533.01 On Ground of Untimeliness
37 C.F.R. § 2.121(a) The Trademark Trial and Appeal Board will issue a trial order setting a deadline for each party’s required pretrial disclosures and assigning to each party its time for taking testimony and presenting evidence ("testimony period"). No testimony shall be taken or evidence presented except during the times assigned, unless by stipulation of the parties approved by the Board, or upon motion granted by the Board, or by order of the Board. …
A party may not take testimony outside of its assigned testimony period, except by stipulation of the parties approved by the Board, or upon motion granted by the Board, or by order of the Board. [ Note 1.] See TBMP § 701.
When there is no such approved stipulation, granted motion, or Board order, and a testimony deposition is taken after the close of the deposing party’s testimony period, an adverse party may file a motion to strike the testimony deposition, in its entirety, as untimely. [ Note 2.] Alternatively, the adverse party may raise this ground for objection in its brief on the case. [ Note 3.] See TBMP § 707.03(b)(1).
NOTES:
1. 37 C.F.R. § 2.121(a). Cf. Sunrider Corp. v. Raats, 83 USPQ2d 1648, 1651 (TTAB 2007) (objection to notice of deposition based on timeliness overruled because the deposition was noticed and taken during the assigned testimony period).
2. See 37 C.F.R. § 2.121(a); Harjo v. Pro-Football Inc., 45 USPQ2d 1789, 1790 (TTAB 1998) (testimonial deposition taken outside testimony period stricken); M-Tek Inc. v. CVP Systems Inc., 17 USPQ2d 1070, 1072-23 (TTAB 1990) (motion to strike testimony for insufficient notice construed as motion to strike testimony taken out of time).
3. Cf. Of Counsel Inc. v. Strictly of Counsel Chartered, 21 USPQ2d 1555, 1556 n.2 (TTAB 1991) (where applicant first raised an untimeliness objection in its brief on the case, objection held waived, since the premature taking of testimony deposition two days prior to opening of testimony period could have been corrected upon seasonable objection).