denied
 HVL’s motion to the extent HVL requested sanctions
 against Kaszuba. At the same time, the Board warned
 Kaszuba that if he failed to respond to the discovery, HVL’s
 “remedy may lie in a renewed motion for sanctions, includ-
 ing entry of judgment as appropriate.” J.A. 744. The Board
 also required both parties to seek leave before filing any
 motions.
     Rather than responding to the discovery, Kaszuba filed
 a request for permission to submit a request for reconsid-
 eration of the Board’s November 27, 2017 order. After con-
 ducting a telephone conference, the Board denied this
 request.
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     Kaszuba again failed to respond to the discovery re-
 quests. Another round of a motion for sanctions (filed by
 HVL without leave), denial, and a motion for reconsidera-
 tion (filed by Kaszuba without leave), and denial followed.
 In its denials of these motions, the Board remarked that
 Kaszuba had “deliberately sought to evade and frustrate”
 HVL’s efforts to obtain discovery. J.A. 821. Although the
 Board concluded that imposing sanctions would be unduly
 harsh, and gave Kaszuba an extension to serve the delayed
 discovery, it again warned Kaszuba that if he failed to com-
 ply with the discovery order, judgment would be entered
 against him on motion by HVL. J.A. 822. Undeterred,
 Kaszuba continued to file additional “communications”
 with the Board, seeking reconsideration of its orders. He
 also filed two untimely petitions with the Director alleging
 unfair treatment by the Board, despite the Board granting
 him a third extension to serve the delayed discovery.
      Kaszuba never served the requested discovery. After
 the time for service had passed, HVL filed a renewed mo-
 tion for sanctions after obtaining leave from the Board,
 seeking either an entry of judgment against Kaszuba or an
 order precluding Kaszuba from introducing any evidence
 at trial. On December 13, 2018, the Board granted the mo-
 tion for sanctions—this time entering judgment against
 Kaszuba. The Board recognized in its decision that default
 judgment is a harsh remedy. It found, however, that it was
 warranted under the circumstances because “no less dras-
 tic remedy would be effective and there is a strong showing
 of willful evasion.” J.A. 5.
     Kaszuba timely filed a notice of appeal. We have juris-
 diction under 28 U.S.C. § 1295(a)(4)(B).
                       II. DISCUSSION
      We review the Board’s legal conclusions de novo, and
 its factual findings for substantial evidence. In re Pacer
 Tech., 338 F.3d 1348, 1349 (Fed. Cir. 2003) (citations omit-
 ted).    On appeal, Kaszuba argues that the Board
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 (1) impermissibly allowed HVL’s “untimely” and “futile”
 amendments to the petition; (2) erred in denying Kaszuba’s
 motion to dismiss for failure to plead entitlement to the
 cancellation proceeding and fraud; and (3) abused its dis-
 cretion in imposing sanctions and entering default judg-
 ment against Kaszuba. We address each issue in turn.
                    A. Excusable Neglect
     After analyzing HVL’s claim of excusable neglect under
 the four factors identified in Pioneer Investment Services
 Co., the Board accepted the Second Amended petition even
 though it was filed out of time. In Pioneer, addressing the
 meaning of “excusable neglect” (as used in the Federal
 Rules), the Supreme Court explained that the determina-
 tion is:
     [A]t bottom an equitable one, taking account of all
     relevant circumstances surrounding the party's
     omission. These include . . . [1] the danger of prej-
     udice to the [non-movant], [2] the length of the de-
     lay and its potential impact on judicial proceedings,
     [3] the reason for the delay, including whether it
     was within the reasonable control of the movant,
     and [4] whether the movant acted in good faith.
 507 U.S. at 395. We have endorsed the Board’s use of the
 Pioneer factors for determining excusable neglect in the
 context of its own regulations. FirstHealth of Carolinas,
 Inc. v. CareFirst of Maryland, Inc., 479 F.3d 825, 828–29
 (Fed. Cir. 2007). We review the Board’s application of the
 factors for an abuse of discretion. Id.
     On appeal, Kaszuba argues that the Board erred in its
 excusable neglect determination. Specifically, Kaszuba
 contends that the Board combined the first two factors and
 overlooked the fact that HVL filed the amended petitions
 seven months after the initial petition. Appellant’s Br. 13.
 In Kaszuba’s view, this negates the Board’s finding that
 HVL’s delay was “short.” Kaszuba therefore asks us to
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 KASZUBA   v. IANCU                                          7



 reverse the Board’s ruling. We see no error or abuse of dis-
 cretion in the Board’s analysis.
      With respect to the first Pioneer factor, the Board found
 that there was no evidence of prejudice to Kaszuba by reo-
 pening the time for HVL for file its amended petition. The
 Board did not see any “surprise” to Kaszuba or disruption
 to the orderly administration of the proceeding on account
 of the minimally delayed filing. As to the second factor, the
 Board determined that the delay was not significant. HVL
 filed an amended petition only three days out of time, and
 most of that period fell over a weekend. The Board deter-
 mined that the third factor (reason for delay) was within
 HVL’s reasonable control. As to the fourth factor (bad
 faith), the Board concluded that there was no allegation or
 evidence of any bad faith. Considering the four factors to-
 gether, the Board found that the lack of prejudice out-
 weighs the fact that the delay was caused by HVL’s
 negligence. It therefore concluded that HVL had estab-
 lished excusable neglect.
     We have previously affirmed the Board’s refusal to find
 excusable neglect where counsel did not provide an expla-
 nation as to why other authorized individuals in the same
 firm could not have assumed responsibility for the case.
 See FirstHealth, 479 F.3d at 829 (finding no excusable ne-
 glect where the second and third factors weighed against
 such a finding). But, as the Supreme Court has explained,
 the excusable neglect inquiry is an equitable one, and the
 Board properly considered all the circumstances surround-
 ing HVL’s delay. Here, as the Board noted, the delay was
 short. Given these circumstances, we see no abuse of dis-
 cretion in the Board’s determination of excusable neglect. 3



     3   We reject Kaszuba’s contention that HVL’s filing
 was, in fact, delayed by seven months. Kaszuba either mis-
 understands or misrepresents the procedural posture at
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 8                                            KASZUBA   v. IANCU



      Having determined that there was no abuse of discre-
 tion in excusing the three-day delay in HVL’s filing of its
 amended petition, we now turn to the remaining issues on
 appeal with the understanding that HVL’s Second
 Amended Petition is the operative petition in this proceed-
 ing.
                    B. Motion to Dismiss
      The Board’s denial of a motion to dismiss pursuant to
 Rule 12(b)(6) is a question of law that we review de novo.
 See Sunrise Jewelry Mfg. Corp. v. Fred S.A., 175 F.3d 1322,
 1324 (Fed. Cir. 1999). On review, we accept the non-mo-
 vant’s allegations as true and draw all reasonable infer-
 ences in the non-movant’s favor. Id. “Dismissal is
 appropriate ‘if it is clear that no relief could be granted un-
 der any set of facts that could be proved consistent with the
 allegations.’” Young v. AGB Corp., 152 F.3d 1377, 1379
 (Fed. Cir. 1998) (quoting Abbott Labs. v. Brennan, 952 F.2d
 1346, 1353 (Fed. Cir. 1991)). On appeal, Kaszuba chal-
 lenges the Board’s determination that HVL sufficiently
 pled entitlement to bring this cancellation proceeding and
 its fraud claim. We address each in turn.
            1. Entitlement to Seek Cancellation
     We note, as we have in other recent cases, that it is im-
 proper to discuss requirements for establishing a statutory
 cause of action in terms of “standing.” Lexmark Int’l, Inc.
 v. Static Control Components, Inc., 572 U.S. 118, 128 n.4
 (2014); Australian Therapeutic v. Naked TM, LLC, No. 19-
 1567, Slip. Op. at 5 (Fed. Cir. July 27, 2020); Ritchie v.
 Simpson, 170 F.3d 1092, 1094 (Fed. Cir. 1999) (“‘case’ and


 issue. Kaszuba answered HVL’s initial petition, and the
 Board instituted the proceeding. It was only after a discov-
 ery conference months later that the Board directed HVL
 to amend its petition, which HVL did, albeit three days
 late.
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 ‘controversy’ restrictions for standing do not apply to mat-
 ters before administrative agencies and boards, such as the
 [US]PTO.”). Kaszuba and the Board both make this mis-
 take in this cancellation proceeding, as does the Director.
 The requirements to bring a cancellation proceeding under
 15 U.S.C. § 1064 are appropriately viewed as interpreta-
 tions of a statutory cause of action. See Empresa Cubana
 Del Tabaco v. General Cigar Co., Inc., 753 F.3d 1270, 1275
 (Fed. Cir. 2014) (citing Lexmark, 572 U.S. at 125–28).
      Section 1064 permits a petitioner to seek cancellation
 of a registered trademark if he believes that he is or will be
 damaged by the registered trademark. Id. The petitioner
 must demonstrate (1) a real interest in the proceeding and
 (2) a reasonable belief of damage. Empresa Cubana, 753
 F.3d at 1275. These “element[s] of a cause of action . . .
 must be adequately alleged at the pleading stage in order
 for the case to proceed.” Lexmark, 572 U.S. at 134 n.6 (cit-
 ing Ashcroft v. Iqbal, 556 U.S. 662, 678–679 (2009)). For
 purposes of our review, we “accept as true all well-pled and
 material allegations of the complaint, and must construe
 the complaint in favor of the complaining party.” Ritchie,
 170 F.3d at 1097.
      Kaszuba argues that HVL did not adequately plead
 “standing” to bring the cancellation proceeding because it
 failed to allege a reasonable belief of damage from
 Kaszuba’s registered mark. Appellant’s Br. 10. In
 Kaszuba’s view, HVL should have addressed the other is-
 sues raised in the Board’s rejection before it could allege a
 reasonable belief of damage from Kaszuba’s mark. Id.
 at 11. Kaszuba also challenges HVL’s ownership of the re-
 jected trademark application, arguing that, without an
 ownership interest in the application, HVL cannot bring
 this cancellation proceeding. Id. at 9–10. Kaszuba’s argu-
 ments are meritless.
     A petitioner may demonstrate entitlement to seek can-
 cellation of a registered mark if the USPTO rejects its
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 10                                          KASZUBA   v. IANCU



 trademark application based on a likelihood of confusion
 with the registered mark. See Empresa Cubana, 753 F.3d
 at 1274–75. In Empresa Cubana, we held that petitioner’s
 trademark application is a “legitimate commercial inter-
 est,” satisfying the real interest requirement. Id. And, we
 explained that “blocking” of a petitioner’s trademark appli-
 cation was sufficient to demonstrate a reasonable belief of
 damage. Id. HVL’s Second Amended Petition included al-
 legations along exactly these lines.
     Specifically, HVL pled a real interest in the proceeding
 because it stated that its predecessors-in-interest filed
 Trademark Application No. 86/069,833, to register the
 HOLLYWOOD VODKA mark. J.A. 260–61. HVL also al-
 leged that it acquired all interest and goodwill in that ap-
 plication from the original applicants by virtue of an
 assignment. J.A. 261. And, HVL alleged that the USPTO
 rejected its application based on a likelihood of confusion
 with Kaszuba’s registered HOLLYWOOD BEER mark.
 Thus, HVL sufficiently pled both the real interest and rea-
 sonable belief of damage elements of the cause of action un-
 der § 1064. This is hardly a case, therefore, where the
 petition contains general allegations of harm. See e.g.
 Bank v. Al Johnson’s Swedish Rest. & Butik, Inc., 795 F.
 App’x 822, 825 (Fed. Cir. 2019) (finding claimant had failed
 to plead a reasonable basis for his belief of damage where
 he alleged that the Goats on the Roof Registration was “of-
 fensive to numerous persons” including himself).
     We also reject Kaszuba’s arguments based on HVL’s al-
 leged lack of ownership in the HOLLYWOOD VODKA ap-
 plication. First, at the pleadings stage, “the facts asserted
 by [the petitioner] need not prove his case on the merits.”
 Ritchie, 170 F.3d at 1098. Of course, HVL’s allegations do
 not conclusively establish entitlement to bring this cancel-
 lation proceeding and it must prove its case. But, as dis-
 cussed above, HVL’s allegations survive a motion to
 dismiss. Second, we have recently held that “neither
 § 1064 nor our precedent require that a petitioner in a
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 KASZUBA   v. IANCU                                        11



 cancellation proceeding must prove that it has proprietary
 rights in its own mark in order to demonstrate a real inter-
 est in the proceeding and a belief of damage.” Australian
 Therapeutic, Slip. Op. at 7. Accordingly, the Board did not
 err in concluding that HVL sufficiently pled entitlement to
 bring this cancellation proceeding.
                          2. Fraud
     “Fraud in procuring a trademark registration or re-
 newal occurs when an applicant knowingly makes false,
 material representations of fact in connection with his ap-
 plication.” In re Bose Corp., 580 F.3d 1240, 1243 (Fed. Cir.
 2009) (internal quotations and citations omitted). Federal
 Rule of Civil Procedure 9(b), applicable to Board proceed-
 ings under 37 C.F.R. § 2.116(a), requires that “[i]n alleging
 fraud or mistake, a party must state with particularity the
 circumstances constituting fraud or mistake.” Fed. R. Civ.
 P. 9(b).     But, the rule explains, “[m]alice, intent,
 knowledge, and other conditions of a person’s mind may be
 averred generally.” Id. We have construed the rule to re-
 quire “identification of the specific who, what, when,
 where, and how of the material misrepresentation or omis-
 sion committed before the [US]PTO.” Exergen Corp. v.
 Wal-Mart Stores, Inc., 575 F.3d 1312, 1328 (Fed. Cir. 2009)
 (construing Rule 9 in the context of pleading inequitable
 conduct in patent cases).
     The Board concluded that HVL had sufficiently pled its
 claim of fraud by alleging that: (1) Kaszuba submitted fab-
 ricated specimens during prosecution of his trademark; (2)
 Kaszuba knew that his representation was false at the time
 he signed the statement of use in his application; (3) this
 false representation was material to the USPTO’s exami-
 nation of Kaszuba’s application for registrability; and (4)
 Kaszuba intended to deceive the USPTO into issuing the
 registration. J.A. 371.
     Kaszuba argues that, contrary to the Board’s conclu-
 sion, HVL did not plead fraud with a heightened degree of
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 12                                          KASZUBA   v. IANCU



 particularity and did not allege any instances of willful or
 knowingly-made false representations during prosecution
 of the application. Appellant’s Br. 15. Kaszuba takes issue
 with the fact that HVL alleged fraudulent representations
 “on information and belief.” Id. He also contends that
 HVL’s fraud allegations are premised on allegations that
 Kaszuba “knew or should have known” that his statements
 were false. Id. Such allegations, according to Kaszuba, al-
 lege mere negligence, not fraud or intent to deceive. Id.
 at 16. We are not convinced.
     As the Director points out, Kaszuba misunderstands
 Rule 12(b)(6) and the Board’s orders. Director’s Br. 41–43.
 For one, Kaszuba points to cases that discuss the require-
 ments of proving allegations of fraud and intent to deceive.
 But on a motion to dismiss pursuant to Rule 12(b)(6), we
 are not concerned with whether HVL can prove its allega-
 tions of fraud and intent to deceive on the merits. Instead,
 we look to whether HVL has pled its fraud claim with par-
 ticularity. We conclude that it has.
     In its Second Amended Petition, HVL alleged that, pur-
 suant to applicable federal regulations, Kaszuba was re-
 quired to register his beer label on the Certificate of Label
 Approval (“COLA”) registry before selling beer in com-
 merce. J.A. 262. HVL alleged that no such label was reg-
 istered on the COLA registry, even though Kaszuba
 represented to the USPTO during prosecution of his trade-
 mark registration application that he was selling beer in
 commerce. HVL also alleged that Kaszuba knowingly
 made false material statements to the USPTO by stating
 that the HOLLYWOOD BEER mark was in use on goods
 as of the date of the application. J.A. 264. And, HVL al-
 leged that Kaszuba submitted false specimens of labels to
 fraudulently induce the USPTO to issue his use-based
 trademark registration. Id. HVL alleged that Kaszuba
 knew that the HOLLYWOOD BEER mark was not in use
 in commerce on beer as of the filing date of his application.
 J.A. 265. Finally, HVL alleged that Kaszuba similarly
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 KASZUBA   v. IANCU                                         13



 misrepresented to the USPTO that the HOLLYWOOD
 BEER mark was in use on goods as of the date of filing his
 Section 8 Affidavit in order to maintain his registration of
 the mark. J.A. 266.
     These allegations, taken together, provide the “specific
 who, what, when, where, and how of the material misrep-
 resentation or omission committed before the [US]PTO.”
 Exergen Corp., 575 F.3d at 1328. 4 Accordingly, we hold
 that the Board did not err in concluding that HVL suffi-
 ciently pled its fraud claim.
                      C. Default Judgment
     In cases of “repeated failure to comply with reasonable
 orders of the . . . Board, when it is apparent that a lesser
 sanction would not be effective[,]” the Board may order ap-
 propriate sanctions as defined in Trademark Rule
 2.120(g)(1) and Fed. R. Civ. P. 37(b)(2), including entry of
 judgment. Benedict v. Super Bakery, Inc., 665 F.3d 1263,
 1268–69 (Fed. Cir. 2011). We review decisions concerning
 discovery sanctions for abuse of discretion. Carolina Ex-
 ports Int’l, Inc. v. Bulgari, S.p.A., 108 F.3d 1394 (Fed. Cir.
 1997).
     Kaszuba argues that the cancellation of his mark as a
 sanction was unjust and based on “erroneous and inade-
 quate findings.” Appellant’s Br. 21. He laments being un-
 able to have his day in court and being denied his right to
 be heard on the merits. But, Kaszuba does not offer any
 explanation for his refusal to comply with the Board’s or-
 ders compelling discovery, despite the multiple extensions
 afforded to him. Nor does he provide any basis for us to


     4   Kaszuba also argues that the “late-filed” Amended
 Petition pled “abandonment,” not fraud. Appellant’s
 Br. 15. We reject this argument because it focuses on a ty-
 pographical error in HVL’s Amended Petition that was cor-
 rected by HVL in the operative Second Amended Petition.
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 14                                          KASZUBA   v. IANCU



 conclude that the Board abused its discretion in imposing
 the sanction of default judgment. Instead, Kaszuba con-
 tends that it was unjust to cancel his mark given the “con-
 fusion” regarding the operative pleading, the contention
 regarding which of the attorneys represented HVL, and the
 fact that the discovery was outside the scope of the un-
 dismissed claim at issue. Appellant’s Br. 21. We do not
 agree.
     The record supports the conclusion that the Board did
 not abuse its discretion in imposing the sanction of default
 judgment, harsh as it may be. The Board found that no
 less drastic remedy would be effective and that there was
 a strong showing of willful evasion by Kaszuba. See J.A. 5
 (“We believe [such a] situation exists here.”). In entering
 default judgment, the Board concluded that, rather than
 complying with its orders, Kaszuba “repeatedly and will-
 fully acted in a manner to evade” the discovery requests.
     We see no abuse of discretion here. The November 27,
 2017 Order compelling discovery warned Kaszuba that he
 was risking default judgment by not responding to the dis-
 covery. In subsequent orders and communications, the
 Board repeatedly reminded Kaszuba to comply with the
 November 27, 2017 Order. It also denied HVL’s initial mo-
 tions for sanctions, and gave Kaszuba multiple extensions
 to comply with the November 27, 2017 Order. Rather than
 complying with the discovery order, Kaszuba chose to file
 untimely petitions with the Director requesting review of
 the Board’s orders and alleging unfair treatment by the
 Board. Kaszuba never served the discovery responses.
 Like the trademark owner in Benedict, Kaszuba “continu-
 ally failed to comply with Board orders, and . . . hampered
 reasonable procedures appropriate to resolution of this
 trademark conflict [and] . . . offered no explanation of why
 no discovery responses had been made.” Benedict, 665 F.3d
 at 1269. Accordingly, we conclude that the Board did not
 abuse its discretion in entering default judgment against
 Kaszuba.
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 KASZUBA   v. IANCU                                        15



                        CONCLUSION
     We have considered Kaszuba’s remaining arguments
 and find them unpersuasive. For the foregoing reasons,
 the decision of the Board is affirmed.
                        AFFIRMED
                           COSTS
     The parties shall bear their own costs.
