702.04(b)    ACR using Summary Judgment Briefs

For a case prosecuted on the summary judgment model of ACR, the trial and briefing periods occur in one phase. That is, the summary judgment briefs and accompanying evidentiary submissions encompass both the trial and briefing periods. Because the parties have, in essence, agreed to create the record for the case by their summary judgment submissions, testimony will be presented by affidavit or declaration, and any exhibits referenced by the affiants or declarants.

In addition to filing summary judgment briefs, the parties should file a joint stipulation of undisputed facts, and, as attachments or exhibits to their briefs, any materials that, in a typical trial, could be submitted by notice of reliance (the notice of reliance itself need not be filed). The parties are free to enter into other stipulations regarding the submission of evidence. For example, they may agree that documents and things produced in response to requests for production may be submitted as exhibits without the need for accompanying testimony. The stipulations regarding the submission of evidence remove any question about the admissibility of the evidence, but the parties may reserve the right to object to the evidence on substantive grounds such as competency, relevancy or materiality, or the weight to be accorded particular items of evidence. A party may not raise objections to the admissibility of evidence that it has stipulated into the record. [ Note 1.]

ACR summary judgment briefs may be presented either as cross motions for summary judgment or as a single motion for summary judgment. If the parties stipulate to ACR and file cross motions for summary judgment, each party is entitled to file a response to the other’s motion and a reply in support of its own motion. [ Note 2.] If the parties stipulate to ACR and the summary judgment motion is in the form of a single motion by plaintiff, then defendant may file a brief in response and only plaintiff is entitled to file a reply. [ Note 3.] In the absence of a stipulation to the contrary, the parties are limited to 25 pages for the ACR summary judgment briefs, inclusive of table of contents and cases, index of cases, description of the record, statement of the issues, recitation of facts, argument and summary. [ Note 4.] Reply briefs are limited to 10 pages unless otherwise stipulated [ Note 5.] and arguments should be restricted to rebuttal of the adverse party’s case in chief.

In using the summary judgment form of ACR, the parties must provide a stipulation that the Board may resolve any genuine issues of material fact that may be presented by the record or which may be discovered by the panel considering the case at final hearing.

If the parties decide early in the case to use the ACR motion for summary judgment model, they should file a stipulation with the Board selecting the ACR summary judgment model and setting forth the negotiated schedule for discovery and any limitation on discovery, submission of stipulations, and briefing. [ Note 6.]

For more information regarding ACR motions for summary judgment, see TBMP § 528.05(a)(2).

NOTES:

 1.   See Brooks v. Creative Arts By Calloway LLC, 93 USPQ2d 1823, 1827 (TTAB 2009) (by stipulating to introduction of affidavit and its exhibits into evidence, applicant waived its right to object to the admissibility of exhibits attached to affidavit), aff’d on other grounds, Creative Arts by Calloway, LLC v. Brooks, No. 09-cv-10488 (SDNY December 27, 2012), dismissed, No. 13-147 (unpublished) (2d Cir. March 7, 2013) .

 2.   37 CFR § 2.127(a)  and 37 CFR § 2.127(e)(1).

 3.   37 CFR § 2.127(a)  and 37 CFR § 2.127(e)(1).

 4.   37 CFR § 2.127(a). But see Chanel Inc. v. Makarczyk, 106 USPQ2d 1774, 1775 (TTAB 2013) (parties’ ACR agreement provided that "the page limit for the parties’ briefs shall be the page limit permitted for trial briefs pursuant to Trademark Rule 2.128(b).").

 5.   37 CFR § 2.127(a). But see Chanel Inc. v. Makarczyk, 106 USPQ2d 1774, 1775 (TTAB 2013) (parties’ ACR agreement provided that "the page limit for the parties’ briefs shall be the page limit permitted for trial briefs pursuant to Trademark Rule 2.128(b).").

 6.   See e.g., Chanel Inc. v. Makarczyk, 106 USPQ2d 1774, 1775 (TTAB 2013) (pursuant to their ACR stipulation, parties agreed to forgo discovery and reliance on expert testimony).