702.04(e) Utilizing Stipulations in Non-ACR Board cases
Parties may utilize stipulations of facts and evidence to realize cost efficiencies in non-ACR cases. They may stipulate to the entire record, to portions of the record, or to particular facts. [ Note 1.] Parties may stipulate to ACR-type efficiencies at any stage of a proceeding in order to expedite the remainder of the trial schedule.
A list of cases in which the parties have used stipulations to expedite discovery, trial and/or briefing is provided at the USPTO web site at http://www.uspto.gov/trademarks/process/appeal/acrcase_list.doc. See also TBMP § 705regarding stipulated evidence.
NOTES:
1. See, e.g., Harry Winston, Inc. v. Bruce Winston Gem Corp., 111 USPQ2d 1419, 1426 (TTAB 2014) (stipulation to submission of witness declarations and discovery depositions, the authenticity of certain documents, retail prices of opposers’ goods, the fact that advertisements and news articles refer to opposers, and press clippings are representative of the media in which opposers advertise); Inter IKEA Systems B.V. v. Akea, LLC, 110 USPQ2d 1734, 1738 (2014) (parties filed joint stipulation that testimony could be submitted by declaration or affidavit subject to cross-examination upon request, and all documents produced in response to a request for production of documents were deemed authentic business records and were admissible subject to any objections other than authenticity); Board of Regents, University of Texas System v. Southern Illinois Miners, LLC, 110 USPQ2d 1182, 1186 (TTAB 2014) (stipulation to the admission and use of certain produced documents and waiver of objections based on authenticity or hearsay as to those documents); Miller v. Miller, 105 USPQ2d 1615, 1617 n.6 (TTAB 2013) (parties stipulated to testimony by affidavit and provided a stipulation of undisputed facts); Blackhorse v. Pro-Football Inc., 111 USPQ2d 1080, 1084-85 (TTAB 2014) (parties stipulated that the record of a prior proceeding may be submitted into evidence under notice of reliance reserving the right to object based on relevance), on appeal, No. 1:14-cv-01043 (E.D. Va.); Hunt Control Systems Inc. v. Koninklijke Philips Electronics N.V., 98 USPQ2d 1558, 1563 (TTAB 2011) (parties stipulated to authenticity of produced documents and to the introduction of testimony in affidavit or declaration form, with certain guidelines); Kistner Concrete Products Inc. v. Contech Arch Technologies Inc., 97 USPQ2d 1912, 1915 (TTAB 2011) (parties stipulated to authenticity of produced documents); Brooks v. Creative Arts by Calloway, LLC, 93 USPQ2d 1823, 1824-25 (TTAB 2010) (parties stipulated to admission of various testimony declarations and to facts), aff’d on other grounds, Creative Arts by Calloway, LLC v. Brooks, No. 09-cv- 10488 (S.D.N.Y. Dec. 27, 2012), dismissed, No. 13-147 (unpublished) (2d Cir. March 7, 2013); UMG Recordings Inc. v. O’Rourke, 92 USPQ2d 1042, 1044 (TTAB 2009) (parties stipulated to introduce testimony by declaration and to live cross-examination); Boston Red Sox Baseball Club LP v. Sherman, 88 USPQ2d 1581, 1585 (TTAB 2008) (parties stipulated to testimony by declaration, with exhibits); Bass Pro Trademarks LLC v. Sportsman's Warehouse Inc., 89 USPQ2d 1844, 1847 n.5 (TTAB 2008) (stipulation to use discovery depositions as trial testimony); Micro Motion Inc. v. Danfoss A/S, 49 USPQ2d 1628, 1629 n.2 (TTAB 1998) (stipulation to use evidence and exhibits submitted in connection with a motion for summary judgment at trial); Domino's Pizza Inc. v. Little Caesar Enterprises Inc., 7 USPQ2d 1359, 1360 (TTAB 1988) (stipulations to facts by applicant, testimony by affidavit by opposer, and use of certain testimonial depositions taken in prior civil action); Wilderness Group, Inc. v. Western Recreational Vehicles, Inc., 222 USPQ 1012, 1013 (TTAB 1984) (stipulated to the filing of facts and exhibits on behalf of each party during each party’s testimony period); Hayes Microcomputer Products, Inc. v. Business Computer Corp., 219 USPQ 634, 635 (TTAB 1983) (parties stipulated to facts, legal conclusions and testimony, including cross-examination and redirect examination with respect to stipulated testimony).