707.02    Objections to Notices of Reliance

707.02(a)    In General

During its testimony period, a party may make certain specified types of evidence of record by filing a notice of reliance thereon, accompanied by the evidence being offered. See generally TBMP § 702 and TBMP § 704. 37 C.F.R. § 2.120(k)(3)(i), provides for the introduction, by notice of reliance, of a discovery deposition, an answer to an interrogatory, an admission to a request for admission, or written initial disclosure; but 37 C.F.R. § 2.120(k)(3)(ii) specifically states that documents obtained through disclosure or by production under Fed. R. Civ. P. 34 may not be made of record by notice of reliance alone, except to the extent that they are admissible by notice of reliance under the provisions of 37 C.F.R. § 2.122(e), or the party has obtained an admission or stipulation from the producing party that authenticates the documents. 37 C.F.R. § 2.122(d)(2), provides for the introduction, by notice of reliance, of a registration owned by a party to a proceeding. 37 C.F.R. § 2.122(e)  provides for the introduction, by notice of reliance, of certain specified types of printed publications and official records. Cf. TBMP § 101.01 and TBMP § 101.02. See also TBMP § 704.03(b), TBMP § 704.07, TBMP § 704.08, TBMP § 704.09, TBMP § 704.10, and TBMP § 704.11 discussing introduction of other types of evidence by notice of reliance.

Some grounds for objection to a notice of reliance are waived unless promptly made (generally errors of any kind which might be obviated or cured if promptly presented) while other grounds that cannot be cured may be raised at any time. The various grounds for objection to a notice of reliance, and the time and procedure for raising them, are discussed in the sections that follow. See also TBMP § 707.04.

707.02(b)    On Procedural Grounds

Ordinarily, a procedural objection to a notice of reliance should be raised promptly, preferably by motion to strike if the defect is one that can be cured. [ Note 1.] However, if the ground for the objection is one that could not be cured even if raised promptly, the adverse party may wait and raise the procedural objection in or with its brief on the case or in an appendix or separate statement of objections attached to the brief. [ Note 2.] If the objection which is one that could have been cured promptly, and was not timely raised, the objection is deemed to be waived. [ Note 3.]

For information concerning motions to strike notices of reliance, see TBMP § 532.

NOTES:

 1.   See, e.g., 37 C.F.R. § 2.122(g)  and MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES, 81 Fed. Reg. 69950, 69964 (October 7, 2016) ("The Office is adding new § 2.122(g) detailing the requirement for admission of evidence by notice of reliance. Section 2.122(g) provides that a notice must indicate generally the relevance of the evidence offered and associate it with one or more issues in the proceeding, but failure to do so with sufficient specificity is a procedural defect that can be cured by the offering party within the time set by Board order. The amendment codifies current case law and Office practice."); Barclays Capital Inc. v. Tiger Lily Ventures Ltd., 124 USPQ2d 1160, 1163 (TTAB 2017) ("Objections to testimony or to a notice of reliance grounded in asserted procedural defects are waived unless raised promptly, when there is an opportunity to cure."); Apollo Med. Extrusion Techs., Inc. v. Med. Extrusion Techs., Inc., 123 USPQ2d 1844, 1846-47 (TTAB 2017) (applicant’s failure to timely object to opposer’s notice of reliance on ground that opposer failed to indicate relevance thereof deemed waived), on appeal, 3:17-CV-02150 (S.D. Cal. October 19, 2017); Beech Aircraft Corp. v. Lightning Aircraft Co., 1 USPQ2d 1290, 1291 (TTAB 1986) (objection waived where respondent received notice of reliance without referenced publications appended thereto but did not raise the issue until briefing); Hunt-Wesson Foods, Inc. v. Riceland Foods, Inc., 201 USPQ 881, 883 (TTAB 1979) (objection that notice of reliance did not set forth relevance of appended documents raised for first time in brief waived).

 2.   Effective January 14, 2017, 37 C.F.R. § 2.128(b)  was amended to clarify and codify current practice that evidentiary objections may be set out in a separate appendix that does not count against the page limit for a brief. Miscellaneous Changes to Trademark Trial and Appeal Board Rules, 81 Fed. Reg. 69950, 69967 (October 7, 2016). See Harjo v. Pro Football Inc., 45 USPQ2d 1789, 1792 (TTAB 1998) (motion to strike trial brief as exceeding page limitation denied where evidentiary objections which were not required to be raised immediately were raised in appendices to the brief rather than in text of brief); Marshall Field & Co. v. Mrs. Fields Cookies, 25 USPQ2d 1321, 1326 (TTAB 1992) (objections to testimony on grounds including relevance and bias of witness, raised a year after depositions were taken and set out in a separate paper from brief, were not untimely and paper did not result in violation of page limitation for final briefs).

 3.   See Apollo Med. Extrusion Techs., Inc. v. Med. Extrusion Techs., Inc., 123 USPQ2d 1844, 1846-47 (TTAB 2017) (applicant’s failure to timely object to opposer’s notice of reliance on ground that opposer failed to indicate relevance thereof deemed waived), on appeal, 3:17-CV-02150 (S.D. Cal. October 19, 2017); City National Bank v. OPGI Management GP Inc./Gestion OPGI Inc., 106 USPQ2d 1668, 1672 (TTAB 2013) (petitioner’s objection to respondent’s submission via notice of reliance of a business brochure prepared by a third party overruled; "[a]ny shortcomings in respondent's original submission … under notice of reliance, such as its failure to identify the URL and when the document was actually accessed (either printed out or downloaded), are procedural deficiencies that were not timely raised by petitioner and thus have been waived); Corporacion Habanos SA v. Guantanamera Cigars Co., 102 USPQ2d 1085, 1093 (TTAB 2012) (objection that relevance of evidence not identified waived where raised for first time with brief because procedural deficiency could have been cured if objection had been raised seasonably); Beech Aircraft Corp. v. Lightning Aircraft Co., 1 USPQ2d 1290, 1291-92 (TTAB 1986) (defect of failing to append copy of printed publication identified in notice of reliance could have been cured); Board of Trustees of the University of Alabama v. BAMA-Werke Curt Baumann, 231 USPQ 408, 409 n.3 (TTAB 1986) (petitioner's objection that respondent's justification for reliance on its own discovery responses was insufficient raised for first time in petitioner's brief was untimely since defect is one which could have been cured if raised promptly); Colt Industries Operating Corp. v. Olivetti Controllo Numerico S.p.A., 221 USPQ 73, 74 n.2 (TTAB 1983) (objection that items submitted by notice of reliance were neither official records nor printed publications raised in brief sustained); Quaker Oats Co. v. Acme Feed Mills, Inc., 192 USPQ 653, 655 n.9 (TTAB 1976) (objection to notice of reliance as to statement of relevance of third-party registrations untimely); Manpower, Inc. v. Manpower Information Inc., 190 USPQ 18, 21 (TTAB 1976) (objection that notice of reliance failed to indicate relevance of materials was curable and should have been raised when notice was filed).

707.02(b)(1)    On Ground of Untimeliness

When a notice of reliance under any of the aforementioned rules is filed after the close of the offering party's testimony period, an adverse party may file a motion to strike the notice of reliance (and, thus, the evidence submitted thereunder), in its entirety, as untimely. [ Note 1.] Alternatively, an adverse party may raise this ground for objection in its brief on the case or in an appendix or separate statement of objections attached to the brief. [ Note 2.]

NOTES:

 1.   See, e.g., Maids to Order of Ohio Inc. v. Maid-to-Order Inc., 78 USPQ2d 1899, 1902 (TTAB 2006) (motion to strike supplemental notice of reliance as having been filed outside testimony period granted); Jean Patou Inc. v. Theon Inc., 18 USPQ2d 1072, 1075 (TTAB 1990) (motion to strike untimely supplemental notice of reliance to admit current status and title copy of registration in place of timely but older status and title copy granted); May Department Stores Co. v. Prince, 200 USPQ 803, 805 n.1 (TTAB 1978) (motion to strike untimely notice of reliance on interrogatory answers and certified copies of corporate records filed with the state granted).

 2.   See, e.g., Questor Corp. v. Dan Robbins & Associates, Inc., 199 USPQ 358, 361 n.3 (TTAB 1978), aff' d, 599 F.2d 1009, 202 USPQ 100 (CCPA 1979); Miss Nude Florida, Inc. v. Drost, 193 USPQ 729, 731 (TTAB 1976) (respondent's objection to untimely notice of reliance raised for the first time in its brief was not waived), pet. to Comm'r denied, 198 USPQ 485 (Comm'r 1977). Cf. Of Counsel Inc. v. Strictly of Counsel Chartered, 21 USPQ2d 1555, 1556 n.2 (TTAB 1991) (where opposer's testimony deposition was taken two days prior to opening of opposer's testimony period, and applicant first raised an untimeliness objection in its brief on the case, objection held waived, since the premature taking of the deposition could have been corrected on seasonable objection).

707.02(b)(2)    On Other Procedural Grounds

An adverse party may object to a notice of reliance, in whole or in part, on the ground that the notice does not comply with the procedural requirements of the particular rule under which it was submitted, as, for example, that a 37 C.F.R. § 2.122(e)  notice of reliance on a printed publication does not include a copy of the printed publication, or does not indicate the general relevance and associate the proffered materials with one or more issues in the case in accordance with 37 C.F.R. § 2.122(g)  [ Note 1.], or the proffered materials are not appropriate for introduction by notice of reliance. [ Note 2.]

When, on a motion to strike a notice of reliance on the ground that it does not meet the procedural requirements of the rule under which it was filed, the Board finds that the notice is defective, but that the defect is curable, the Board may allow the relying party time to cure the defect, failing which the notice will stand stricken. [ Note 3.]

If a motion to strike a notice of reliance raises objections that cannot be resolved simply by reviewing the face of the notice of reliance (and attached documents), the Board will defer determination of the motion until final hearing. [ Note 4.] When determination of a motion to strike a notice of reliance is deferred until final hearing, the parties should argue the matter alternatively in their briefs on the case.

Please Note: Some of the cases cited in this section involve former subsection (j) of 37 C.F.R. § 2.120 which was amended and redesignated as 37 C.F.R. § 2.120(k)  effective January 14, 2017.

NOTES:

 1.   See, e.g., Barclays Capital Inc. v. Tiger Lily Ventures Ltd., 124 USPQ2d 1160, 1163 (TTAB 2017) (granting motion to strike notices of reliance under Trademark Rule 2.122(g), with leave to cure, where relevancy description "so general as to be meaningless," and for insufficiently explaining association of documents with particular facts relevant to particular claims and defenses); FUJIFILM SonoSite, Inc. v. Sonoscape Co., Ltd., 111 USPQ2d 1234, 1237 (TTAB 2014) (notice of reliance failed to sufficiently indicate the relevance of the material being offered by not specifying the relevance of the voluminous web pages submitted under two exhibits); Weyerhaeuser Co. v. Katz, 24 USPQ2d 1230, 1233 (TTAB 1992) (motion to strike granted where notice of reliance was filed under inapplicable provision of rules in that items did not constitute discovery materials admissible under 37 C.F.R. § 2.120(j)(3) and opposer failed to explain relevance of appended copy of notice of opposition from a different case); M-Tek Inc. v. CVP Systems Inc., 17 USPQ2d 1070, 1073 (TTAB 1990) (notice of reliance failed to indicate that documents were being introduced under 37 C.F.R. § 2.120(j)(3)(i) by specifying and making of record a copy of the particular interrogatories to which each document was provided in lieu of an interrogatory answer); Bison Corp. v. Perfecta Chemie B.V., 4 USPQ2d 1718, 1719 n.4 (TTAB 1987) (motion to strike notice of reliance granted where opposer failed to indicate how its own answers clarified, rebutted or explained those relied on by applicant); Holiday Inns, Inc. v. Monolith Enterprises, 212 USPQ 949, 951 (TTAB 1981) (motion to strike notice of reliance granted in part where applicant failed to identify specific answers sought to be introduced by answering party or indicate how they explained, clarified or rebutted answers relied on by inquiring party); Johnson & Johnson v. American Hospital Supply Corp., 187 USPQ 478, 479 (TTAB 1975) (applicant's objection to opposer's notice of reliance on letters between applicant and attorneys for third party well taken because such documents were not printed publications or official records and were not properly identified during deposition so as to lay foundation for introduction into evidence); Rogers Corp. v. Fields Plastics & Chemicals, Inc., 172 USPQ 377, 378-79 (TTAB 1972) (motion to strike notice of reliance on entire remainder of deposition granted); American Optical Corp. v. American Olean Tile Co., 169 USPQ 123, 124 (TTAB 1971) (motion to strike items in applicant's notice of reliance stricken as they were either duplicative of evidence already made of record, not deemed to be printed publications in general circulation, or, in view of the purpose stated by applicant in the notice of reliance, hearsay). Cf. Apollo Medical Extrusion Technologies, Inc. v. Medical Extrusion Technologies, Inc., 123 USPQ2d 1844, 1847 (TTAB 2017) (opposer’s statement of relevance of Internet evidence introduced under notice of reliance acceptable).

 2.   See, e.g., Research In Motion Ltd. v. NBOR Corp., 92 USPQ2d 1926, 1928 (TTAB 2009) (printed publications that include advertisements for party’s goods and services are not disqualified as proper subject matter for notice of reliance because they contain advertisements); Boyds Collection Ltd. v. Herrington & Co., 65 USPQ2d 2017, 2019-20 (TTAB 2003) (whether plaintiff's price sheets and catalogs constitute proper subject matter for a notice of reliance is not a substantive issue and may be determined from the face of the notice of reliance). See also United Global Media Group, Inc. v. Tseng, 112 USPQ2d 1039, 1046-47 (TTAB 2014) (evaluation of various documents submitted under notice of reliance).

 3.   37 C.F.R. § 2.122(g). See MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES, 81 Fed. Reg. 69950, 69952 (October 7, 2016) ("To alleviate any uncertainty, this final rule adds a paragraph to the requirements for a notice of reliance, specifically, to require that the notice indicate generally the relevance of the evidence and associate it with one or more issues in the proceeding. In an effort to curtail motion practice on this point, the rule explicitly states any failure of a notice of reliance to meet this requirement will be considered a curable procedural defect. This codifies the holding of FUJIFILM SonoSite, Inc. v. Sonoscape Co., 111 USPQ2d 1234, 1237 (TTAB 2014)."). See e.g., Barclays Capital Inc. v. Tiger Lily Ventures Ltd., 124 USPQ2d 1160, 1163 (TTAB 2017) (granting motion to strike notices of reliance under Trademark Rule 2.122(g), with leave to cure, where relevancy description "so general as to be meaningless," and for insufficiently explaining association of documents with particular facts relevant to particular claims and defenses; description in other notices of reliance acceptable because "sufficiently narrow or focused"). See also FUJIFILM SonoSite, Inc. v. Sonoscape Co., Ltd., 111 USPQ2d 1234, 1237 (TTAB 2014) (motion to strike exhibits under notice of reliance granted with leave to cure); Weyerhaeuser Co. v. Katz, 24 USPQ2d 1230, 1233 (TTAB 1992) (allowed 20 days to submit substitute notice of reliance remedying defects including submission of proper official record); M-Tek Inc. v. CVP Systems Inc., 17 USPQ2d 1070, 1073 (TTAB 1990) (allowed time to clarify that the documents submitted by notice of reliance were in fact produced in response to interrogatories rather than in response to document requests); Heaton Enterprises of Nevada Inc. v. Lang, 7 USPQ2d 1842, 1844 n.6 (TTAB 1988) (documents remained stricken where party did not correct deficiencies).

 4.   See FUJIFILM SonoSite, Inc. v. Sonoscape Co., Ltd., 111 USPQ2d 1234, 1236 (TTAB 2014) (motion to strike unpleaded registration deferred as admissibility depends on purpose for which it was submitted); Weyerhaeuser Co. v. Katz, 24 USPQ2d 1230, 1233 (TTAB 1992); M-Tek Inc. v. CVP Systems Inc., 17 USPQ2d 1070, 1073 (TTAB 1990) (under the circumstances, whether documents were properly admissible under 37 C.F.R. § 2.120(j)(3)(i) and/or 2.120(j)(3)(ii) deferred).

707.02(c)    On Substantive Grounds

An adverse party may object to a notice of reliance on substantive grounds, such as that evidence offered under the notice constitutes hearsay or improper rebuttal, or is incompetent, irrelevant, or immaterial. Objections of this nature normally should be raised in or with the objecting party's brief on the case or in an appendix or separate statement of objections attached to the brief [ Note 1.], rather than by motion to strike, unless the ground for objection is one that could be cured if raised promptly by motion to strike. [ Note 2.] Cf. TBMP § 707.02(b)(2) and TBMP § 707.03(c). This is because it is the policy of the Board not to read trial testimony or examine other trial evidence prior to final deliberations in the proceeding. See TBMP § 502.01. If a motion to strike a notice of reliance raises objections that cannot be resolved simply by reviewing the face of the notice of reliance (and attached documents), determination of the motion will be deferred by the Board until final hearing. [ Note 3.]

Evidence timely and properly introduced by notice of reliance under the applicable trademark rules generally will not be stricken, but the Board will consider any outstanding objections thereto in its evaluation of the probative value of the evidence at final hearing. [ Note 4.] Cf. TBMP § 707.03(c).

Because the parties to an inter partes Board proceeding generally will not know until final decision whether a substantive objection to a notice of reliance has been sustained, they should argue the matter alternatively in their briefs on the case.

NOTES:

 1.   Effective January 14, 2017, 37 C.F.R. § 2.128(b)  was amended to clarify and codify current practice that evidentiary objections may be set out in a separate appendix that does not count against the page limit for a brief. MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES, 81 Fed. Reg. 69950, 69967 (October 7, 2016). See Alcatraz Media Inc. v. Chesapeake Marine Tours Inc., 107 USPQ2d 1750, 1753-54 (TTAB 2013) (appropriate evidentiary objections may be raised in appendix or separate submission rather than in text of brief.), aff’d, 565 F. App’x 900 (Fed. Cir. 2013) (mem.); Harjo v. Pro Football Inc., 45 USPQ2d 1789, 1792 (TTAB 1998) (motion to strike trial brief as exceeding page limitation denied where evidentiary objections which were not required to be raised immediately were raised in appendices to the brief rather than in text of brief); Marshall Field & Co. v. Mrs. Fields Cookies, 25 USPQ2d 1321, 1326 (TTAB 1992) (objections to testimony on grounds including relevance and bias of witness, raised a year after depositions were taken and set out in a separate paper from brief, were not untimely and paper did not result in violation of page limitation for final briefs).

 2.   See 37 C.F.R. § 2.123(j)  and 37 C.F.R. § 2.128(b); Fed. R. Civ. P. 32(d)(3)(A).

 3.   See FUJIFILM SonoSite, Inc. v. Sonoscape Co., Ltd., 111 USPQ2d 1234, 1236 (TTAB 2014) (motion to strike unpleaded registration deferred as admissibility depends on purpose for which it was submitted); Weyerhaeuser Co. v. Katz, 24 USPQ2d 1230, 1233 (TTAB 1992) (whether notice of reliance sought to introduce improper rebuttal evidence deferred); M-Tek Inc. v. CVP Systems Inc., 17 USPQ2d 1070, 1073 (TTAB 1990) (whether documents submitted by notice of reliance were properly authenticated and whether they constituted hearsay deferred).

 4.   See, e.g., Jean Patou Inc. v. Theon Inc., 18 USPQ2d 1072, 1075 (TTAB 1990) (timely notice of reliance on four-year-old status and title copy of pleaded registration was not stricken); Jetzon Tire & Rubber Corp. v. General Motors Corp., 177 USPQ 467, 468 n.3 (TTAB 1973) (copies of USPTO drawings are official records and therefore not stricken; however, their probative value is limited); American Optical Corp. v. American Olean Tile Co., 169 USPQ 123, 125 (TTAB 1971) ("Certificate of Good Standing" from a U.S. district court is admissible as an official record and therefore not stricken; however its probative value determined at final hearing). See also McDonald’s Corp. v. McSweet, LLC, 112 USPQ2d 1268, 1274 (TTAB 2014) (where parties moved to strike evidence Board noted objections and took them into consideration allocating the appropriate weight to the evidence).