702.02 Introduction of Evidence
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.] Cf. TBMP § 101.01 and TBMP § 101.02.
Within the parameters of these rules, there are a number of ways to introduce evidence into the record in a proceeding before the Board. Evidence may be introduced in the form of testimony depositions taken by a party during its testimony period, and documents and other exhibits may be made of record with appropriate identification and introduction by the witness during the course of the deposition. See generally TBMP § 703 regarding testimony depositions. See also TBMP § 704.13 regarding introducing testimony from another proceeding, and TBMP § 530 regarding motions to use testimony from another proceeding. Certain specified types of evidence, including official records and printed publications as described in 37 CFR § 2.122(e) and discovery responses under 37 CFR § 2.120(j), may, but need not, be introduced in connection with the testimony of a witness. Such evidence may instead be made of record by filing the materials with the Board under cover of a notice of reliance during the testimony period of the offering party. [ Note 2.] See generally TBMP § 704.02 regarding the types of evidence that may be submitted by notice of reliance and the requirements for the introduction of such evidence by notice of reliance. In addition, the parties may enter into a wide variety of stipulations concerning the timing and/or introduction of specified matter into evidence. See TBMP § 705 regarding stipulated evidence. For example, the parties may stipulate that matter otherwise improper for a notice of reliance (such as documents obtained by production under Fed. R. Civ. P. 34) may be introduced in that manner, that testimony may be submitted in the form of an affidavit, that a party may rely on its own discovery responses or that notices of reliance can be filed after the testimony periods have closed. There may also be circumstances where improperly offered or otherwise noncomplying evidence may nevertheless be deemed stipulated into the record where, for example, no objection to the evidence is raised and/or the nonoffering party treats the evidence as being of record. [ Note 3.] See generally TBMP § 704 regarding the introduction of other evidence.
A discussion of the time and manner of taking testimony depositions and introducing evidence is presented in the sections that follow.
NOTES:
2. See Sports Authority Michigan Inc. v. PC Authority Inc., 63 USPQ2d 1782, 1786 n.4 (TTAB 2001) (notices of reliance must be filed before closing date of party's testimony period).
3. 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).