The supreme court found that an excessive, unexplained delay in filing a mandamus petition barred relief in In re Self, observing:

Relators filed this mandamus petition on August 8, 2022. The petition seeks relief within eighteen days, by August 26, which relators contend is the deadline established by the Election Code for the relief they seek. The Libertarian Party nominated the disputed candidates, who had not paid the filing fee, in April 2022. Under relators’ view of the law, those candidates’ ineligibility attached in April 2022, when they were nominated despite not paying the fee. Nearly four months passed between the facts giving rise to the relators’ claims and the filing of this mandamus action. Relators do not provide any explanation for why these claims could not have been investigated and brought to the courts with the “unusual dispatch” our precedent requires of those who seek to use the court system to alter the conduct of elections.

(footnote omitted, emphasis added). While the “unusual dispatch” concept is unique to election-law cases, Self nevertheless provides a good general reference point for when laches will bar mandamus relief in civil cases more generally. No. 22-0658 (Tex. Aug. 26, 2022).

“An unexplained delay of four months or more can constitute laches and result in denial of mandamus relief … Here, relator did not file the petition for writ of mandamus until September 22, 2021–five months after the challenged order. We conclude that relator’s unexplained delay bars their right to mandamus relief.” In re Weatherall Family Funeral Services, LLC, No. 05-21-00826-CV (Nov. 8, 2021) (mem. op.).

“An unexplained delay of four months or more can constitute laches and result in denial of mandamus relief.  Here, relators did not file the petition for writ of mandamus until July 28, 2021—more than four and a half months from the challenged oral ruling and three months after the trial court signed the complained-of order. We conclude that relators’ unexplained delay bars their right to mandamus relief.” In re Wages & White Lion Investments LLC, No. 05-21-00650-CV (July 30, 2021) (mem. op.) (citations omitted).

The appellant, Hope Hill Investments, asserted laches against the Richardson school district’s tax-collection suit, claiming an unfair seven-year delay in filing the case. The Fifth Court rejected that defense. As to the controlling law, it reminded: “‘[I]n the absence of some element of estoppel or such extraordinary circumstances as would render inequitable the enforcement of petitioners’ right after a delay, laches will not bar a suit short of the period set forth in the limitation statute.’” (emphasis added, citations omitted). Factually: “Hope Hill claims that it made a diligent effort to locate Seeley, the original property owner, but he could not be found due to RISD’s delay in filing suit. Had the District named Seeley as a defendant, Hope Hill contends that it could have asserted a cross-claim against him. However, Hope Hill’s lost ability to seek contribution or indemnity from other parties due to RISD’s delay does not, without more, raise a claim of “estoppel” or “extraordinary circumstances.” Hope Hill Investments v. Richardson ISD, No. 05-16-01519-CV (June 5, 2018) (mem. op.)

Way back in 1989, a latex products manufacturer named Ansell Healthcare Products registered a federal trademark for the phrase “Condom Sense,” which it used in advertising its Lifestyle condoms. A few years later, Ansell sought federal registration of Condom Sense as a service mark for a proposed chain of retail stores. But Ansell’s own retail stores never materialized, and it ended up licensing the mark to Condom Sense, Inc. (“CSI”), which had already opened up its own Condom Sense store in Dallas.

In 1997, CSI sold its original store on Greenville Avenue, including the right to use the Condom Sense name. That sale led to a series of competing claims over use of the name at multiple locations, including some inconclusive preliminary litigation. In 2005, Ansell — which had never used the mark itself, and which had been unaware of all the drama over its use in Texas — assigned CSI all of its interest in the federal service mark.  CSI then registered the mark in Texas, along with three related service marks that also used the Condom Sense name. CSI ended up suing the operators of the other Condom Sense stores, alleging trademark infringement under the federal Lanham Act, the Texas Trademark Act, and Texas common law. After a bench trial, the trial court ruled in favor of the competitors and cancelled registrations of both the federal and state service marks.  CSI and its owners appealed.

According to the court of appeals, CSI’s competitors were not entitled to cancellation of the state service mark even though the trial court found that CSI registered the mark fraudulently, i.e., while knowing that competitors were also using the Condom Sense mark.  Under section 16.28 of the Business & Commerce Code, the party asking the court to cancel the registration must be someone who was “injured” by the false or fraudulent procurement of the service mark registration, but the other Condom Sense owners had failed to submit any evidence that they were injured by it.  But the court of appeals sustained the trial court’s cancellation of the federal service mark, giving credit to testimony that Ansell’s licensing agreement with CSI had not been renewed past its original expiration date in 1999, and that the mark had therefore lapsed because Ansell had abandoned it. Finally, the court of appeals affirmed the trial court’s ruling in favor of the competitors’ laches and unclean hands defenses, holding that the evidence supported the lower court’s rulings that five years had been too long for CSI to sit on its rights before bringing suit, and that it had acted improperly in selling any rights to the Condom Sense name (in the 1997 sale of the original store) at a time when it was merely a licensee of Ansell’s mark.

Condom Sense, Inc. v. Alshalabi, No. 05-10-01024-CV