528.01    General Nature of Motion

The motion for summary judgment is a pretrial device to dispose of cases in which "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." [ Note 1.] "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." [ Note 2.] The purpose of the motion is judicial economy, that is, to avoid an unnecessary trial where there is no genuine dispute of material fact and more evidence than is already available in connection with the summary judgment motion could not reasonably be expected to change the result in the case. [ Note 3.]

The summary judgment procedure is regarded as "a salutary method of disposition," and the Board does not hesitate to dispose of cases on summary judgment when appropriate. [ Note 4.]

A party moving for summary judgment has the burden of demonstrating the absence of any genuine dispute of material fact, and that it is entitled to judgment as a matter of law. [ Note 5.] This burden is greater than the evidentiary burden at trial. [ Note 6.] The burden of the moving party may be met by showing "that there is an absence of evidence to support the nonmoving party’s case." [ Note 7.]

If the moving party meets its burden, that is, if the moving party has supported its motion with affidavits or other evidence that, if unopposed, would establish its right to judgment, the nonmoving party may not rest on mere denials or conclusory assertions, but rather must proffer countering evidence, by affidavit or as otherwise provided in Fed. R. Civ. P. 56, showing that there is a genuine factual dispute for trial. [ Note 8.] A factual dispute is genuine if sufficient evidence is presented such that a reasonable fact finder could decide the question in favor of the nonmoving party. [ Note 9.]

In deciding a motion for summary judgment, the function of the Board is not to try issues of fact, but to determine instead if there are any genuine disputes of material fact to be tried. [ Note 10.] The nonmoving party must be given the benefit of all reasonable doubt as to whether genuine disputes of material fact exist; and the evidentiary record on summary judgment, and all inferences to be drawn from the undisputed facts, must be viewed in the light most favorable to the nonmoving party. [ Note 11.]

A fact is material if it "may affect the decision, whereby the finding of that fact is relevant and necessary to the proceedings." [ Note 12.] However, a dispute over a fact that would not alter the Board’s decision on the legal issue will not prevent entry of summary judgment. [ Note 13.] Further, even a genuine dispute over a fact relating only to an issue that is not the subject of the summary judgment motion will not preclude determination of the motion. [ Note 14.]

Where both parties have moved for summary judgment, the mere fact that they have done so does not necessarily mean that there are no genuine disputes of material fact, or authorize the resolution of such disputes, or dictate that judgment should be entered in favor of one of them. [ Note 15.]

A party moving for summary judgment should specify, in its brief in support of the motion, the material facts that are undisputed. The nonmoving party, in turn, should specify, in its brief in opposition to the motion, the material facts that are in dispute. [ Note 16.]

If the Board concludes that there is no genuine dispute of material fact, but that the nonmoving party is the one entitled to judgment as a matter of law, the Board may, after giving notice and a reasonable time to respond, grant summary judgment in favor of the nonmoving party, grant the motion on grounds not raised by a party, or consider summary judgment on its own after identifying for the parties material facts that may not be genuinely in dispute. [ Note 17.]

Briefs in support of a motion for summary judgment and briefs in response or cross-motions for summary judgment on the same issue are limited to 25 pages, and a reply brief shall not exceed 10 pages in length. The brief in support of a cross-motion on a separate issue will not count against the page limit applicable to the response to the original motion only in situations where the original summary judgment motion and cross-motion involve separate issues. Exhibits submitted in support of or in opposition to the motion are not deemed to be part of the brief for purposes of determining the length of the brief. [ Note 18.] A motion for summary judgment should be filed in single (not multiple) form.

The Board’s determination on summary judgment is interlocutory in nature except for a grant of a summary judgment motion entering judgment that is a final disposition of all issues in the proceeding. The time for seeking judicial review of such a decision shall expire sixty-three (63) days from the date on which a final order is entered in the case. Any appeal prior to that time is premature. [ Note 19.] See TBMP § 518 and TBMP § 901.

Where appropriate, partial summary judgment may be entered as to separate classes of goods or services. [ Note 20.] If, in a case involving multiple grounds, the Board enters partial summary judgment on one ground, it may dispose of the case on that basis without considering the other grounds. [ Note 21.]

NOTES:

 1.   Fed. R. Civ. P. 56(a). Please Note: The 2010 amendments to Fed. R. Civ. P. 56 changed the terminology in the summary judgment standard from genuine "issues" to genuine "disputes" to better reflect the focus of a summary judgment determination. See Fed. R. Civ. P. 56, Fed. R. Civ. P. 56(a) Advisory Committee’s notes (2010 amendment). Consequently, cases determined before the amendments went into effect use the earlier terminology, e.g., "genuine issues of material fact" rather than "genuine disputes of material fact."

 2.   Fed. R. Civ. P. 56(c)(1). See generally Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); see also T.A.B. Systems v. PacTel Teletrac, 77 F.3d 1372, 37 USPQ2d 1879, 1881 (Fed. Cir. 1996); Dena Corp. v. Belvedere International Inc., 950 F.2d 1555, 21 USPQ2d 1047, 1049 (Fed. Cir. 1991); and Copelands’ Enterprises Inc. v. CNV Inc., 945 F.2d 1563, 20 USPQ2d 1295, 1297-98 (Fed. Cir. 1991). See also Octocom Systems Inc. v. Houston Computer Services Inc., 918 F.2d 937, 16 USPQ2d 1783, 1783 (Fed. Cir. 1990); Sweats Fashions Inc. v. Pannill Knitting Co., 833 F.2d 1560, 4 USPQ2d 1793, 1795-96 (Fed. Cir. 1987); Pure Gold, Inc. v. Syntex (U.S.A.), Inc., 221 USPQ 151, 154 (TTAB 1983), aff’d, 739 F.2d 624, 222 USPQ 741 (Fed. Cir. 1984); Flatley v. Trump, 11 USPQ2d 1284, 1287 (TTAB 1989); Von Schorlemer v. Baron Herm. Schorlemer Weinkellerei GmbH, 5 USPQ2d 1376, 1378 (TTAB 1986); Giant Food, Inc. v. Standard Terry Mills, Inc., 229 USPQ 955, 961 (TTAB 1986).

 3.   See, e.g., Pure Gold, Inc. v. Syntex (U.S.A.), Inc., 739 F.2d 624, 222 USPQ 741, 743 (Fed. Cir. 1984) (TTAB properly determined that evidence which might be adduced at trial would not change result given the differences in the goods of the parties), aff’g 221 USPQ 151 (TTAB 1983); Larami Corp. v. Talk To Me Programs Inc., 36 USPQ 1840, 1843 (TTAB 1995) (where issue involved collateral estoppel); University Book Store v. University of Wisconsin Board of Regents, 33 USPQ2d 1385, 1390-91 (TTAB 1994) (parties submitted voluminous evidence in support of their cross-motions for summary judgment).

 4.   See, e.g., Sweats Fashions Inc. v. Pannill Knitting Co., 833 F.2d 1560, 4 USPQ2d 1793, 1797 (Fed. Cir. 1987) (conclusory statements and denials do not raise genuine issues of material fact); Levi Strauss & Co. v. Genesco, Inc., 742 F.2d 1401, 222 USPQ 939, 941 (Fed. Cir. 1984) (response contained only unsupported arguments and conclusions); The Clorox Co. v. Chemical Bank, 40 USPQ2d 1098, 1102 (TTAB 1996) (question of legal effect of assigning ITU application is one of law). But see In re Bose Corp., 580 F.3d 1240, 91 USPQ2d 1938 (Fed. Cir. 2009) (reversing Bose Corp. v. Hexawave, Inc., 88 USPQ2d 1332 (TTAB 2007) and remanding in light of finding no willful intent to deceive by party against whom summary judgment granted on ground of fraud); Copelands’ Enterprises Inc. v. CNV Inc., 945 F.2d 1563, 20 USPQ2d 1295, 1298-99 (Fed. Cir. 1991) (factual question of intent regarding misuse of registration symbol is particularly unsuited to disposition on summary judgment); Commodore Electronics Ltd. v. CBM Kabushiki Kaisha, 26 USPQ2d 1503, 1507-08 (TTAB 1993) (question of intent regarding filing of ITU application generally unsuitable for disposal by summary judgment).

 5.   See, e.g., Copelands’ Enterprises Inc. v. CNV Inc., 945 F.2d 1563, 20 USPQ2d 1295, 1298-99 (Fed. Cir. 1991) (moving party’s conclusory statement as to intent insufficient); Kelly Services, Inc. v. Creative Harbor, LLC, 121 USPQ2d 1357, 1363 (TTAB 2017) (moving party has initial burden); Corporate Document Services Inc. v. I.C.E.D. Management Inc., 48 USPQ2d 1477, 1479 (TTAB 1998) (moving party established that no genuine issue of material fact remains for trial).

 6.   See, e.g., Gasser Chair Co. v. Infanti Chair Manufacturing Corp., 60 F.3d 770, 34 USPQ2d 1822, 1824 (Fed. Cir. 1995) (in addition to proving elements of laches by preponderance of the evidence, moving party must also establish no genuine issue of material fact as to those elements).

 7.   Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986) (no requirement that moving party support its motion with affidavits or other similar materials negating the opponent’s claim but may be based on nonmovant’s failure to make sufficient showing as to its own case on which it has burden of proof); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57 (1986) (movant has burden of showing the absence of a genuine issue of fact, but nonmovant is not relieved of its own burden to produce evidence pointing to genuine issue); Enbridge, Inc. v. Excelerate Energy L.P., 92 USPQ2d 1537, 1540 (TTAB 2009) (nonmovant must proffer countering evidence to show existence of genuine factual dispute for trial); Paris Glove of Canada Ltd. v. SBC/Sporto Corp., 84 USPQ2d 1856, 1860 (TTAB 2007) (although listing of allegedly undisputed facts is often submitted and is preferred, no requirement that movant set forth such listing of allegedly undisputed facts in its summary judgment motion). See also Copelands’ Enterprises Inc. v. CNV Inc., 945 F.2d 1563, 20 USPQ2d 1295, 1298 (Fed. Cir. 1991); Kellogg Co. v. Pack’Em Enterprises Inc., 14 USPQ2d 1545 (TTAB 1990), aff’d, 951 F.2d 330, 21 USPQ2d 1142, 1145 (Fed. Cir. 1991); Avia Group International Inc. v. L.A. Gear California Inc., 853 F.2d 1557, 7 USPQ2d 1548, 1550-51 (Fed. Cir. 1988); Sweats Fashions Inc. v. Pannill Knitting Co., 833 F.2d 1560, 4 USPQ2d 1793, 1795-96 (Fed. Cir. 1987).

 8.   Fed. R. Civ. P. 56(c)(1). See also Octocom Systems Inc. v. Houston Computer Services Inc., 918 F.2d 937, 16 USPQ2d 1783, 1786 (Fed. Cir. 1990) (nonmoving party’s response was not supported by contradictory facts, but merely expressed disagreement with facts); Sweats Fashions Inc. v. Pannill Knitting Co., 833 F.2d 1560, 4 USPQ2d 1793, 1797 (Fed. Cir. 1987) ("Mere conclusory statements and denials do not take on dignity by placing them in affidavit form"); Embarcadero Techs., Inc. v. Delphix Corp., 117 USPQ2d 1518, 1523 (TTAB 2016) (non-moving party failed to rebut moving party’s evidence or raise genuine dispute of material fact); Venture Out Properties LLC v. Wynn Resort Holdings LLC, 81 USPQ2d 1887, 1890 (TTAB 2007) ("The nonmoving party may not rest on the mere allegations of its pleadings and assertions of counsel, but must designate specific portions of the record or produce additional evidence showing the existence of a genuine issue of material fact for trial.").

 9.   See Opryland USA Inc. v. The Great American Music Show Inc., 970 F.2d 847, 23 USPQ2d 1471, 1472 (Fed. Cir. 1992) (nonmovant not required to present entire case but just sufficient evidence to show an evidentiary conflict as to the material fact in dispute); Sweats Fashions Inc. v. Pannill Knitting Co., 833 F.2d 1560, 4 USPQ2d 1793, 1795 (Fed. Cir. 1987) (dispute is genuine "only if, on the entirety of the record, a reasonable jury could resolve a factual matter in favor of the nonmovant"); Hornblower & Weeks Inc. v. Hornblower & Weeks Inc., 60 USPQ2d 1733, 1735 (TTAB 2001) (if moving party meets burden of demonstrating absence of genuine issue of material fact, nonmoving party must present evidence that one or more material facts is at issue); Omega SA (Omega AG) (Omega Ltd.) v. Alpha Phi Omega, 118 USPQ2d 1289, 1299 (TTAB 2016) (Where the moving party "has supported its motion by demonstrating the lack of any evidence that it intended to create an association with [nonmovant’s marks], the burden then shifts to [the nonmovant] to demonstrate the existence of a genuine dispute of material fact to be resolved at trial.").

 10.   See Dyneer Corp. v. Automotive Products plc, 37 USPQ2d 1251, 1254 (TTAB 1995); University Book Store v. University of Wisconsin Board of Regents, 33 USPQ2d 1385, 1389 (TTAB 1994).

 11.   See Lloyd’s Food Products Inc. v. Eli’s Inc., 987 F.2d 766, 25 USPQ2d 2027, 2029-30 (Fed. Cir. 1993) (impermissible inferences against nonmovant); Opryland USA Inc. v. The Great American Music Show Inc., 970 F.2d 847, 23 USPQ2d 1471, 1472 (Fed. Cir. 1992) (evidence submitted by nonmovant is to be believed and all justifiable inferences drawn in its favor); Olde Tyme Foods Inc. v. Roundy’s Inc., 961 F.2d 200, 22 USPQ2d 1542, 1546 (Fed. Cir. 1992) (impermissible inferences in favor of movant); Copelands’ Enterprises Inc. v. CNV Inc., 945 F.2d 1563, 20 USPQ2d 1295, 1298 (Fed. Cir. 1991) (reasonable inferences as to intent could have been drawn in nonmovant’s favor); Capital Speakers Inc. v. Capital Speakers Club of Washington D.C. Inc., 41 USPQ2d 1030, 1034 (TTAB 1996) (Board accepted nonmovant’s version of the facts for purposes of deciding motion); Commodore Electronics Ltd. v. CBM Kabushiki Kaisha, 26 USPQ2d 1503, 1505 (TTAB 1993) (on opposer’s motion for summary judgment, applicant’s evidence of statement of use filed in connection with another of its applications covering many of same goods as in opposed application created inference of bona fide intent to use present mark despite absence of any documents regarding its intent to use present mark). Cf. Honda Motor Co., Ltd. v. Friedrich Winkelmann, 90 USPQ2d 1660, 1662 (TTAB 2009) (factual question of intent generally unsuited to disposition on summary judgment, however, unexplained lack of documentary evidence regarding nonmovant’s bona fide intent to use mark in commerce sufficient to prove that nonmovant lacks such intention).

 12.   Opryland USA Inc. v. The Great American Music Show Inc., 970 F.2d 847, 23 USPQ2d 1471, 1472 (Fed. Cir. 1992) (dispute is genuine if evidence could lead reasonable finder of fact to decide question in favor of nonmovant); Institut National Des Appellations d’Origine v. Brown-Forman Corp., 47 USPQ2d 1875, 1879 (TTAB 1998) (fact is material when its resolution would affect the outcome of the case).

 13.   See, e.g., Kellogg Co. v. Pack’Em Enterprises Inc., 951 F.2d 330, 21 USPQ2d 1142 (Fed. Cir. 1991) (single du Pont factor of dissimilarity of marks outweighed all others such that other factors, even if decided in nonmovant’s favor, would not be material because they would not change the result), aff’d,14 USPQ2d 1545 (TTAB 1990); Omega SA (Omega AG) (Omega Ltd.) v. Alpha Phi Omega, 118 USPQ2d 1289, 1292-1294 (TTAB 2016) (same). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Institut National Des Appellations d’Origine v. Brown-Forman Corp., 47 USPQ2d 1875, 1879 (TTAB 1998).

 14.   See United States Olympic Committee v. O-M Bread Inc., 29 USPQ2d 1555, 1557 n.5 (TTAB 1993) (genuine issues of fact as to grounds which were asserted in opposition but were not grounds for summary judgment were irrelevant).

 15.   See Drive Trademark Holdings LP v. Inofin, 83 USPQ2d 1433, 1437 (TTAB 2007); Fishking Processors Inc. v. Fisher King Seafoods Ltd., 83 USPQ2d 1762, 1764 (TTAB 2007); University Book Store v. University of Wisconsin Board of Regents, 33 USPQ2d 1385, 1389 (TTAB 1994).

 16.   Fed. R. Civ. P. 56(c)(1).

 17.   Fed. R. Civ. P. 56(f). Cf. Medinol Ltd. v. Neuro Vasx Inc., 67 USPQ2d 1205, 1209 n.10 (TTAB 2003) (in considering whether to enter summary judgment in favor of petitioner as nonmoving party, Board treated respondent’s statements as it would those of a nonmovant and accepted the statements as true); The Clorox Co. v. Chemical Bank, 40 USPQ2d 1098, 1104 (TTAB 1996) (effect of assigning ITU application if statutory exception is not met is one of law and could be decided in nonmovant’s favor).

 18.   37 C.F.R. § 2.127(a). See Cooper Technologies Co. v. Denier Electric Co., 89 USPQ2d 1478, 1479 (TTAB 2008) (cross-motions for summary judgment denied without prejudice because briefs exceeded page limits; page limits include, if submitted, table of contents, index of cases, description of record, statement of issues, recitation of facts, argument and summary).

 19.   See Copelands’ Enterprises, Inc. v. CNV, Inc., 887 F.2d 1065, 12 USPQ2d 1562, 1564-65 (Fed. Cir. 1989). See also Hewlett-Packard Development Co., L.P. v. Vudu, Inc., 92 USPQ2d 1630, 1632 n.5 (TTAB 2009); Herbaceuticals, Inc. v. Xel Herbaceuticals, Inc., 86 USPQ2d 1572, 1579 n.6 (TTAB 2008).

 20.   Hewlett-Packard Development Co. v. Vudu, Inc., 92 USPQ2d 1630, 1634 (TTAB 2009) (opposer’s motion for summary judgment on its Trademark Act § 2(d) claim granted as to International Class 9 goods but denied as to services in International Classes 35, 38, 41 and 42).

 21.   Compare Multisorb Tech., Inc. v. Pactiv Corp., 109 USPQ2d 1170, 1171-72 (TTAB 2013) (where summary judgment entered on fewer than all pleaded grounds, Board might dispose of case without considering alternate grounds) with SARL Corexco v. Webid Consulting Ltd., 110 USPQ2d 1587, 1591 (TTAB 2014) (when party moved for summary judgment on both pleaded grounds, Board granted summary judgment on one ground and allowed party time to inform Board whether the party wished to proceed with the other ground).