1007 Conduct of Proceeding
Once commenced, an interference proceeding is conducted in the same general manner as an opposition or cancellation proceeding, except that there are no pleadings, and therefore no motions relating to pleadings. [ Note 1.] The issues of priority of use, likelihood of confusion, and registrability are always before the Board. A party’s burden of proof as against another party to the proceeding depends upon the filing date of its involved application, and additional parties may be added to the proceeding upon petition to the Director filed by the party to be added. See TBMP § 1002 (Declaration); TBMP § 1003 (Institution); TBMP § 1004 (Issues in Interference); TBMP § 1005 (Burden of Proof); and TBMP § 1006 (Addition of Party).
In addition, the trial and briefing schedule in an interference involving three or more parties differs, because of the multiplicity of parties, from that in an opposition or cancellation. In the notice of interference that commences an interference proceeding, the Board sets trial and briefing dates in the case, including dates for a discovery conference, initial and expert disclosures, an opening and closing date for discovery, and pretrial disclosures and rebuttal disclosures, as may be deemed appropriate by the Board. See TBMP § 1003. In particular, the Board schedules testimony periods so that each party in the position of plaintiff, see TBMP § 1005, will have a period for presenting its case in chief against each party in the position of defendant, each party in the position of defendant will have a period for presenting its case and meeting the case of each plaintiff, and each party in the position of plaintiff will have a period for presenting evidence in rebuttal. The scheduling order will also set the time for pretrial disclosures of witnesses. [ Note 2.] Similarly, the Board schedules briefing periods so that each party, beginning with the junior-most party and ending with the senior-most party, will have a time for filing its main brief on the case, and each junior party will have a time for filing a reply brief. See TBMP § 801.02(e). As in all inter partes proceedings before the Board, the parties may stipulate to pretrial disposition on the merits or abbreviated trial on the merits by means of Accelerated Case Resolution (ACR), and may otherwise stipulate to a variety of matters to expedite the proceeding. [ Note 3.] For information on ACR, see TBMP § 528.05(a)(2) and TBMP § 702.04.
With the exceptions noted above, the practices and procedures for conferencing, making disclosures, taking discovery, filing motions, introducing evidence, briefing the case, presenting oral arguments at final hearing, and seeking review of a decision of the Board, are essentially the same in an interference as in an opposition or cancellation.
NOTES:
1. Compare, e.g., 37 C.F.R. § 2.107 with 37 C.F.R. § 2.115.
2. See, e.g., MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES, 72 Fed. Reg. 42242, 42244-42245 (August 1, 2007).