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.).