412.01(c)    Over-designation: Improper designation of confidential filings with the Board

Excerpt from Board’s Standard Protective Order:

12) Redaction; Filing Material with the Board.

When a party or attorney must file protected information with the Board, or a motion or final brief that discusses such information, the protected information or portion of the motion/brief discussing the same should be redacted from the remainder. A rule of reasonableness should dictate how redaction is effected.

Redaction can entail merely covering or omitting a portion of a page of material when it is copied or printed in anticipation of filing but can also entail the more extreme measure of simply filing the entire page under seal as one that contains primarily confidential material. If only a sentence or short paragraph of a page of material is confidential, covering that material when the page is copied, or omitting the material, would be appropriate.

In contrast, if most of the material on the page is confidential, then filing the entire page under seal would be more reasonable, even if some small quantity of non-confidential material is then withheld from the public record. Likewise, when a multi-page document is in issue, reasonableness would dictate that redaction of the portions or pages containing confidential material be effected when only some small number of pages contain such material. In contrast, if almost every page of the document contains some confidential material, it may be more reasonable to simply submit the entire document under seal. Occasions when a whole document or motion/brief must be submitted under seal should be very rare.

37 C.F.R. § 2.27(c)  [Pending trademark application index; access to applications.] Decisions of the Director and the Trademark Trial and Appeal Board in applications and proceedings relating thereto are published or available for inspection or publication.

37 C.F.R. § 2.116(g)  The Trademark Trial and Appeal Board’s standard protective order is automatically imposed in all inter partes proceedings unless the parties, by stipulation approved by the Board, agree to an alternative order, or a motion by a party to use an alternative order is granted by the Board. The standard protective order is available at the Office’s web site. No material disclosed or produced by a party, presented at trial, or filed with the Board, including motions or briefs which discuss such material, shall be treated as confidential or shielded from public view unless designated as protected under the Board’s standard protective order, or under an alternative order stipulated to by the parties and approved by the Board, or under an order submitted by motion of a party granted by the Board. The Board may treat as not confidential that material which cannot reasonably be considered confidential, notwithstanding a designation as such by a party.

Board proceedings are designed to be conducted in public and transparent to the public. [ Note 1.] Records of Board proceedings are open to public view and available for access by the public [ Note 2.], subject only to the exception of limited submissions (exhibits, testimony portions of a brief, or other documents) which contain information which is truly confidential in nature. [ Note 3.] Improper designation of materials filed in Board proceedings as confidential thwarts the intention of allowing the public the right to inspect judicial records and documents [ Note 4.] and is "an improper casual approach" to a party’s good faith requirement to designate only material that is truly confidential as "confidential." [ Note 5.] At final decision, improper designation makes it more difficult to make findings of fact, apply the facts to the law, discuss evidence, and write decisions that make sense when the facts may not be discussed. [ Note 6.] In granting a dispositive motion or at final decision, the Board needs to be able to discuss the evidence of record, unless there is an overriding need for confidentiality, so that the parties and a reviewing court will know the basis of the Board’s decisions. [ Note 7.]

The fact that the Board’s standard protective order is automatically entered upon commencement in the proceeding does not give a party unbridled authority to designate its filed submissions to the Board as protected. [ Note 8.] A party may not improperly mark its filings as confidential so as to shield them from public view nor may the Board’s standard protective order, or any modified protective agreement stipulated to by the parties, be used as a means of circumventing relevant provisions of 37 C.F.R. § 2.27, which provides, that trademark application and registration files, and related TTAB proceeding files, generally should be available for public inspection. [ Note 9.] Improper designation has been found where parties have filed entire briefs or motions or portions thereof as confidential, [note 10] filed entire depositions or portions thereof as confidential [ Note 11.], filed publicly disclosed [ Note 12.] or publicly available [ Note 13.] documents as confidential, or shielded a testifying witnesses’ identity from the adverse party. [ Note 14.]

The Board addresses improper designation of filed submissions in a number of ways. The Board may disregard the designation as "confidential" for those matters which are improperly designated [ Note 15.], it may issue an order to show cause why the submission should not be made open to public view [ Note 16.], it may require the party to reduce redactions by redesignating as non-confidential the overdesignated information and resubmit a properly designated redacted copy for public view [ Note 17.], or the Board may not consider the improperly designated matter in rendering its decision [ Note 18.] In the case of an order to show cause, or request for resubmission of a filing with proper redaction (i.e., proper designation of confidential matter for public access), if no response is received, the Board will redesignate the confidentially filed material as non-confidential and make it available for public view. [ Note 19.]

When filing submissions with the Board, parties should avoid excessive marking of various information as confidential and limit such designations to only those particular discovery responses, exhibits, and deposition transcript pages that are truly confidential, within the scope of and consistent with the protective order entered in the proceeding. [ Note 20.] Any confidential filing must include redacted versions for the public record. See 37 C.F.R. § 2.126. For any confidential unredacted version of a submission for which a redacted version must be filed, the parties are encouraged to enclose the confidential information in brackets so as to facilitate a better comparison between the public and confidential versions of the filing when the Board is issuing an order or preparing a final decision. Occasions when a document or brief or testimony are submitted in their entirety under seal should be rare. [ Note 21.] In decisions, the Board refers to properly designated confidential matter in general terms. [ Note 22.]

For further information regarding the filing of confidential materials and redaction, see TBMP § 120.02, TBMP § 412.01, TBMP § 412.02(d), TBMP § 412.04 and TBMP § 412.05. For further information regarding the designation of material as confidential and procedures regarding redaction at trial, see TBMP § 412.01(a) and TBMP § 703.01(p).

NOTES:

 1.   37 C.F.R. § 2.27(c); Noble House Home Furnishings, LLC v. Floorco Enterprises, LLC, 118 USPQ2d 1413, 1416 n. 21 (TTAB 2016) (it is intended that filings in Board proceedings be publicly available); Couch/Braunsdorf Affinity, Inc. v. 12 Interactive, LLC, 110 USPQ2d 1458, 1461 (TTAB 2014) (contents of Board proceedings publicly available; proceedings are meant to be transparent to the public); Hunter Industries, Inc. v. Toro Co., 110 USPQ2d 1651, 1656 n.12 (TTAB 2014) ("except in unusual circumstances, Board proceedings are open to the public"), on appeal, No. 14-CV-4463 (D. Minn.); Swiss Watch International Inc. v. Federation of the Swiss Watch Industry, 101 USPQ2d 1731, 1736 n.12 (TTAB 2012) ("because proceedings before the Board are public, all papers should be available to the public, except for information that is truly confidential."); General Mills Inc. v. Fage Dairy Processing Industry SA, 100 USPQ2d 1584, 1591 n.4 (TTAB 2011) ("record created [in Board] proceeding is entirely or almost entirely public"), judgment set aside on other grounds, 110 USPQ2d 1679 (TTAB 2014) (non-precedential). See also Nixon v. Warner Communications, Inc., 435 U.S. 589, 598 (1978) (courts recognize "a general right to inspect and copy public records and documents, including judicial records and documents"); Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 492 (1975) ("official records and documents open to the public are the basic data of governmental operations").

 2.   37 C.F.R. § 2.27(c); Couch/Braunsdorf Affinity, Inc. v. 12 Interactive, LLC, 110 USPQ2d 1458 (TTAB 2014) (contents of proceeding files publicly available); Blackhorse v. Pro-Football, Inc., 111 USPQ2d 1080, 1084 n.8 (TTAB 2014) (TTABVUE is the Board’s public online database that contains the electronic case file for the proceeding, available at the USPTO website), aff’d 112 F.Supp. 3d 439, 115 USPQ2d 1524 (E.D. Va. 2015), on appeal, No. 15-1874 (4th Cir.); Turdin v. Trilobite, Ltd., 109 USPQ2d 1473, 1476 n.6 (TTAB 2014) (documents which are designated confidential do not appear in the electronic docket, TTABVUE); General Mills Inc. v. Fage Dairy Processing Industry SA, 100 USPQ2d 1584, 1591 n.4 (TTAB 2011), (TTAB 2014) ("record created [in Board proceeding] is entirely or almost entirely public"), judgment set aside on other grounds, 110 USPQ2d 1679 (TTAB 2014) (non-precedential); Morgan Creek Productions Inc. v. Foria International Inc., 91 USPQ2d 1134, 1136 n.9 (TTAB 2009) (Board proceedings must be open to the public). See also Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 492 (1975). ("The common law presumes a right to inspect and copy judicial records and documents.").

 3.   37 C.F.R. § 2.116(g); Swiss Watch International Inc. v. Federation of the Swiss Watch Industry, 101 USPQ2d 1731, 1736 n.12 (TTAB 2012) ("because proceedings before the Board are public, all papers should be available to the public, except for information that is truly confidential."); General Mills Inc. v. Fage Dairy Processing Industry SA, 100 USPQ2d 1584, 1591 n.4 (TTAB 2011), ("record created [in Board proceeding] is entirely or almost entirely public"), judgment set aside on other grounds, 110 USPQ2d 1679 (TTAB 2014) (non-precedential). See also Baxter International Inc. v. Abbott Laboratories, 63 USPQ2d 1859 (7th Cir. 2002) ("But those documents, usually a small subset of all discovery, that influence or underpin the judicial decision are open to public inspection unless they meet the definition of trade secrets or other categories of bona fide long-term confidentiality."); Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir. 1988) ("there may be instances in which discovery materials should be kept under seal even after they are made part of a dispositive motion" and the court makes this determination at the time it grants the dispositive motion "and not merely allow[s] continued effect to a pretrial discovery protective order").

 4.   Noble House Home Furnishings, LLC v. Floorco Enterprises, LLC, 118 USPQ2d 1413, 1416 n. 21 (TTAB 2016); Couch/Braunsdorf Affinity, Inc. v. 12 Interactive, LLC, 110 USPQ2d 1458, 1461 (TTAB 2014); Edwards Lifesciences Corp. v. VigiLanz Corp., 94 USPQ2d 1399, 1402 (TTAB 2010). See also Nixon v. Warner Communications, Inc., 435 U.S. 589, 598 (1978) (courts recognize "a general right to inspect and copy public records and documents, including judicial records and documents"); In re Violation of Rule 28(d), 98 USPQ2d 1144, 1149 (Fed. Cir. 2011) (confidentiality markings in this case were so extensive that the non-confidential version of the brief ignored the requirements of public access).

 5.   In re Violation of Rule 28(d), 635 F.3d 1352 98 USPQ2d 1144, 1149 (Fed. Cir. 2011) (counsel took an "improper casual approach" to marking the non-confidential version of the brief making it virtually incomprehensible).

 6.   In re Violation of Rule 28(d), 635 F.3d 1352, 98 USPQ2d 1144, 1149 (Fed. Cir. 2011) (confidentiality markings in non-confidential version of brief were so extensive that it hampered the court’s consideration and opinion writing); Noble House Home Furnishings, LLC v. Floorco Enterprises, LLC, 118 USPQ2d 1413, 1416 n.21 (TTAB 2016 ("[i]t is more difficult to make findings of fact, apply the facts to the law, and write decisions that make sense when the facts shown by the evidence may not be discussed." when evidence and testimony improperly designated as confidential); Couch/Braunsdorf Affinity, Inc. v. 12 Interactive, LLC, 110 USPQ2d 1458, 1461 (TTAB 2014) (same); Swiss Watch International Inc. v. Federation of the Swiss Watch Industry, 101 USPQ2d 1731, 1736 n.12 (TTAB 2012) ("In order to adequately explain our analysis and the facts on which it is based we must refer to some of the testimony and exhibits, although we have tried to be sensitive about revealing anything that may be truly confidential."); Edwards Lifesciences Corp. v. VigiLanz Corp., 94 USPQ2d 1399, 1402 (TTAB 2010) (improper confidential designations make it "more difficult to make findings of fact, apply the facts to the law, and write decisions that make sense when the facts may not be discussed."). See also 37 C.F.R. § 2.116(g)  ("The Board may treat as not confidential that material which cannot reasonably be considered confidential, notwithstanding a designation as such by a party.)

 7.   Noble House Home Furnishings, LLC v. Floorco Enterprises, LLC, 118 USPQ2d 1413, 1416 n.21 (TTAB 2016) ("The Board needs to be able to discuss the evidence of record, unless there is an overriding need for confidentiality, so that the parties and a reviewing court will know the basis of the Board’s decision."); Couch/Braunsdorf Affinity, Inc. v. 12 Interactive, LLC, 110 USPQ2d 1458, 1461 (TTAB 2014) (same); Swiss Watch International Inc. v. Federation of the Swiss Watch Industry, 101 USPQ2d 1731, 1736 n.12 (TTAB 2012) ("In order to adequately explain our analysis and the facts on which it is based we must refer to some of the testimony and exhibits, although we have tried to be sensitive about revealing anything that may be truly confidential."); Edwards Lifesciences Corp. v. VigiLanz Corp., 94 USPQ2d 1399, 1402 (TTAB 2010) ("Board needs to be able to discuss the evidence of record, unless there is an overriding need for confidentiality, so that the parties and a reviewing court will know the basis of the Board’s decisions."). Cf. In re Violation of Rule 28(d), 635 F.3d 1352, 98 USPQ2d 1144, 1149 (Fed. Cir. 2011) (confidentiality markings in non-confidential version of brief were so extensive that it hampered the courts consideration and opinion writing).

 8.   See THK America Inc. v. NSK Co. Ltd., 157 F.R.D. 637, 33 USPQ2d 1248, 1255, 1253 (N.D. Ill. 1993) (it is counsel’s "place and responsibility" to ensure that the proper confidential designations are assigned); Azalea Health Innovations, Inc. v. Rural Health Care, Inc., 125 USPQ2d 1236, 1238 (TTAB 2017) ("A rule of reasonableness dictates what information should be [designated confidential and] redacted, and only in very rare instances should an entire submission be deemed confidential."); Hunter Industries, Inc. v. Toro Co., 110 USPQ2d 1651, 1656 n.12 (TTAB 2014) ("the mere assertion that information is confidential does not make such designation proper."), on appeal, Case No. 14-CV-4463 (D. Minn.); General Mills Inc. v. Fage Dairy Processing Industry SA, 100 USPQ2d 1584, 1591 n.4 (TTAB 2011) (in cases where parties have excessively marked information as confidential the Board may require parties to resubmit those documents so that only truly confidential material is redacted, urging parties to limit confidential designations), judgment set aside on other grounds, 110 USPQ2d 1679 (TTAB 2014) (non-precedential); Bass Pro Trademarks LLC v. Sportsman’s Warehouse Inc., 89 USPQ2d 1844, 1848 (TTAB 2008) (urging counsel to exercise discretion and designate as confidential only such information that is truly confidential when appearing before the Board in future proceedings). Cf. Fed. R. Civ. P. 26(g)(1)(B)(ii) (requiring discovery responses to be "not interposed for any improper purpose").

 9.   Sports Authority Michigan Inc. v. PC Authority Inc., 63 USPQ2d 1782, 1787 (TTAB 2001); Duke University v. Haggar Clothing Co., 54 USPQ2d 1443, 1445 (TTAB 2000). Cf. In re Violation of Rule 28(d), 635 F.3d 1352, 98 USPQ2d 1144, 1149 (Fed. Cir. 2011) (improper redaction of non-confidential version of brief ignores the requirements of public access).

 10.   Morgan Creek Productions Inc. v. Foria International Inc., 91 USPQ2d 1134, 1136 n.9 (TTAB 2009) (opposer ordered to file redacted brief in which only information which is truly confidential is redacted); Carefirst of Maryland, Inc. v. FirstHealth of the Carolinas, Inc., 77 USPQ2d 1492, 1495, n.5 (TTAB 2005) (where entirety of the briefs were deemed "confidential," Board subsequently requested and received redacted copies). See also In re Violation of Rule 28(d), 635 F.3d 1352, 98 USPQ2d 1144, 1149 (Fed. Cir. 2011) (improper designations of large portions of appeal brief as confidential including legal argument and case citations and quotations from case; marking of legal argument as confidential under Rule 26(c)(1)(G) cannot be justified unless argument discloses facts or figures of genuine competitive or commercial significance).

 11.   Couch/Braunsdorf Affinity, Inc. v. 12 Interactive, LLC, 110 USPQ2d 1458, 1460-61 (TTAB 2014) (discussing improper designation as confidential of testimony and exhibits submitted in Board proceeding); Swiss Watch International Inc. v. Federation of the Swiss Watch Industry, 101 USPQ2d 1731, 1736 n.12, 1739 (TTAB 2012) (party submitted entire deposition testimony of witness under seal, and was ordered to resubmit copies of evidence in which only truly confidential material was redacted, failing which deposition testimony would be unsealed); Edwards Lifesciences Corp. v. VigiLanz Corp., 94 USPQ2d 1399, 1402-03 (TTAB 2010) (discussing improper designation as confidential testimony and exhibits submitted in Board proceeding including discovery deposition testimony regarding how applicant’s mark was selected, products on which applicant intended to use its mark, and to whom applicant makes its initial sales contacts); Sports Authority Michigan Inc. v. PC Authority Inc., 63 USPQ2d 1782, 1787 (TTAB 2001) (parties were not "precise in the handling and submission of apparently confidential testimony and documents", noting that "transcripts of testimony depositions have been labeled as previous confidential when it is clear from reading the transcripts that only portions thereof were intended to be shielded from public view.").

 12.   THK America Inc. v. NSK Co. Ltd., 157 F.R.D. 637, 33 USPQ2d 1248, 1255-56 (N.D. Ill. 1993) (improper designation as confidential confirmation letters regarding employee seminars, responses to business invitations, requests for permission to attend business trips and internal memos regarding public seminars); Noble House Home Furnishings, LLC v. Floorco Enterprises, LLC, 118 USPQ2d 1413, 1416 n.21, 1418 n. 28, 1419 n.31 (TTAB 2016) (cover page of marketing proposal sent to third party without any indication there was a nondisclosure agreement, not confidential; advertising or marketing proposal sent to third party, not confidential); Couch/Braunsdorf Affinity, Inc. v. 12 Interactive, LLC, 110 USPQ2d 1458, 1460 (TTAB 2014) (improper designation of marketing materials that were distributed to respondent’s purchasers and potential purchasers not confidential; presentation found not confidential where presentation directed to interested employer groups, associations, hospitals, schools and the presentation had no warning or legend that the information in the presentation was trade secret and should be kept confidential); Edwards Lifesciences Corp. v. VigiLanz Corp., 94 USPQ2d 1399, 1402 (TTAB 2010) (where sales figures, advertising expenditures and similar information appeared in publicly available documents or submissions, Board did not treat the information as confidential); Recordings Inc. v. Mattel Inc., 100 USPQ2d 1868, 1874 (TTAB 2011) (improper designations of whole documents and large amount of non-confidential information improperly designated as confidential).

 13.   THK America Inc. v. NSK Co. Ltd., 33 USPQ2d 1248 (N.D. Ill. 1993) (improper designation of published, publicly available documents, among which are catalogs, patents, books, magazines, technical journals and newspaper articles); Noble House Home Furnishings, LLC v. Floorco Enterprises, LLC, 118 USPQ2d 1413, 1416 n.21, 1418 n. 28 (TTAB 2016) (title of witness as "Operations Officer," respondent’s status as limited liability company organized under the Commonwealth of Kentucky, and Respondent’s status as a wholly-owned subsidiary are not confidential; cover page of marketing proposal sent to third party without any indication there was a nondisclosure agreement and the recipient was identified in the publicly available discovery deposition of witness, not confidential); Inter IKEA Sys. B.V. v. Akea, LLC, 110 USPQ2d 1734, 1745 (TTAB 2014) (printout of shopping cart webpage available to the public is not confidential); Edwards Lifesciences Corp. v. VigiLanz Corp., 94 USPQ2d 1399, 1402 (TTAB 2010) (user manuals for opposer’s heart monitors distributed to opposer’s purchasers and which contained no warning or legend advising they contain trade secrets and should be kept in a secure location were not confidential); Georgia Pacific Corp. v. Solo Cup Co., 80 USPQ2d 1950, 1954 (TTAB 2006) (overdesignation of non-confidential matter with respect to portions of expert report as related to expert’s credentials and background, his involvement as an expert or witness in other matters, how he came to be a witness in this proceeding, the role his assistant played, whether other documents beside the report were reviewed or prepared, information about other tests done outside the context of this proceeding, and knowledge of other persons and tests done outside the context of this proceeding).

 14.   Hunter Industries, Inc. v. Toro Co., 110 USPQ2d 1651, 1656 (TTAB 2014) (improper designation of testifying witnesses’ identity as "trade secret/commercially sensitive" under Board’s standard protective order, as modified by the parties’ ACR agreement, opposer’s counsel should have been able to share with opposer the names of witnesses testifying against opposer; applicant had identified these witness’ names in pretrial disclosures), on appeal, No. 14-CV-4463 (D. Minn.).

 15.   37 C.F.R. § 2.116(g); Micro Motion Inc. v. Kane Steel Co., 894 F.2d 1318, 13 USPQ2d 1696, 1702 (Fed. Cir. 1990) (designation of material as confidential not controlling; court retains authority to decide what materials are deemed confidential and what part of trial shall be in camera); Noble House Home Furnishings, LLC v. Floorco Enterprises, LLC, 118 USPQ2d 1413, 1416 n. 21 (TTAB 2016) ("we will treat only evidence and testimony that is truly confidential or commercially sensitive as such"); Couch/Braunsdorf Affinity, Inc. v. 12 Interactive, LLC, 110 USPQ2d 1458, 1461 (TTAB 2014) (Board would not be bound by parties’ confidential designations at final decision, treating only evidence and testimony that is clearly of private nature or commercially sensitive as confidential); Miller v. Miller, 105 USPQ2d 1615, 1617 n.4 (TTAB 2013) (discussing those portions of testimony and evidence "that truly contain confidential information only in general terms."); General Motors Corp. v. Aristide & Co., Antiquaire de Marques, 87 USPQ2d 1179, 1181 (TTAB 2008) ("Depositions have been marked confidential, which limit our reference to them. However, in order to render a decision that relates to the relevant facts of this case, we have referred to selective portions of the record that appear to us to be not truly confidential."); Edwards Lifesciences Corp. v. VigiLanz Corp., 94 USPQ2d 1399, 1402 (TTAB 2010) (Board would not bound by parties’ designation of confidential matter); MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES OF PRACTICE, 81 Fed. Reg. 69950, 69951, 69959 (October 7, 2016) ("This final rule also codifies practice and precedent that the Board may treat as not confidential material that cannot reasonably be considered confidential, notwithstanding party designations."; "The purpose of the rule is to codify existing practice to treat improperly designated material that is public information as public. This is narrowly applied and only done when necessary to articulate the Board decision.").

 16.   Blackhorse v. Pro Football Inc., 98 USPQ2d 1633, 1635 (TTAB 2011) (If party designates more than a minimal amount of evidence as confidential or commercially sensitive and the information is more than 20 years old, party should anticipate an order to show cause why such information should warrant a designation as confidential and be shielded from public view). Cf. Therrien v. Target Corp., 617 F.3d 1242, 1259 (10th Cir. 2010) (sealed portions of the appendices will be unsealed 20 days from the filing of the opinion unless one of the parties files a motion, under seal if necessary, "setting forth precisely what information should be kept confidential and why lesser measures (such as submission of a redacted [appendix]) would not provide effective protection"); Harjo v. Pro-Football, Inc., 50 USPQ2d 1705, 1714 (TTAB 1999) (Board agreed to hold exhibits marked confidential for thirty days pending receipt of a motion for a protective order but cautioned that in the absence of such motion, the exhibits would be placed in the proceeding file).

 17.   Azalea Health Innovations, Inc. v. Rural Health Care, Inc., 125 USPQ2d 1236, 1237–38 (TTAB 2017) (where the parties designated as confidential the entirety of certain notices of reliance and testimony without submitting redacted copies for public viewing the Board ordered them to resubmit copies in which only truly confidential material was redacted, failing which the materials would be treated as part of the public record); Swiss Watch International Inc. v. Federation of the Swiss Watch Industry, 101 USPQ2d 1731, 1736 (TTAB 2012) (party submitted certain deposition testimony under seal, and was ordered to resubmit copies of testimony in which only truly confidential testimony was redacted); General Mills Inc. v. Fage Dairy Processing Industry SA, 100 USPQ2d 1584, 1591 n.4 (TTAB 2011) (in cases where parties have excessively marked information as confidential the Board may require parties to resubmit those documents so that only truly confidential material is redacted), judgment set aside on other grounds, 110 USPQ2d 1679 (TTAB 2014) (non-precedential); Morgan Creek Productions Inc. v. Foria International Inc., 91 USPQ2d 1134, 1136 n.9 (TTAB 2009) (opposer ordered to file redacted brief in which only information which is truly confidential is deleted); Carefirst of Maryland, Inc. v. FirstHealth of the Carolinas, Inc., 77 USPQ2d 1492, 1495, n.5 (TTAB 2005) (where entirety of the briefs were deemed "confidential," Board subsequently requested and received redacted copies).

 18.   Hunter Industries., Inc. v. Toro Co., 110 USPQ2d 1651, 1656 (TTAB 2014) (improperly designated declaration testimony not considered and stricken from record), on appeal, No. 14-CV-4463 (D. Minn.).

 19.   Swiss Watch International Inc. v. Federation of the Swiss Watch Industry, 101 USPQ2d 1731, 1736 n.12 (TTAB 2012).

 20.   In re Violation of Rule 28(d), 635 F.3d 1352 98 USPQ2d 1144, 1149 (Fed. Cir. 2011) (parties must confine their confidentiality markings to information covered by a protective order; confidentiality markings in appellant’s brief went beyond the scope of the protective order). See Blackhorse v. Pro Football Inc., 98 USPQ2d 1633, 1635 (TTAB 2011) ("confidential" designation should be limited to information that is truly confidential or commercially sensitive); General Mills Inc. v. Fage Dairy Processing Industry SA, 100 USPQ2d 1584, 1591 n.4 (TTAB 2011) (urging parties to limit confidential designations), judgment set aside on other grounds, 110 USPQ2d 1679 (TTAB 2014) (non-precedential); Morgan Creek Productions Inc. v. Foria International Inc., 91 USPQ2d 1134, 1136 n.9 (TTAB 2009) (because Board proceeding is open to the public, only truly confidential information should be marked as such); Bass Pro Trademarks LLC v. Sportsman’s Warehouse Inc., 89 USPQ2d 1844, 1848 (TTAB 2008) (urging counsel to exercise discretion and designate as confidential only such information that is truly confidential when appearing before the Board in future proceedings); Sports Authority Michigan Inc. v. PC Authority Inc., 63 USPQ2d 1782, 1787 (TTAB 2001) ("material should be designated as confidential, and as requiring handling as such, only when absolutely necessary.").

 21.   Provisions for Protecting Confidentiality of Information Revealed During Board Proceeding, O.G. Notice (June 20, 2000). Cf. Swiss Watch International Inc. v. Federation of the Swiss Watch Industry, 101 USPQ2d 1731, 1736 n.12 (TTAB 2012) (Board required a testimonial deposition designated entirely as confidential to be resubmitted with portions truly confidential redacted, otherwise, would be redesignated as non-confidential); UMG Recordings Inc. v. Mattel Inc., 100 USPQ2d 1868 (TTAB 2011) (improper designations of whole documents); Carefirst of Maryland, Inc. v. FirstHealth of the Carolinas, Inc., 77 USPQ2d 1492, 1495, n.5 (TTAB 2005) (where entirety of the briefs were deemed "confidential," Board subsequently requested and received redacted copies).

 22.   See e.g., Swiss Watch International Inc. v. Federation of the Swiss Watch Industry, 101 USPQ2d 1731, 1739 (TTAB 2012) (for information in testimony that is truly confidential, Board will refer to it generally); UMG Recordings Inc. v. Mattel Inc., 100 USPQ2d 1868, 1878 (TTAB 2011) (information regarding sales and promotion by parties designated as confidential and the Board referred to this information generally); Rocket Trademarks Pty Ltd. v. Phard S.p.A., 98 USPQ2d 1066, 1078 n.29 (TTAB 2011) (portions of testimony designated confidential referred to only in general terms); Holmes Oil Co. v. Myers Cruizers of Mena Inc., 101 USPQ2d 1148, 1150 n.4 (TTAB 2011) (referring to parties’ consent agreement generally, due to confidential designation); Edwards Lifesciences Corp. v. VigiLanz Corp., 94 USPQ2d 1399, 1402, 1408 (TTAB 2010) (sales and advertising matter designated as confidential and "truly appropriate matter for a confidential designation" so the Board referred to that information in general terms); Safer Inc. v. OMS Invests. Inc., 94 USPQ2d 1031, 1042 (TTAB 2010) (information as to sales figures designated as confidential so Board referred to those figures in general terms); Lacoste Alligator S.A. v. Maxoly Inc., 91 USPQ2d 1594, 1597 (TTAB 2009) (advertising and revenue figures designated confidential, so referred to only generally in Board’s decision); Eveready Battery Co. v. Green Planet Inc., 91 USPQ2d 1511, 1514 (TTAB 2009) (discussing only sales and advertising expenditures set forth in the parties’ briefs but otherwise referring to the evidence designated "confidential" generally); Nextel Communications Inc. v. Motorola Inc., 91 USPQ2d 1393, 1396 n.3 (TTAB 2009) (Board is mindful of the portions of documents and testimony designated as "confidential" and has referred to such matters in general terms).