517 Motion to Strike Brief on Motion
Specific provision is made in the Trademark Rules of Practice for the filing of a brief in support of a motion, a brief in opposition to a motion, and a reply brief in further support of the motion. No further papers will be considered regarding the motion. [ Note 1.] See TBMP § 502.02(b).
Subject to the provisions of Fed. R. Civ. P. 11, a party is entitled to offer in its brief any argument it feels will be to its advantage. Accordingly, when a moving brief, an opposition brief, or a reply brief on a motion has been regularly filed, the Board generally will not strike the brief, or any portion thereof, upon motion by an adverse party that simply objects to the contents thereof. Rather, any objections which an adverse party may have to the contents of such a brief will be considered by the Board in its determination of the original motion, and any portions of the brief that are found by the Board to be improper will be disregarded. When filing trial briefs pursuant to 37 CFR § 2.128, a party has the option of making evidentiary objections in a main brief or in a separate statement, as may be done in a responsive brief. The Board will not strike an entire brief based on evidentiary objections. [ Note 2.] See TBMP § 801.
If a brief in opposition to a motion, or a reply brief in support of the motion, is not timely filed, it may be stricken, or given no consideration, by the Board. [ Note 3.] Whether the Board decides to grant a motion as conceded or consider the motion on its merits is a matter of discretion. [ Note 4.] Surreply briefs, even if timely filed, will be given no consideration by the Board. [ Note 5.] Accordingly, it is not necessary (and the Board discourages) the filing of a motion to strike a surreply brief or any other briefs beyond a reply brief filed on a motion, since such papers will not be considered whether or not a motion to strike is filed. Furthermore, the Board may sua sponte strike or give no consideration to any briefs on a motion that exceed the page limit set forth in 37 CFR § 2.127. [ Note 6.]See TBMP § 502.02(b).
NOTES:
1. See 37 CFR § 2.127(a).
2. See Alcatraz Media, Inc. v. Chesapeake Marine Tours, Inc., 107 USPQ2d 1750, 1753-54 (TTAB 2013), aff’d, 565 F. App’x 900 (Fed. Cir. 2014) (mem.) (denying motion to strike trial brief based on appendix being "a subterfuge to avoid page limit"; appendix was devoted solely to evidentiary objections); Corporacion Habanos S.A. v. Guantanamera Cigars, 86 USPQ2d 1473, 1474 (TTAB 2008) (motion to strike reply brief which included a separate statement of evidentiary objections denied as party has option of making evidentiary objections in a separate statement).
3. See, e.g., Consolidated Foods Corp. v. Berkshire Handkerchief Co., Inc., 229 USPQ 619, 620 (TTAB 1986).
4. See, e.g., Consolidated Foods Corp. v. Berkshire Handkerchief Co., Inc., 229 USPQ 619, 620 (TTAB 1986).
5. See 37 CFR § 2.127(a).
6. See, e.g., Saint-Gobain Corp. v. Minnesota Mining and Manufacturing Co., 66 USPQ2d 1220, 1222 (TTAB 2003).