705 Stipulated Evidence and Accelerated Case Resolution (ACR)
37 C.F.R. § 2.127(e)(2). If any motion for summary judgment is denied, the parties may stipulate that the materials submitted with briefs on the motion be considered at trial as trial evidence, which may be supplemented by additional evidence during trial.
Subject to the approval of the Board, parties may enter into a wide variety of stipulations concerning the admission of specified matter into evidence. The parties may even stipulate to the entire trial record. [ Note 1.] The use of stipulated evidence normally results in savings of time and expense for all concerned. Notwithstanding such a stipulation, a party may reserve the right to object to stipulated evidence on the grounds of competency, relevance, and materiality. [ Note 2.] However, if a party has not reserved the right to object, the party may not later raise objections to that evidence once it has stipulated to the admissibility of that evidence. [ Note 3.]
For example, parties may stipulate that a party may rely on specified responses to requests for discovery, or on other specified documents or exhibits; or what a particular witness would testify to if called; or to the facts in the case of any party; or that a discovery deposition may be used as testimony; or that evidence from another proceeding may be used as evidence in the proceeding in which the stipulation is filed. [ Note 4.] Parties may also stipulate that materials submitted with summary judgment briefs be considered at trial as evidence which may be supplemented as additional evidence during trial. [ Note 5.] See TBMP § 704.07, TBMP § 704.08, TBMP § 704.09, TBMP § 704.10, and TBMP § 704.11 for a discussion of various types of evidence, and TBMP § 703.01(b) regarding the testimony of witnesses.
In certain cases where the parties have entered into certain stipulations, the Board may allow the parties to participate in Accelerated Case Resolution (ACR). See TBMP § 528.05(a)(2) and TBMP § 702.04 . Generally, parties will stipulate to ACR during the pleading or discovery phase of a Board inter partes proceeding to obtain a pretrial final disposition on the merits in lieu of summary judgment or to have an abbreviated trial on the merits. However, parties may stipulate to ACR-type efficiencies at any stage of a proceeding in order to expedite the remainder of the trial schedule. Parties seeking to avail themselves of such efficiencies may stipulate to, for example, abbreviating the length of the testimony period; limiting the subject matter for testimony; agreeing to limit the number of witnesses; or agreeing to streamline the method of introduction of evidence, for example, by stipulating to facts. [ Note 6.] See also TBMP § 528.05(a)(2) and TBMP § 702.04 for further information about ACR.
NOTES:
1. Target Brands Inc. v. Hughes, 85 USPQ2d 1676, 1678 (TTAB 2007) (parties stipulated to the entire record in the case including business records, public records, government documents, marketing materials, materials obtained from the Internet, and 13 paragraphs of facts involving such issues as applicant's dates of first use and the extent and manner in which a designation is used and advertised, the channels of trade for such use, and recognition by third parties of such use; and the dates, nature and extent of descriptive uses of designation by opposer's parent company).
2. See 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), aff’d, 112 F. Supp. 3d 439, 115 USPQ2d 1524 (E.D. Va. 2015), vacated and remanded, Pro Football, Inc. v. Blackhorse, 709 F. App’x 183 (per curiam) (4th Cir. 2018) (mem.); UMG Recordings Inc. v. Mattel, Inc., 100 USPQ2d 1868, 1875 (TTAB 2011) (stipulated evidence subject to objection); Target Brands Inc. v. Hughes, 85 USPQ2d 1676, 1678 (TTAB 2007).
3. See Blackhorse v. Pro-Football Inc., 111 USPQ2d 1080, 1088 (TTAB 2014) (petitioner estopped from objection to certain evidence on any basis except relevance because it falls within the parties’ stipulation), aff’d, 112 F. Supp. 3d 439, 115 USPQ2d 1524 (E.D. Va. 2015), vacated and remanded, Pro Football, Inc. v. Blackhorse, 709 F. App’x 183 (per curiam) (4th Cir. 2018) (mem.); Brooks v. Creative Arts By Calloway LLC, 93 USPQ2d 1823, 1827 (TTAB 2009) (by stipulating affidavit and exhibits thereto into evidence, applicant waived its right to object to the admissibility of exhibits attached to affidavit), aff’d on other grounds, Creative Arts by Calloway, LLC v. Brooks, No. 09-cv-10488 (S.D.N.Y. Dec. 27, 2012), dismissed, slip op. No. 13-147 (2d Cir. March 7, 2013). Cf. UMG Recordings Inc. v. Mattel Inc., 100 USPQ2d 1868, 1875 (TTAB 2011) (counterproductive for applicant to object to the submission of evidence to which it already provided a stipulation for introduction).
4. See 37 C.F.R. § 2.123(b). See, e.g., N.Y. Yankees Partnership v. IET Products & Services, Inc., 114 USPQ2d 1497, 1500 (TTAB 2015) (parties stipulated that witness testimony would be submitted solely by declaration and without cross-examination); Fiserv, Inc. v. Electronic Transaction Systems Corp., 113 USPQ2d 1913, 1916 (TTAB 2015) (parties filed ACR stipulation, agreed to forego discovery, waived disclosures, stipulated to facts and attached documents, filed briefs with additional evidence, and allowed option to opt out); Conolty v. Conolty O’Connor NYC LLC, 111 USPQ2d 1302, 1304 (TTAB 2014) (ACR on cross-motions for summary judgment stipulated to likelihood of confusion limited issue to priority); Inter IKEA Systems B.V. v. Akea, LLC, 110 USPQ2d 1734, 1738 (2014) (parties filed joint stipulation that 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); Frito-Lay North America, Inc. v. Princeton Vanguard, LLC, 109 USPQ2d 1949, 1950 (TTAB 2014) (after suggestion by Board in order denying motion for summary judgment, parties stipulated to forego trial and rely on evidence submitted in support of the motions for summary judgment, supplemented by expert declarations, trial briefs and an oral hearing), vacated and remanded on other grounds, Princeton Vanguard, LLC v. Frito-Lay North America, Inc., 786 F.3d 960, 114 USPQ2d 1827 (Fed. Cir. 2015), original decision aff’d, Frito-Lay North America, Inc. v. Princeton Vanguard, LLC, 124 USPQ2d 1184 (TTAB 2017), on appeal sub nom Snyder’s Lance, Inc. v. Frito-Lay North America, Inc., No. 3:17-CV-00652 (W.D.N.C. November 6, 2017); Miller v. Miller, 105 USPQ2d 1615, 1617 n.6 (TTAB 2013) (parties stipulated to testimony by affidavit and provided a stipulation of undisputed facts); L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1435 n.2 (TTAB 2012) (parties stipulated to testimony by declaration); UMG Recordings Inc. v. Mattel Inc., 100 USPQ2d 1868, 1873 (TTAB 2011) (parties stipulated to submission of testimony via declaration, submission by notice of reliance of evidence from another case, and submission of information and documents provided by either party during discovery); Blackhorse v. Pro-Football Inc., 98 USPQ2d 1633, 1635 (TTAB 2011) (with specified exceptions, parties stipulated that all evidence submitted in a previous case by notice of reliance shall be admissible in instant proceeding by a notice of reliance); 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), rev’d on other grounds, slip op, No. 11-3684 (D.N.J. August 29, 2017); Kistner Concrete Products Inc. v. Contech Arch Technologies Inc., 97 USPQ2d 1912, 1915 (TTAB 2011) (parties stipulated to authenticity of produced documents).
5. 37 C.F.R. § 2.127(e)(2). See MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES, 81 Fed. Reg. 69950, 69967 (October 7, 2016) ("The Office is amending § 2.127(e)(2) to add that if a motion for summary judgment is denied, the parties may stipulate that the materials submitted with briefs on the motion be considered at trial as trial evidence, which may be supplemented by additional evidence during trial. The revision codifies an approach used by parties in proceedings incorporating ACR-type efficiencies at trial.").
6. See Gemological Institute of America, Inc. v. Gemology Headquarters International, LLC, 111 USPQ2d 1559, 1561 (TTAB 2014) (parties’ stipulation provided for the admission into evidence of specific dated expert reports and accompanying exhibits and an expert discovery deposition transcript); 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); Hunter Industries, Inc. v. Toro Co., 110 USPQ2d 1651, 1653 (TTAB 2014) (parties’ stipulation under ACR provided limitations on discovery, excluded the filing of motions for summary judgment and the use of expert testimony, streamlined the methods for introduction of evidence during trial, stipulated to fact regarding no actual confusion), appeal dismissed per stipulation, No. 14-CV-4463 (D. Minn. January 15, 2016); 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); Chanel Inc. v. Makarczyk, 106 USPQ2d 1774, 1775 (TTAB 2013) (parties’ ACR agreement included stipulation of undisputed facts); Edom Laboratories Inc. v. Lichter, 102 USPQ2d 1546, 1547 (TTAB 2012) (parties filed a joint stipulation of undisputed facts); Brooks v. Creative Arts by Calloway, LLC, 93 USPQ2d 1823, 1824 (TTAB 2009) (parties stipulated to 14 paragraphs of facts, submission of testimony of certain witnesses in declaration form, and that sole issue to be decided at final hearing was priority), aff’d on other grounds, Creative Arts by Calloway, LLC v. Brooks, No. 09-cv-10488 (S.D.N.Y. Dec. 27, 2012), dismissed, slip op. No. 13-147 (2d Cir. March 7, 2013); Eveready Battery Co. v. Green Planet, Inc., 91 USPQ2d 1511, 1513 (TTAB 2009) (parties stipulated that evidence submitted in connection with summary judgment motion be deemed of record for trial pursuant to Accelerated Case Resolution (ACR)); Target Brands, Inc. v. Hughes, 85 USPQ2d 1676 (TTAB 2007) (parties stipulated to 13 paragraphs of facts); Micro Motion Inc. v. Danfoss A/S, 49 USPQ2d 1628, 1629 n.2 (TTAB 1998) (parties stipulated that evidence submitted in connection with summary judgment motion be deemed of record for trial). Cf. UMG Recordings Inc. v. Mattel Inc., 100 USPQ2d 1868, 1873 (TTAB 2011) (efficiencies realized by stipulations defeated by submission of excessive records).