707    Objections to Evidence

707.01    In General

37 CFR § 2.122(a)  Rules of Evidence. The rules of evidence for proceedings before the Trademark Trial and Appeal Board are the Federal Rules of Evidence, the relevant provisions of the Federal Rules of Civil Procedure, the relevant provisions of Title 28 of the United States Code, and the provisions of this Part of Title 37 of the Code of Federal Regulations.

The introduction of evidence in inter partes proceedings before the Board is governed by the Federal Rules of Evidence, the relevant portions of the Federal Rules of Civil Procedure, the relevant provisions of Title 28 of the United States Code, and the rules of practice in trademark cases (i.e., the provisions of Part 2 of Title 37 of the Code of Federal Regulations). [ Note 1.] A party to a Board inter partes proceeding that believes that proffered evidence should, under these rules, be excluded from consideration, may raise an objection. The procedure for raising an objection to proffered evidence depends on the nature of the evidence and the ground for objection.

NOTES:

 1.   37 CFR § 2.122(a).

707.02    Objections to Notices of Reliance

707.02(a)    In General

During its testimony period, a party may make certain specified types of evidence of record by filing a notice of reliance thereon, accompanied by the evidence being offered. See generally TBMP § 702 and TBMP § 704. 37 CFR § 2.120(j), provides for the introduction, by notice of reliance, of a discovery deposition, answer to interrogatory, or admission; but specifically states that documents obtained by production under Fed. R. Civ. P. 34 may not be made of record by notice of reliance alone, except to the extent that they are admissible by notice of reliance under the provisions of 37 CFR § 2.122(e). 37 CFR § 2.122(d)(2), provides for the introduction, by notice of reliance, of a registration owned by a party to a proceeding. 37 CFR § 2.122(e)  provides for the introduction, by notice of reliance, of certain specified types of printed publications and official records. Cf. TBMP § 101.01 and TBMP § 101.02. See also TBMP § 704.03(b) and TBMP § 704.07-TBMP § 704.11 discussing introduction of other types of evidence by notice of reliance.

Some grounds for objection to a notice of reliance are waived unless promptly made (generally errors of any kind which might be obviated or cured if promptly presented) while other grounds that cannot be cured may be raised at any time. The various grounds for objection to a notice of reliance, and the time and procedure for raising them, are discussed in the sections that follow. See also TBMP § 707.04.

707.02(b)    On Procedural Grounds

Ordinarily, a procedural objection to a notice of reliance should be raised promptly, preferably by motion to strike if the defect is one that can be cured. [ Note 1.] However, if the ground for the objection is one that could not be cured even if raised promptly, the adverse party may wait and raise the procedural objection in or with its brief on the case. [ Note 2.] If the objection which is one that could have been cured promptly, and was not timely raised, the objection is deemed to be waived. [ Note 3.]

For information concerning motions to strike notices of reliance, see TBMP § 532.

NOTES:

 1.   See, e.g., Beech Aircraft Corp. v. Lightning Aircraft Co., 1 USPQ2d 1290, 1291 (TTAB 1986) (objection waived where respondent received notice of reliance without referenced publications appended thereto but did not raise the issue until briefing); Hunt-Wesson Foods, Inc. v. Riceland Foods, Inc., 201 USPQ 881, 883 (TTAB 1979) (objection that notice of reliance did not set forth relevance of appended documents raised for first time in brief waived).

 2.   See Harjo v. Pro Football Inc., 45 USPQ2d 1789, 1792 (TTAB 1998) (motion to strike trial brief as exceeding page limitation denied where evidentiary objections which were not required to be raised immediately were raised in appendices to the brief rather than in text of brief); Marshall Field & Co. v. Mrs. Fields Cookies, 25 USPQ2d 1321, 1326 (TTAB 1992) (objections to testimony on grounds including relevance and bias of witness, raised a year after depositions were taken and set out in a separate paper from brief, were not untimely and paper did not result in violation of page limitation for final briefs).

 3.   See City National Bank v. OPGI Management GP Inc./Gestion OPGI Inc., 106 USPQ2d 1668, 1672 (TTAB 2013) (petitioner’s objection to respondent’s submission via notice of reliance of a business brochure prepared by a third party overruled; "[a]ny shortcomings in respondent's original submission … under notice of reliance, such as its failure to identify the URL and when the document was actually accessed (either printed out or downloaded), are procedural deficiencies that were not timely raised by petitioner and thus have been waived); Corporacion Habanos SA v. Guantanamera Cigars Co., 102 USPQ2d 1085, 1093 (TTAB 2012) (objection that relevance of evidence not identified waived where raised for first time with brief because procedural deficiency could have been cured if objection had been raised seasonably); Beech Aircraft Corp. v. Lightning Aircraft Co., 1 USPQ2d 1290, 1291-92 (TTAB 1986) (defect of failing to append copy of printed publication identified in notice of reliance could have been cured); Board of Trustees of the University of Alabama v. BAMA-Werke Curt Baumann, 231 USPQ 408, 409 n.3 (TTAB 1986) (petitioner's objection that respondent's justification for reliance on its own discovery responses was insufficient raised for first time in petitioner's brief was untimely since defect is one which could have been cured if raised promptly); Colt Industries Operating Corp. v. Olivetti Controllo Numerico S.p.A., 221 USPQ 73, 74 n.2 (TTAB 1983) (objection that items submitted by notice of reliance were neither official records nor printed publications raised in brief sustained); Quaker Oats Co. v. Acme Feed Mills, Inc., 192 USPQ 653, 655 n.9 (TTAB 1976) (objection to notice of reliance as to statement of relevance of third-party registrations untimely); Manpower, Inc. v. Manpower Information Inc., 190 USPQ 18, 21 (TTAB 1976) (objection that notice of reliance failed to indicate relevance of materials was curable and should have been raised when notice was filed).

707.02(b)(1)    On Ground of Untimeliness

When a notice of reliance under any of the aforementioned rules is filed after the close of the offering party's testimony period, an adverse party may file a motion to strike the notice of reliance (and, thus, the evidence submitted thereunder), in its entirety, as untimely. [ Note 1.] Alternatively, an adverse party may raise this ground for objection in its brief on the case. [ Note 2.]

NOTES:

 1.   See, e.g., Maids to Order of Ohio Inc. v. Maid-to-Order Inc., 78 USPQ2d 1899, 1902 (TTAB 2006) (motion to strike supplemental notice of reliance as having been filed outside testimony period granted); Jean Patou Inc. v. Theon Inc., 18 USPQ2d 1072, 1075 (TTAB 1990) (motion to strike untimely supplemental notice of reliance to admit current status and title copy of registration in place of timely but older status and title copy granted); May Department Stores Co. v. Prince, 200 USPQ 803, 805 n.1 (TTAB 1978) (motion to strike untimely notice of reliance on interrogatory answers and certified copies of corporate records filed with the state granted).

 2.   See, e.g., Questor Corp. v. Dan Robbins & Associates, Inc., 199 USPQ 358, 361 n.3 (TTAB 1978), aff'd, 599 F.2d 1009, 202 USPQ 100 (CCPA 1979); Miss Nude Florida, Inc. v. Drost, 193 USPQ 729, 731 (TTAB 1976) (respondent's objection to untimely notice of reliance raised for the first time in its brief was not waived), pet. to Comm'r denied, 198 USPQ 485 (Comm'r 1977). Cf. Of Counsel Inc. v. Strictly of Counsel Chartered, 21 USPQ2d 1555, 1556 n.2 (TTAB 1991) (where opposer's testimony deposition was taken two days prior to opening of opposer's testimony period, and applicant first raised an untimeliness objection in its brief on the case, objection held waived, since the premature taking of the deposition could have been corrected on seasonable objection).

707.02(b)(2)    On Other Procedural Grounds

An adverse party may object to a notice of reliance, in whole or in part, on the ground that the notice does not comply with the procedural requirements of the particular rule under which it was submitted, as, for example, that a 37 CFR § 2.122(e)  notice of reliance on a printed publication does not include a copy of the printed publication, or does not indicate the general relevance thereof, [ Note 1.] or that the proffered materials are not appropriate for introduction by notice of reliance. [ Note 2.]

When, on a motion to strike a notice of reliance on the ground that it does not meet the procedural requirements of the rule under which it was filed, the Board finds that the notice is defective, but that the defect is curable, the Board may allow the relying party time to cure the defect, failing which the notice will stand stricken. [ Note 3.]

If a motion to strike a notice of reliance raises objections that cannot be resolved simply by reviewing the face of the notice of reliance (and attached documents), the Board will defer determination of the motion until final hearing. [ Note 4.] When determination of a motion to strike a notice of reliance is deferred until final hearing, the parties should argue the matter alternatively in their briefs on the case.

NOTES:

 1.   See, e.g., FUJIFILM SonoSite, Inc. v. Sonoscape Co., Ltd., 111 USPQ2d 1234, 1237 (TTAB 2014) (notice of reliance failed to sufficiently indicate the relevance of the material being offered by not specifying the relevance of the voluminous web pages submitted under two exhibits); Weyerhaeuser Co. v. Katz, 24 USPQ2d 1230, 1233 (TTAB 1992) (motion to strike granted where notice of reliance was filed under inapplicable provision of rules in that items did not constitute discovery materials admissible under 37 CFR § 2.120(j)(3) and opposer failed to explain relevance of appended copy of notice of opposition from a different case); M-Tek Inc. v. CVP Systems Inc., 17 USPQ2d 1070, 1073 (TTAB 1990) (notice of reliance failed to indicate that documents were being introduced under 37 CFR § 2.120(j)(3)(i) by specifying and making of record a copy of the particular interrogatories to which each document was provided in lieu of an interrogatory answer); Bison Corp. v. Perfecta Chemie B.V., 4 USPQ2d 1718, 1719 n.4 (TTAB 1987) (motion to strike notice of reliance granted where opposer failed to indicate how its own answers clarified, rebutted or explained those relied on by applicant); Holiday Inns, Inc. v. Monolith Enterprises, 212 USPQ 949, 951 (TTAB 1981) (motion to strike notice of reliance granted in part where applicant failed to identify specific answers sought to be introduced by answering party or indicate how they explained, clarified or rebutted answers relied on by inquiring party); Johnson & Johnson v. American Hospital Supply Corp., 187 USPQ 478, 479 (TTAB 1975) (applicant's objection to opposer's notice of reliance on letters between applicant and attorneys for third party well taken because such documents were not printed publications or official records and were not properly identified during deposition so as to lay foundation for introduction into evidence); Rogers Corp. v. Fields Plastics & Chemicals, Inc., 172 USPQ 377, 378-79 (TTAB 1972) (motion to strike notice of reliance on entire remainder of deposition granted); American Optical Corp. v. American Olean Tile Co., 169 USPQ 123, 124 (TTAB 1971) (motion to strike items in applicant's notice of reliance stricken as they were either duplicative of evidence already made of record, not deemed to be printed publications in general circulation, or, in view of the purpose stated by applicant in the notice of reliance, hearsay).

 2.   See, e.g., Research In Motion Ltd. v. NBOR Corp., 92 USPQ2d 1926, 1928 (TTAB 2009) (printed publications that include advertisements for party’s goods and services are not disqualified as proper subject matter for notice of reliance because they contain advertisements); Boyds Collection Ltd. v. Herrington & Co., 65 USPQ2d 2017, 2019-20 (TTAB 2003) (whether plaintiff's price sheets and catalogs constitute proper subject matter for a notice of reliance is not a substantive issue and may be determined from the face of the notice of reliance). See also United Global Media Group, Inc. v. Tseng, 112 USPQ2d 1039, 1046-47 (TTAB 2014) (evaluation of various documents submitted under notice of reliance).

 3.   See FUJIFILM SonoSite, Inc. v. Sonoscape Co., Ltd., 111 USPQ2d 1234, 1237 (TTAB 2014) (motion to strike exhibits under notice of reliance granted with leave to cure); Weyerhaeuser Co. v. Katz, 24 USPQ2d 1230, 1233 (TTAB 1992) (allowed 20 days to submit substitute notice of reliance remedying defects including submission of proper official record); M-Tek Inc. v. CVP Systems Inc., 17 USPQ2d 1070, 1073 (TTAB 1990) (allowed time to clarify that the documents submitted by notice of reliance were in fact produced in response to interrogatories rather than in response to document requests); Heaton Enterprises of Nevada Inc. v. Lang, 7 USPQ2d 1842, 1844 n.6 (TTAB 1988) (documents remained stricken where party did not correct deficiencies).

 4.   See FUJIFILM SonoSite, Inc. v. Sonoscape Co., Ltd., 111 USPQ2d 1234, 1236 (TTAB 2014) (motion to strike unpleaded registration deferred as admissibility depends on purpose for which it was submitted); Weyerhaeuser Co. v. Katz, 24 USPQ2d 1230, 1233 (TTAB 1992); M-Tek Inc. v. CVP Systems Inc., 17 USPQ2d 1070, 1073 (TTAB 1990) (under the circumstances, whether documents were properly admissible under 37 CFR § 2.120(j)(3)(i) and/or 2.120(j)(3)(ii) deferred).

707.02(c)    On Substantive Grounds

An adverse party may object to a notice of reliance on substantive grounds, such as that evidence offered under the notice constitutes hearsay or improper rebuttal, or is incompetent, irrelevant, or immaterial. Objections of this nature normally should be raised in or with [ Note 1.] the objecting party's brief on the case, rather than by motion to strike, unless the ground for objection is one that could be cured if raised promptly by motion to strike. [ Note 2.] Cf. TBMP § 707.02(b)(2) and TBMP § 707.03(c). This is because it is the policy of the Board not to read trial testimony or examine other trial evidence prior to final deliberations in the proceeding. See TBMP § 502.01. If a motion to strike a notice of reliance raises objections that cannot be resolved simply by reviewing the face of the notice of reliance (and attached documents), determination of the motion will be deferred by the Board until final hearing. [ Note 3.]

Evidence timely and properly introduced by notice of reliance under the applicable trademark rules generally will not be stricken, but the Board will consider any outstanding objections thereto in its evaluation of the probative value of the evidence at final hearing. [ Note 4.] Cf. TBMP § 707.03(c).

Because the parties to an inter partes Board proceeding generally will not know until final decision whether a substantive objection to a notice of reliance has been sustained, they should argue the matter alternatively in their briefs on the case.

NOTES:

 1.   See Harjo v. Pro Football Inc., 45 USPQ2d 1789, 1792 (TTAB 1998) (motion to strike trial brief as exceeding page limitation denied where evidentiary objections which were not required to be raised immediately were raised in appendices to the brief rather than in text of brief); Marshall Field & Co. v. Mrs. Fields Cookies, 25 USPQ2d 1321, 1326 (TTAB 1992) (objections to testimony on grounds including relevance and bias of witness, raised a year after depositions were taken and set out in a separate paper from brief, were not untimely and paper did not result in violation of page limitation for final briefs).

 2.   See 37 CFR § 2.123(k); Fed. R. Civ. P. 32(d)(3)(A).

 3.   See FUJIFILM SonoSite, Inc. v. Sonoscape Co., Ltd., 111 USPQ2d 1234, 1236 (TTAB 2014) (motion to strike unpleaded registration deferred as admissibility depends on purpose for which it was submitted); Weyerhaeuser Co. v. Katz, 24 USPQ2d 1230, 1233 (TTAB 1992) (whether notice of reliance sought to introduce improper rebuttal evidence deferred); M-Tek Inc. v. CVP Systems Inc., 17 USPQ2d 1070, 1073 (TTAB 1990) (whether documents submitted by notice of reliance were properly authenticated and whether they constituted hearsay deferred).

 4.   See, e.g., Jean Patou Inc. v. Theon Inc., 18 USPQ2d 1072, 1075 (TTAB 1990) (timely notice of reliance on four-year-old status and title copy of pleaded registration was not stricken); Jetzon Tire & Rubber Corp. v. General Motors Corp., 177 USPQ 467, 468 n.3 (TTAB 1973) (copies of USPTO drawings are official records and therefore not stricken; however, their probative value is limited); American Optical Corp. v. American Olean Tile Co., 169 USPQ 123, 125 (TTAB 1971) ("Certificate of Good Standing" from a U.S. district court is admissible as an official record and therefore not stricken; however its probative value determined at final hearing). See also McDonald’s Corp. v. McSweet, LLC, 112 USPQ2d 1268, 1274 (TTAB 2014) (where parties moved to strike evidence Board noted objections and took them into consideration allocating the appropriate weight to the evidence).

707.03    Objections to Trial Testimony Depositions

707.03(a)    In General

As in the case of an objection to a notice of reliance, an objection to a testimony deposition must be raised promptly if the defect is one that can be obviated or removed, failing which it is deemed waived.[ Note 1.] Parties are discouraged from filing objections that are not outcome-determinative or that do not have an effect on either their own or their adversary’s position. [ Note 2.] The objections, which are waived unless promptly raised, are basically procedural in nature. Objections to testimony depositions are not waived for failure to make them during or before the taking of the deposition, provided that the ground for objection is not one that might have been obviated or removed if presented at that time. These objections are basically substantive in nature. The grounds for objection to testimony depositions and the procedures for raising them are discussed below.

NOTES:

 1.   See, e.g., Nahshin v. Product Source International LLC, 107 USPQ2d 1257, 1259 (TTAB 2013) (objections to portions of depositions on written questions deemed waived).

12. See, e.g., UMG Recordings Inc. v. Mattel Inc., 100 USPQ2d 1868, 1875-77 (despite stipulations, opposer filed 25 pages of objections and applicant filed 100 pages of objections, essentially subverting the steps taken to streamline the process and burdening the Board; Board further set out specific objections as examples of what it overruled); Carefirst of Maryland Inc. v. FirstHealth of the Carolinas, Inc., 77 USPQ2d 1492, 1501 (TTAB 2005) ("At the oral hearing, pursuant to the Board's inquiry, counsel indicated that none of the objected-to evidence is outcome determinative. Several of the parties’ objections merely reiterate what was raised in their motions to strike, and, thus, these evidentiary issues have already been handled above in deciding the various motions. … The parties spent an inordinate amount of effort on evidentiary disputes. The gamesmanship during discovery, which then carried over into certain aspects of the trial phase, is breathtaking, and both sides are guilty of participating in this wasteful behavior.").

707.03(b)    On Procedural Grounds

707.03(b)(1)    On Ground of Untimeliness

A party may not take testimony outside of its assigned testimony period, except by stipulation of the parties approved by the Board, or on motion granted by the Board, or by order of the Board. [ Note 1.] See TBMP § 701.

When there is no such approved stipulation, granted motion or Board order, and a testimony deposition is taken after the close of the deposing party's testimony period, an adverse party may file a motion to strike the deposition, in its entirety, as untimely. See TBMP § 533.01. Alternatively, an adverse party may raise this ground for objection in its brief on the case. Cf. TBMP § 707.02(b)(1).

On the other hand, when a testimony deposition is noticed for a date prior to the opening of the deposing party's testimony period, an adverse party that fails to promptly object to the scheduled deposition on the ground of untimeliness may be found to have waived this ground for objection, because the premature scheduling of a deposition is an error which can be corrected on seasonable objection. [ Note 2.]

NOTES:

 1.   37 CFR § 2.121(a).

 2.   See Of Counsel Inc. v. Strictly of Counsel Chartered, 21 USPQ2d 1555, 1556 n.2 (TTAB 1991) (objection to timeliness of testimony deposition taken two days before period opened, but raised for the first time in brief, waived).

707.03(b)(2)    On Ground of Improper or Inadequate Notice

37 CFR § 2.123(c)  Notice of examination of witnesses. Before the depositions of witnesses shall be taken by a party, due notice in writing shall be given to the opposing party or parties, as provided in § 2.119(b), of the time when and place where the depositions will be taken, of the cause or matter in which they are to be used, and the name and address of each witness to be examined; if the name of a witness is not known, a general description sufficient to identify the witness or the particular class or group to which the witness belongs, together with a satisfactory explanation, may be given instead. Depositions may be noticed for any reasonable time and place in the United States. A deposition may not be noticed for a place in a foreign country except as provided in paragraph (a)(2) of this section. No party shall take depositions in more than one place at the same time, nor so nearly at the same time that reasonable opportunity for travel from one place of examination to the other is not available.

• * * * *
• (e)
  • (3) Every adverse party shall have full opportunity to cross-examine each witness. If pretrial disclosures or the notice of examination of witnesses served pursuant to paragraph (c) of this section are improper or inadequate with respect to any witness, an adverse party may cross-examine that witness under protest while reserving the right to object to the receipt of the testimony in evidence. Promptly after the testimony is completed, the adverse party, to preserve the objection, shall move to strike the testimony from the record, which motion will be decided on the basis of all the relevant circumstances. A motion to strike the testimony of a witness for lack of proper or adequate pretrial disclosure may seek exclusion of the entire testimony, when there was no pretrial disclosure, or may seek exclusion of that portion of the testimony that was not adequately disclosed in accordance with § 2.121(e). A motion to strike the testimony of a witness for lack of proper or adequate notice of examination must request the exclusion of the entire testimony of that witness and not only a part of that testimony.
  

Before testimony depositions on oral examination may be taken by a party, the party must give every adverse party due notice in writing of the time when and place where the depositions will be taken, the cause or matter in which they are to be used, and the name and address of each witness to be deposed. If the name of a witness is not known, a general description sufficient to identify the witness or the particular class or group to which the witness belongs, together with a satisfactory explanation, may be given instead. [ Note 1.] See TBMP § 703.01(e).

If the notice of examination of witnesses served by a party is improper or inadequate with respect to any witness, such as it does not give due (i.e., reasonable) notice, or does not identify a witness whose deposition is taken, an adverse party may cross-examine the witness under protest while reserving the right to object to the receipt of the testimony in evidence. However, promptly after the deposition is completed, the adverse party, if it wishes to preserve the objection, must move to strike the testimony from the record. [ Note 2.] See TBMP § 533.02.

A motion to strike a testimony deposition for improper or inadequate notice must request the exclusion of the entire deposition, not just a part thereof. The motion will be decided on the basis of all the relevant circumstances. [ Note 3.]

For further information concerning the motion to strike a testimony deposition for improper or inadequate notice, see TBMP § 533.02.

NOTES:

 1.   37 CFR § 2.123(c). Cf. Fed. R. Civ. P. 30(b)(1).

 2.   See 37 CFR § 2.123(e)(3). See also Beech Aircraft Corp. v. Lightning Aircraft Co., 1 USPQ2d 1290, 1291 (TTAB 1986) (while respondent's objection to notice was raised at the deposition, respondent failed to preserve the objection by moving to strike testimony promptly thereafter).

 3.   37 CFR § 2.123(e)(3).

707.03(b)(3)    On Ground of Failure to Disclose

37 CFR § 2.121(e)  However, no later than fifteen days prior to the opening of each testimony period, or on such alternate schedule as may be provided by order of the Board, the party scheduled to present evidence must disclose the name and, if not previously provided, the telephone number and address of each witness from whom it intends to take testimony, or may take testimony if the need arises, general identifying information about the witness, such as relationship to any party, including job title if employed by a party, or, if neither a party nor related to a party, occupation and job title, a general summary or list of subjects on which the witness is expected to testify, and a general summary or list of the types of documents and things which may be introduced as exhibits during the testimony of the witness. … If a party does not plan to take testimony from any witnesses, it must so state in its pretrial disclosure. …

37 CFR § 2.123(e)(3)   Every adverse party shall have full opportunity to cross-examine each witness. If pretrial disclosures or the notice of examination of witnesses served pursuant to paragraph (c) of this section are improper or inadequate with respect to any witness, an adverse party may cross-examine that witness under protest while reserving the right to object to the receipt of the testimony in evidence. Promptly after the testimony is completed, the adverse party, to preserve the objection, shall move to strike the testimony from the record, which motion will be decided on the basis of all the relevant circumstances. A motion to strike the testimony of a witness for lack of proper or adequate pretrial disclosure may seek exclusion of the entire testimony, when there was no pretrial disclosure, or may seek exclusion of that portion of the testimony that was not adequately disclosed in accordance with § 2.121(e). …

A party may object to improper or inadequate pretrial disclosures and may move to strike the testimony of a witness for lack of proper pretrial disclosure. [ Note 1.]

If pretrial disclosures or the notice of examination of witnesses served pursuant to 37 CFR § 2.123(c)  are improper or inadequate with respect to any witness, an adverse party may cross-examine that witness under protest while reserving the right to object to the receipt of the testimony in evidence. Promptly after the testimony is completed, the adverse party, to preserve the objection, must move to strike the testimony from the record, which motion will be decided on the basis of all the relevant circumstances. A motion to strike the testimony of a witness for lack of proper or adequate pretrial disclosure may seek exclusion of the entire testimony, when there was no pretrial disclosure, or may seek exclusion of that portion of the testimony that was not adequately disclosed in accordance with 37 CFR § 2.121(e). [ Note 2.]

Failure to assert an objection in a timely manner may result in the objection being waived. [ Note 3.]

NOTES:

 1.   See 37 CFR § 2.123(e)(3). See also 37 CFR § 2.118; MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES, 72 Fed. Reg. 42242, 42246 (August 1, 2007); Jules Jurgensen/Rhapsody Inc. v. Baumberger, 91 USPQ2d 1443, 1444 (TTAB 2009) (testimony stricken because identity of witness not disclosed prior to trial).

 2.   37 CFR § 2.121(e). See Jules Jurgensen/Rhapsody Inc. v. Baumberger, 91 USPQ2d 1443, 1444 (TTAB 2009) (failure to disclose testimony witness in initial disclosures considered as a relevant circumstance in determining whether to strike testimony deposition.). Cf. Entravision Communications Corp. v. Liberman Television LLC, 113 UPSQ2d 1526 (TTAB 2015) (motion to substitute expert witness and report granted, where prior disclosed witness unavailable).

 3.   See Productos Lacteos Tocumbo S.A. de C.V. v. Paleteria La Michoacana Inc., 98 USPQ2d 1921, 1927 (TTAB 2011) (objection on the basis that the witness had not been previously disclosed waived where not renewed in main brief and raised for first time in rebuttal brief), on appeal, No. 1:11-cv-01623-RC (D.D.C.).

707.03(c)    On Other Procedural Grounds and on Substantive Grounds

37 CFR § 2.123(e)(3)   Every adverse party shall have full opportunity to cross-examine each witness. If pretrial disclosures or the notice of examination of witnesses served pursuant to paragraph (c) of this section are improper or inadequate with respect to any witness, an adverse party may cross-examine that witness under protest while reserving the right to object to the receipt of the testimony in evidence. Promptly after the testimony is completed, the adverse party, to preserve the objection, shall move to strike the testimony from the record, which motion will be decided on the basis of all the relevant circumstances. A motion to strike the testimony of a witness for lack of proper or adequate pretrial disclosure may seek exclusion of the entire testimony, when there was no pretrial disclosure, or may seek exclusion of that portion of the testimony that was not adequately disclosed in accordance with § 2.121(e). A motion to strike the testimony of a witness for lack of proper or adequate notice of examination must request the exclusion of the entire testimony of that witness and not only a part of that testimony.

• • (4) All objections made at the time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by the officer upon the deposition. Evidence objected to shall be taken subject to the objections.
  
• * * * *
• (j) Effect of errors and irregularities in depositions. Rule 32(d)(1), (2), and (3)(A) and (B) of the Federal Rules of Civil Procedure shall apply to errors and irregularities in depositions. Notice will not be taken of merely formal or technical objections which shall not appear to have wrought a substantial injury to the party raising them; and in case of such injury it must be made to appear that the objection was raised at the time specified in said rule.
• (k) Objections to admissibility. Subject to the provisions of paragraph (j) of this section, objection may be made to receiving in evidence any deposition, or part thereof, or any other evidence, for any reason which would require the exclusion of the evidence from consideration. Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony must be raised at the time specified in Rule 32(d)(3)(A) of the Federal Rules of Civil Procedure. Such objections will not be considered until final hearing.

Fed. R. Civ. P. 32(d) Waiver of Objections.

• (1) To the Notice. An objection to an error or irregularity in a deposition notice is waived unless promptly served in writing on the party giving the notice.
• (2) To the Officer’s Qualification. An objection based on disqualification of the officer before whom a deposition is to be taken is waived if not made:
  • (A) before the deposition begins; or
  • (B) promptly after the basis for disqualification becomes known or, with reasonable diligence, could have been known.
  
• (3) To the Taking of the Deposition.
  • (A) Objection to Competence, Relevance, or Materiality. An objection to a deponent's competence — or to the competence, relevance, or materiality of testimony — is not waived by a failure to make the objection before or during the deposition, unless the ground for it might have been corrected at that time.
  • (B) Objection to an Error or Irregularity. An objection to an error or irregularity at an oral examination is waived if:
    • (i) it relates to the manner of taking the deposition, the form of a question or answer, the oath or affirmation, a party's conduct, or other matters that might have been corrected at that time; and
    • (ii) it is not timely made during the deposition.
  • (C) Objection to a Written Question. An objection to the form of a written question under Rule 31 is waived if not served in writing on the party submitting the question within the time for serving responsive questions or, if the question is a recross question, within 7 days after being served with it.
  
• (4) To Completing and Returning the Deposition. An objection to how the officer transcribed the testimony — or prepared, signed, certified, sealed, endorsed, sent, or otherwise dealt with the deposition — is waived unless a motion to suppress is made promptly after the error or irregularity becomes known or, with reasonable diligence, could have been known.

An adverse party may object to a testimony deposition not only on the grounds of untimeliness, see TBMP § 707.03(b)(1), and improper or inadequate notice, see TBMP § 707.03(b)(2), but also on the ground that the deposing party has not complied with one or more of the other procedural requirements specified in the rules governing the taking of testimony in Board inter partes proceedings. In addition, objection may be made to a testimony deposition on one or more substantive grounds, such as that the witness is incompetent to testify, or that the testimony is irrelevant or constitutes hearsay or improper rebuttal. The time and procedure for raising these objections is described below.

As noted in TBMP § 707.03(a), some objections to testimony depositions must be raised promptly, or they are waived. The objections, which are waived unless raised promptly, are basically procedural in nature. They include:

• (1) Objections to errors and irregularities in the notice for taking a deposition (waived unless written objection is promptly served on the party giving the notice, in the case of an objection based on improper or inadequate notice, waived unless the provisions of 37 CFR § 2.123(e)(3)  are followed), see TBMP § 707.03(b)(2);
• (2) Objections to taking a deposition because of disqualification of the officer before whom the deposition is to be taken (waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence);
• (3) Objections based on errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties;
• (4) Objections regarding the signing of testimonial deposition transcripts; [ Note 1.]; and
• (5) Errors of any kind that might be obviated, removed, or cured if promptly presented (waived unless seasonable objection thereto is made at the taking of the deposition). [ Note 2.] Moreover, notice will not be taken of merely formal or technical objections, unless they were timely raised, and appear to have caused substantial injury to the party raising them. [ Note 3.] This applies not only to errors and irregularities in the taking of a deposition, but also in the form of a deposition transcript (such as, improperly numbered pages or questions, improperly marked exhibits, etc.). [ Note 4.]

Other objections to testimony depositions are not waived for failure to make them during or before the taking of the deposition, provided that the ground for objection is not one that might have been obviated or removed if presented at that time. These objections, which are basically substantive in nature, [ Note 5.] include objections:

• (1) to the competency of a witness, or
• (2) to the competency, relevance, or materiality of testimony, or
• (3) that the testimony constitutes hearsay or improper rebuttal.

When an objection of this type could not have been obviated or removed if presented at the deposition, the Board will consider it even if the objection is raised for the first time in or with [ Note 6.] a party's brief on the case. [ Note 7.]

Substantive objections to testimony (that is, objections going to such matters as the competency of a witness, or the competency, relevance, or materiality of testimony, or the asserted hearsay or improper rebuttal nature of the testimony) are not considered by the Board prior to final hearing. [ Note 8.] Cf. TBMP § 707.02(c). This is because depositions are taken out of the presence of the Board, and it is the policy of the Board not to read trial testimony, or examine other trial evidence offered by the parties, prior to deliberations on the final decision. See TBMP § 502.01. Further, testimony regularly taken in accordance with the applicable rules ordinarily will not be stricken on the basis of a substantive objection; rather, any such objection (unless waived) will be considered by the Board in its evaluation of the probative value of the testimony at final hearing. [ Note 9.] Cf. TBMP § 707.02(c).

Similarly, if the propriety of a procedural objection to a testimony deposition (such as an objection to the form of a question) cannot be determined without reading the deposition, or examining other trial evidence, it generally will not be considered by the Board until final hearing. [ Note 10.] Cf. TBMP § 707.02(b)(2).

For the foregoing reasons, the objections described in this section (as opposed to the objection to testimony as late-taken, which may be raised by motion to strike--see TBMP § 533.01 and TBMP § 707.03(b)(1)-- and the objection based on improper or inadequate notice of the taking of a deposition, which is the subject of the motion to strike procedure described in 37 CFR § 2.123(e)(3), and TBMP § 533.02 and TBMP § 707.03(b)(2)), generally should not be raised by motion to strike. Rather, the objections should simply be made in writing at the time specified in the rules cited above, or orally "on the record" at the taking of the deposition, as appropriate. These objections, if properly asserted and not waived or rendered moot, normally will be considered by the Board in its determination of the case at final hearing. [ Note 11.] Cf. TBMP § 707.02(c).

Additionally, in order to preserve an objection that was seasonably raised at trial, a party should maintain the objection in its brief on the case, as an appendix to its brief on the case or in a separate statement of objections filed with its brief on the case. [ Note 12.] See TBMP § 707.04. However, parties are discouraged from filing objections that are not outcome-determinative or that are duplicative of issues previously raised via a motion to strike. [ Note 13.] If a party advances numerous objections during each testimonial deposition and then renews the objections in a general manner in its brief, the Board may find the general objections insufficient to preserve the individual objections originally made during the testimonial depositions. [ Note 14.]

When a deposition is taken on written questions pursuant to 37 CFR § 2.124, written objections to questions (that is, the direct questions, cross questions, redirect questions, and recross questions) may be served on the party propounding the subject questions. A party that serves written objections on a propounding party must also serve a copy of the objections on every other adverse party. [ Note 15.] See TBMP § 703.02(g). Objections to questions and answers in depositions on written questions generally are considered by the Board (unless waived) at final hearing. See TBMP § 703.02(k).

Because parties that have raised objections to testimony depositions generally will not know the disposition thereof until final decision, they should argue the matters alternatively in their briefs on the case.

NOTES:

 1.   See Syngenta Crop Protection Inc. v. Bio-Chek LLC, 90 USPQ2d 1112, 1116 (TTAB 2009) (objection that deposition transcripts were not signed waived by failing to timely raise objection – basis for objection could have been cured if objection was raised when the evidence was offered).

 2.   See 37 CFR § 2.123(e)(3)  and 37 CFR § 2.123(j); Fed. R. Civ. P. 32(d)(1), Fed. R. Civ. P. 32(d)(2), Fed. R. Civ. P. 32(d)(3)(A), and Fed. R. Civ. P. 32(d)(3)(B). See also Rocket Trademarks Pty. Ltd. v. Phard S.p.A., 98 USPQ2d 1066, 1070-71 (TTAB 2011) (objection concerning authentication made in brief but not in testimonial deposition procedural in nature and not timely raised; but same exhibits from Internet submitted under notice of reliance authenticated, and even if not submitted under notice of reliance, are admissible as long as witness testifies to general relevance and it is possible to determine the source and date of retrieval); Hornby v. TJX Cos., 87 USPQ2d 1411, 1417 (TTAB 2008) (objection regarding authentication of testimonial deposition exhibits made in brief but not in testimonial deposition itself overruled); Ross v. Analytical Technology Inc., 51 USPQ2d 1269, 1271 n.4 (TTAB 1999) (objection raised for the first time in brief to manner in which testimonial depositions were filed, waived since purported defect could have been cured if promptly raised); Chase Manhattan Bank, N.A. v. Life Care Services Corp., 227 USPQ 389, 391 (TTAB 1985) (foundation objections to a survey submitted by opposer raised for the first time in brief waived); Pass & Seymour, Inc. v. Syrelec, 224 USPQ 845, 847 (TTAB 1984) (objection on grounds of improper identification or authentication of exhibits waived since defects could have been cured if made during the deposition).

Cf. TBMP § 707.02(b)(2); Miss Nude Florida, Inc. v. Drost, 193 USPQ 729, 731 (TTAB 1976), pet. denied, 198 USPQ 485 (Comm'r 1977) (objection to untimeliness of notice of reliance raised for first time in brief was not waived since defect could not have been cured or remedied).

 3.   See 37 CFR § 2.123(j). See also, e.g., Pass & Seymour, Inc. v. Syrelec, 224 USPQ 845, 847 (TTAB 1984) (regarding technical deficiencies in marking exhibits). See also Fed. R. Civ. P. 61 and, with respect to notices of reliance, Beech Aircraft Corp. v. Lightning Aircraft Co., 1 USPQ2d 1290, 1292 n.1 (TTAB 1986) (noting precept of Fed. R. Civ. P. 61, Board stated that plaintiff's failure to serve notice of reliance was not fatal per se to the notice of reliance).

 4.   See Fed. R. Civ. P. 61; 37 CFR § 2.123(g). See, e.g., Giersch v. Scripps Networks, Inc., 90 USPQ2d 1020, 1022 (TTAB 2009) (Board will consider objection regarding improper authentication of documents in deposition, but ruling depends on facts of the case); Tampa Rico Inc. v. Puros Indios Cigars Inc., 56 USPQ2d 1382, 1384 (TTAB 2000) (improperly marked exhibits considered); Pass & Seymour, Inc. v. Syrelec, 224 USPQ 845, 847 (TTAB 1984) (Board has discretion to consider improperly marked exhibits).

 5.   See 37 CFR § 2.123(k); Fed. R. Civ. P. 32(d)(3)(A); Genesco Inc. v. Martz, 66 USPQ2d 1260 (TTAB 2003) (objection to the failure of opposer to provide applicant with the notes to which the witness was referring during his testimony was considered substantive, not procedural in nature); Wright Line Inc. v. Data Safe Services Corp., 229 USPQ 769, 769 n.4 (TTAB 1985) (objection that testimony is immaterial because it is outside scope of pleading is not waived).

 6.   See Harjo v. Pro Football Inc., 45 USPQ2d 1789, 1792 (TTAB 1998) (motion to strike trial brief as exceeding page limitation denied where evidentiary objections which were not required to be raised immediately were raised in appendices to the brief rather than in text of brief); Marshall Field & Co. v. Mrs. Fields Cookies, 25 USPQ2d 1321, 1326 (TTAB 1992) (objections to testimony on grounds including relevance and bias of witness, raised a year after depositions were taken and set out in a separate paper from brief, were not untimely and paper did not result in violation of page limitation for final briefs).

 7.   See Ava Ruha Corp. v. Mother’s Nutritional Center, Inc., 113 USPQ2d 1575, 1579 (TTAB 2015) (based on the witness’ status as CFO and personal knowledge of the records, objection based on lack of personal knowledge under Fed. R. Evid. 602 overruled; Board need not exclude evidence for danger of unfair prejudice under Fed. R. Evid. 403); City National Bank v. OPGI Management GP Inc./Gestion OPGI Inc., 106 USPQ2d 1668, 1674-75 (TTAB 2013) (objection sustained to testimony prior to witness’ employment with respondent pursuant to Federal Rule of Evidence 602); Swiss Watch International Inc. v. Federation of the Swiss Watch Industry, 101 USPQ2d 1731, 1735 (TTAB 2012) (objection sustained because deponents statements regarding information they received from third parties during telephone conversations was inadmissible hearsay); Rocket Trademarks Pty. Ltd. v. Phard S.p.A., 98 USPQ2d 1066, 1072 (TTAB 2011) (objection sustained because purported statements made by employees of retail websites to deponent, and handwritten notes taken by deponent of such statements, are hearsay).

Cf. Pass & Seymour, Inc. v. Syrelec, 224 USPQ 845, 847 (TTAB 1984) (objection on ground of hearsay with no foundation for establishing an exception waived since defect could have been cured if objection was raised during the deposition).

 8.   See, e.g., Krause v. Krause Publications Inc., 76 USPQ2d 1904, 1907 (TTAB 2005) (Board considers substantive objections in evaluating probative value of testimony at final hearing); Health-Tex Inc. v. Okabashi (U.S.) Corp., 18 USPQ2d 1409, 1411 (TTAB 1990) (objections based on relevancy and materiality deferred); Liqwacon Corp. v. Browning-Ferris Industries, Inc., 203 USPQ 305, 307 n.1 (TTAB 1979) (objections to relevance and materiality of exhibits offered at a deposition deferred); Primal Feeling Center of New England, Inc. v. Janov, 201 USPQ 44, 47-48 (TTAB 1978) (objection on hearsay grounds or that witness offered opinion testimony without adequate foundation deferred); Globe-Union Inc. v. Raven Laboratories Inc., 180 USPQ 469, 471 n.5 (TTAB 1973) (objection to testimony as lacking foundation deferred).

 9.   See Board of Regents, University of Texas System v. Southern Illinois Miners, LLC, 110 USPQ2d 1182, 1194 n.19 (TTAB 2014) ("the Board generally does not strike testimony taken in accordance with the applicable rules on the basis of substantive objections; rather, the Board considers such objections when evaluating the probative value of the testimony at final hearing."); Krause v. Krause Publications Inc., 76 USPQ2d 1904, 1907 (TTAB 2005) (Board considers substantive objections in evaluating probative value of testimony at final hearing). See also Marshall Field & Co. v. Mrs. Fields Cookies, 25 USPQ2d 1321, 1325 (TTAB 1992); Liqwacon Corp. v. Browning-Ferris Industries, Inc., 203 USPQ 305 (TTAB 1979); Primal Feeling Center of New England, Inc. v. Janov, 201 USPQ 44 (TTAB 1978); Globe-Union Inc. v. Raven Laboratories Inc., 180 USPQ 469 (TTAB 1973).

 10.   See, e.g., Globe-Union Inc. v. Raven Laboratories Inc., 180 USPQ 469, 471 n.5 (TTAB 1973) (objection to testimony as based on leading questions deferred).

 11.   See 37 CFR § 2.123(k).

 12.   See Productos Lacteos Tocumbo S.A. de C.V. v. Paleteria La Michoacana Inc., 98 USPQ2d 1921, 1928 (TTAB 2011) (objection on the basis that the witness had not been previously disclosed waived where not renewed in main brief and raised for first time in rebuttal brief), on appeal, No. 1:11-cv-01623-RC (D.D.C.); Anthony’s Pizza & Pasta International, Inc. v. Anthony’s Pizza Holding Co., 95 USPQ2d 1271, 1273 n.4 (TTAB 2009) (objection to testimony raised in deposition may be maintained in appendix to brief or by separate statement of objections) aff’d, 415 Fed. Appx. 222 (Fed. Cir. 2010); 7-Eleven, Inc. v. Wechsler, 83 USPQ2d 1715, 1718 n.25 (TTAB 2007) (objection to deposition exhibit waived because not renewed in trial brief); Wet Seal Inc. v. FD Management Inc., 82 USPQ2d 1629, 1632 (TTAB 2007) (objection to testimony waived when not renewed in brief); Kohler Co. v. Baldwin Hardware Corp., 82 USPQ2d 1100, 1104 (TTAB 2007) (objection raised at trial waived when petitioner waited until its reply brief to renew objections); Duramax Marine LLC v. R.W. Fernstrum & Co., 80 USPQ2d 1780, 1785 (TTAB 2006) (objection that witness was not a trademark expert not maintained in brief and thus waived); First Niagara Insurance Brokers Inc. v. First Niagara Financial Group Inc., 77 USPQ2d 1334, 1340 n.14 (TTAB 2005), (objection made in deposition but not renewed in brief deemed waived), rev’d on other grounds, 476 F.3d 867, 81 USPQ2d 1375 (Fed. Cir. 2007); (Hard Rock Café International (USA) Inc. v. Elsea, 56 USPQ2d 1504, 1507 n.5 (TTAB 2000) (objection to exhibit raised during deposition but not maintained in brief deemed waived); Reflange Inc. v. R-Con International, 17 USPQ2d 1125, 1126 n.4 (TTAB 1990) (objections to testimony and exhibits made during depositions deemed waived where neither party raised any objection to specific evidence in its brief); United Rum Merchants Ltd. v. Fregal, Inc., 216 USPQ 217, 218 n.4 (TTAB 1982) (party failed to pursue objection to certain insufficiently identified exhibits introduced at trial in its brief); Donut Shops Management Corp. v. Mace, 209 USPQ 615 (TTAB 1981); Medtronic, Inc. v. Medical Devices, Inc., 204 USPQ 317, 320 n.1 (TTAB 1979) (applicant's objections to opposer's main testimony and rebuttal testimony on grounds of hearsay and competency deemed waived where applicant did not repeat the objections in its brief and in fact attempted to use the rebuttal to support its own case); Volkswagenwerk Aktiengesellschaft v. Clement Wheel Co., 204 USPQ 76, 83 (TTAB 1979) (objections made during depositions but not argued in the briefs were considered to have been dropped); Fischer Gesellschaft m.b.H. v. Molnar & Co., 203 USPQ 861, 866 (TTAB 1979); Copperweld Corp. v. Astralloy-Vulcan Corp., 196 USPQ 585, 587 n.3 (TTAB 1977).

 13.   Carefirst of Maryland Inc. v. FirstHealth of the Carolinas, Inc., 77 USPQ2d 1492, 1495 (TTAB 2005) ("At the oral hearing, pursuant to the Board's inquiry, counsel indicated that none of the objected-to evidence is outcome determinative. Several of the parties’ objections merely reiterate what was raised in their motions to strike, and, thus, these evidentiary issues have already been handled above in deciding the various motions. … The parties spent an inordinate amount of effort on evidentiary disputes. The gamesmanship during discovery, which then carried over into certain aspects of the trial phase, is breathtaking, and both sides are guilty of participating in this wasteful behavior.").

 14.   See Starbucks U.S. Brands LLC v. Ruben, 78 USPQ2d 1741, 1747 (TTAB 2006) (sweeping allegations in brief insufficient to preserve individual objections originally made in testimonial deposition).

 15.   See 37 CFR § 2.124(d)(1).

707.03(d)    Refusal to Answer Deposition Question

When an objection is made to a question propounded during a testimony deposition, the question ordinarily should be answered subject to the objection. However, a witness may properly refuse to answer a question asking for information that is, for example, privileged, trade secret or otherwise protected from disclosure by the protective order in place for the case. See TBMP § 404.09.

If a deposition is being taken pursuant to a subpoena, issued pursuant to 35 U.S.C. § 24  and Fed. R. Civ. P. 45, and a witness not only objects to, but also refuses to answer, a particular question, the propounding party may obtain an immediate ruling on the propriety of the objection only by the unwieldy process of adjourning the deposition and applying, under 35 U.S.C. § 24, to the federal district court, in the jurisdiction where the deposition is being taken, for an order compelling the witness to answer. See TBMP § 404.09.

There is no mechanism for obtaining from the Board, prior to final hearing, a ruling on the propriety of an objection to a question propounded during a testimony deposition. See TBMP § 404.08 and TBMP § 707.03(c). Accordingly, where the witness in a testimony deposition refuses to answer a particular question; no court action is sought; the Board finds at final hearing that the objection was not well taken, the Board may presume that the answer would have been unfavorable to the position of the party whose witness refused to answer, or may find that the refusal to answer reduces the probative value of the witness's testimony. [ Note 1.]

For information concerning a refusal to answer a discovery deposition question, see TBMP § 404.03(a)(2) regarding deposition of non-party residing in the United States, TBMP § 404.08(c) (Objections During Deposition), TBMP § 404.09 (Discovery Depositions Compared to Testimony Depositions), TBMP § 411 (Remedy for Failure to Provide Disclosures or Discovery), and TBMP § 523 (Motion to Compel Disclosures or Discovery).

NOTES:

 1.   See Univ. of Notre Dame du Lac v. J.C. Gourmet Food Imports Co., 703 F.2d 1372, 217 USPQ 505, 510 (Fed. Cir. 1983) (no error in drawing adverse inference where witnesses inappropriately refused to answer relevant questions), aff’g 213 USPQ 594 (TTAB 1982); Levi Strauss & Co. v. R. Josephs Sportswear Inc., 28 USPQ2d 1464, 1467 (TTAB 1993) (where opposer’s objections were found to be not well taken, Board presumed that the answers would have been adverse to opposer's position); Health-Tex Inc. v. Okabashi (U.S.) Corp., 18 USPQ2d 1409, 1411 (TTAB 1990); Seligman & Latz, Inc. v. Merit Mercantile Corp., 222 USPQ 720, 723 (TTAB 1984); Ferro Corp. v. SCM Corp., 219 USPQ 346, 351 (TTAB 1983); Entex Industries, Inc. v. Milton Bradley Co., 213 USPQ 1116 (TTAB 1982); Data Packaging Corp. v. Morning Star, Inc., 212 USPQ 109, 114 n.5 (TTAB 1981); Donut Shops Management Corp. v. Mace, 209 USPQ 615, 622 n.7 (TTAB 1981); S. Rudofker's Sons, Inc. v. "42" Products, Ltd., 161 USPQ 499, 499 (TTAB 1969); Bordenkircher v. Solis Entrialgo y Cia., S. A., 100 USPQ 268, 276-278 (Comm'r 1953). Cf. Land v. Regan, 342 F.2d 92, 144 USPQ 661, 668-69 (CCPA 1965).

707.04    Waiver of Objection

A party may waive an objection to evidence by failing to raise the objection at the appropriate time. [ Note 1.] See TBMP § 707.02 and TBMP § 707.03.

For example, an objection to a notice of reliance on the ground that the notice does not comply with the procedural requirements of the particular rule under which it was submitted generally should be raised promptly. If a party fails to raise an objection of this nature promptly, the objection may be deemed waived, unless the ground for objection is one that could not have been cured even if raised promptly. See TBMP § 707.02(b)(1) and TBMP § 707.02(b)(2).

Similarly, an objection to a testimony deposition on the ground that it does not comply with the applicable procedural rules generally is waived if not raised promptly, unless the ground for objection is one which could not have been cured even if raised promptly. See TBMP § 707.03(b)(1) and TBMP § 707.03(c).

On the other hand, objections to a notice of reliance, or to a testimony deposition, on substantive grounds, such as, that the proffered evidence constitutes hearsay or improper rebuttal, or is incompetent, irrelevant, or immaterial, generally are not waived for failure to raise them promptly, unless the ground for objection is one which could have been cured if raised promptly. [ Note 2.] See TBMP § 707.02(c) and TBMP § 707.03(c).

If testimony is submitted in affidavit form by stipulation of the parties pursuant to 37 CFR § 2.123(b), any objection, which is waived if not made at deposition, must be raised promptly after receipt of the affidavit submission, failing which it is waived. [ Note 3.]

If a party fails to attend a testimony deposition, any objection, which is waived if not made at the deposition, is waived. [ Note 4.]

Additionally, by failing to preserve the objection in its brief on the case, or in an appendix to the brief on the case or in a separate statement of objections filed with the brief on the case, a party may waive an objection that was seasonably raised at trial. [ Note 5.] See TBMP 707.03(c). However, parties are discouraged from filing objections that are not outcome-determinative or that are duplicative of issues previously raised via a motion to strike. [ Note 6.]

NOTES:

 1.   See 37 CFR § 2.123(e)(3), 37 CFR § 2.123(j), and 37 CFR § 2.123(k); and Fed. R. Civ. P. 32(d)(1), Fed. R. Civ. P. 32(d)(2), Fed. R. Civ. P. 32(d)(3)(A), and Fed. R. Civ. P. 32(d)(3)(B). See, e.g. Coach Services Inc. v. Triumph Learning LLC, 96 USPQ2d 1600, 1603, n.3 (TTAB 2010), aff’d-in-part, rev’d-in-part and remanded on other grounds, 668 F.3d 1356, 101 USPQ2d 1713 (Fed. Cir. 2012).

 2.   See Hornby v. TJX Companies, 87 USPQ2d 1411, 1417 (TTAB 2008) (objection regarding authentication of testimonial deposition exhibits made in brief but not in testimonial deposition itself overruled – offering party did not have opportunity to provide authentication testimony in testimonial deposition).

 3.   See Chase Manhattan Bank, N.A. v. Life Care Services Corp., 227 USPQ 389, 391 (TTAB 1985).

 4.   See Notice of Final Rulemaking, 48 Fed. Reg. 23122, 23132 (May 23, 1983); Wright Line Inc. v. Data Safe Services Corp., 229 USPQ 769, 770 (TTAB 1985); Pass & Seymour, Inc. v. Syrelec, 224 USPQ 845, 847 (TTAB 1984).

 5.   See also General Mills Inc. v. Fage Dairy Processing Industry SA, 100 USPQ2d 1584, 1592 n.7 (TTAB 2011) (objection to testimony deemed waived because it was not maintained in brief) judgment set aside on other grounds, 110 USPQ2d 1679 (TTAB 2014) (non-precedential); Anthony’s Pizza & Pasta International, Inc. v. Anthony’s Pizza Holding Co., 95 USPQ2d 1271, 1273 n.4 (TTAB 2009) (objection to testimony raised in deposition may be maintained in appendix to brief or by separate statement of objections), aff’d, 415 Fed. Appx. 222 (Fed. Cir. 2010); 7-Eleven, Inc. v. Wechsler, 83 USPQ2d 1715, 1718 n.25 (TTAB 2007) (objection to deposition exhibit waived because not renewed in trial brief); Wet Seal Inc. v. FD Management Inc., 82 USPQ2d 1629, 1632 (TTAB 2007) (objection to testimony waived when not renewed in brief); Kohler Co. v. Baldwin Hardware Corp., 82 USPQ2d 1100, 1104 (TTAB 2007) (objections raised at trial waived when petitioner waited until its reply brief to renew objections); Duramax Marine LLC v. R.W. Fernstrum & Co., 80 USPQ2d 1780, 1785 (TTAB 2006) (objection that witness was not a trademark expert not maintained in brief and thus waived); First Niagara Insurance Brokers Inc. v. First Niagara Financial Group Inc., 77 USPQ2d 1334, 1340 n.14 (TTAB 2005) (objection made in deposition but not renewed in brief deemed waived), rev’d on other grounds, 476 F.3d 867, 81 USPQ2d 1375 (Fed. Cir. 2007); Hard Rock Café International (USA) Inc. v. Elsea, 56 USPQ2d 1504, 1507 n.5 (TTAB 2000) (objection to exhibit raised during deposition but not maintained in brief deemed waived); Reflange Inc. v. R-Con International, 17 USPQ2d 1125, 1126 n.4 (TTAB 1990) (objections to testimony and exhibits made during depositions deemed waived where neither party raised any objection to specific evidence in its brief); United Rum Merchants Ltd. v. Fregal, Inc., 216 USPQ 217, 218 n.4 (TTAB 1982) (party failed to pursue objection to certain insufficiently identified exhibits introduced at trial in its brief); Medtronic, Inc. v. Medical Devices, Inc., 204 USPQ 317, 320 n.1 (TTAB 1979) (applicant's objections to opposer's main testimony and rebuttal testimony on grounds of hearsay and competency deemed waived where applicant did not repeat the objections and in fact attempted to use the rebuttal to support its own case); Volkswagenwerk Aktiengesellschaft v. Clement Wheel Co., 204 USPQ 76, 83 (TTAB 1979) (objections made during depositions but not argued in the briefs were considered to have been dropped); Fischer Gesellschaft m.b.H. v. Molnar & Co., 203 USPQ 861, 866 (TTAB 1979); Copperweld Corp. v. Astralloy-Vulcan Corp., 196 USPQ 585, 587 n.3 (TTAB 1977).

 6.   Carefirst of Maryland Inc. v. FirstHealth of the Carolinas, Inc., 77 USPQ2d 1492, 1495 (TTAB 2005) ("At the oral hearing, pursuant to the Board's inquiry, counsel indicated that none of the objected-to evidence is outcome determinative. Several of the parties’ objections merely reiterate what was raised in their motions to strike, and, thus, these evidentiary issues have already been handled above in deciding the various motions. … The parties spent an inordinate amount of effort on evidentiary disputes. The gamesmanship during discovery, which then carried over into certain aspects of the trial phase, is breathtaking, and both sides are guilty of participating in this wasteful behavior.").