On September 3, 2014, the US Trademark Trial and Appeal Board (TTAB) issued a decision in Birlinn Limited v. Angus Stewart determining that a notice of opposition and two extension requests that were signed by a foreign attorney who is not authorized to practice before the US Patent and Trademark Office (USPTO) are curable defects (Opposition No. 91214145 (TTAB Sept. 3, 2014)).

After Angus Stewart filed an application to register a trademark with the USPTO, Birlinn Limited filed two requests for an extension of time to oppose followed by a notice of opposition, all of which were signed by a UK-based attorney who is not entitled to practice before the USPTO. The TTAB's automated system granted the requests and instituted the opposition before the papers were reviewed by any TTAB personnel. Angus Stewart then filed a motion to dismiss the notice of opposition on the ground that neither the extension requests nor the notice of opposition were filed and served by a person authorized to practice before the USPTO. Angus Stewart also claimed that this defect was incurable and the opposition should be dismissed as a nullity. In response, Birlinn's current counsel acknowledged that the UK attorney is not authorized to represent others before the USPTO but argued this defect was cured by the filing and service of an amended notice of opposition signed by current counsel who is authorized to practice before the USPTO.

The TTAB identified the issues before it as:

The TTAB considered Trademark Rules 2.101(b) and 2.102(a), which require that notices of oppositions and extensions of time to file a notice of opposition be signed by an attorney or an authorized representative, as defined by 37 CFR §§ 11.1 and 11.14(b). Birlinn did not claim that the UK attorney qualified as an attorney or authorized representative and so the TTAB determined the papers were not properly signed.

Next, the TTAB turned to whether the defect could be cured. Relying on Trademark Rule 2.119(e), which provides that the TTAB will not refuse consideration of an unsigned paper filed in an inter partes proceeding if the party subsequently provides a signed copy of the unsigned paper within a certain prescribed time limit, the TTAB concluded that Rule 2.119(e) should apply in this case. Therefore the TTAB:

The TTAB noted, however, that its holding is narrow and limited to the specific situation of this case where the papers were signed by a person not properly qualified before the USPTO and there was no evidence of intentional misconduct by the opposer.