704.06    Statements in Pleadings or Briefs

704.06(a)    Statements in Pleadings

Statements made in pleadings cannot be considered as evidence on behalf of the party making them; such statements must be established by competent evidence during the time for taking testimony. [ Note 1.]

However, statements in pleadings may have evidentiary value as admissions against interest by the party that made them. [ Note 2.]

NOTES:

 1.   Saul Zaentz Co. v. Bumb, 95 USPQ2d 1723, 1725 n.7 (TTAB 2010) (assertions in answer not evidence unless supported by evidence introduced at trial or except as admission against interest); Kellogg Co. v. Pack’Em Enterprises Inc., 14 USPQ2d 1545, 1547 n.6 (TTAB 1990), aff'd, 951 F.2d 330, 21 USPQ2d 1142 (Fed. Cir. 1991); Times Mirror Magazines, Inc. v. Sutcliff, 205 USPQ 656, 662 (TTAB 1979) (statements in answer referring to sales of applicant's magazines were not considered).

 2.   See Saul Zaentz Co. v. Bumb, 95 USPQ2d 1723, 1725 n.7 (TTAB 2010) (assertions in answer not evidence unless supported by evidence introduced at trial or except as admission against interest); Maremont Corp. v. Air Lift Co., 463 F.2d 1114, 174 USPQ 395, 396 n.4 (CCPA 1972) (pleadings in prior proceeding available as evidence, although not conclusive evidence, against the pleader); Bakers Franchise Corp. v. Royal Crown Cola Co., 404 F.2d 985, 160 USPQ 192, 193 (CCPA 1969) (admission contained in pleading of one action may be evidence against pleader in another action); Kellogg Co. v. Pack’Em Enterprises Inc., 14 USPQ2d 1545, 1548 n.6 (TTAB 1990) (pleadings have evidentiary value only to the extent they contain opponent’s admissions against interest), aff'd, 951 F.2d 330, 21 USPQ2d 1142 (Fed. Cir. 1991); Litton Business Systems, Inc. v. J. G. Furniture Co., 196 USPQ 711, 714 (TTAB 1977) (admissions in answer regarding meaning of mark); Brown Co. v. American Stencil Manufacturing Co., 180 USPQ 344, 345 n.5 (TTAB 1973) (applicant having admitted in its answer that it did not use mark prior to a certain date was estopped from later contending that it has an earlier date of use).

704.06(b)    Statements in Briefs

Factual statements made in a party's brief on the case can be given no consideration unless they are supported by evidence properly introduced at trial. Statements in a brief have no evidentiary value, except to the extent that they may serve as admissions against interest by the party that made them. [ Note 1.]

NOTES:

 1.   See, e.g., Saul Zaentz Co. v. Bumb, 95 USPQ2d 1723, 1725 n.7 (TTAB 2010) (assertions in brief not evidence unless supported by evidence introduced at trial or except as admission against interest); Boston Red Sox Baseball Club LP v. Sherman, 88 USPQ2d 1581, 1587 (TTAB 2008) (broad and general statements in brief regarding marketing experience not supported by any evidence and cannot be accorded evidentiary value or consideration); Jansen Enterprises, Inc. v. Rind, 85 USPQ2d 1104, 1110 (TTAB 2007) (no consideration given to reference in brief to third-party registrations not of record); Schering-Plough HealthCare Products, Inc. v. Ing-Jing Huang, 84 USPQ2d 1323, 1328 (TTAB 2007) (lack of evidence undercuts contentions in brief); DC Comics v. Pan American Grain Manufacturing Co., 77 USPQ2d 1220, 1224 n.5 (TTAB 2005) (by acknowledging in its brief on the case that a label was provided to opposer by applicant, applicant stipulated to its authenticity and to its admission into the record); Baseball America, Inc. v. Powerplay Sports, Ltd., 71 USPQ2d 1847, 1847 (TTAB 2004) (factual assertions in brief not supported by competent evidence not considered); Electronic Data Systems Corp. v. EDSA Micro Corp., 23 USPQ2d 1460, 1462 n.5 (TTAB 1992) (additional revenue figures provided in trial brief not considered); Kellogg Co. v. Pack’Em Enterprises Inc., 14 USPQ2d 1545, 1547 n.6 (TTAB 1990) (reliance in brief on unproven statements made in application), aff'd, 951 F.2d 330, 21 USPQ2d 1142 (Fed. Cir. 1991); BL Cars Ltd. v. Puma Industria de Veiculos S/A, 221 USPQ 1018, 1019 (TTAB 1983); Abbott Laboratories v. Tac Industries, Inc., 217 USPQ 819, 823 (TTAB 1981) (factual statements regarding certain scientific matter which cannot be deemed to be public knowledge not considered); Hecon Corp. v. Magnetic Video Corp., 199 USPQ 502, 507 (TTAB 1978); Plus Products v. Physicians Formula Cosmetics, Inc., 198 USPQ 111, 112 n.3 and 113 (TTAB 1978).

See also In re Teledyne Indus., Inc., 696 F.2d 968, 971, 217 USPQ 9, 11 (Fed. Cir. 1982) (in absence of evidence in the record, mere argument of counsel cannot rebut prima facie case of functionality); In re Simulations Publications, Inc., 521 F.2d 797, 798, 187 USPQ 147, 148 (CCPA 1975) ("Statements in a brief cannot take the place of evidence.").

Cf. Martahus v. Video Duplication Services Inc., 3 F.3d 417, 27 USPQ2d 1846, 1849 (Fed. Cir. 1993) (without copies of relevant documentation including relevant portions of application file, not possible to determine validity of opposer's allegations that applicant took inconsistent position in its application).