101.02    Federal Rules

37 C.F.R. § 2.122(a)  Applicable rules. Unless the parties otherwise stipulate, the rules of evidence for proceedings before the Trademark Trial and Appeal Board are the Federal Rules of Evidence, the relevant provisions of the Federal Rules of Civil Procedure, the relevant provisions of Title 28 of the United States Code, and the provisions of this part. When evidence has been made of record by one party in accordance with these rules, it may be referred to by any party for any purpose permitted by the Federal Rules of Evidence.

37 C.F.R. § 2.116  Federal Rules of Civil Procedure.

(a) Except as otherwise provided, and wherever applicable and appropriate, procedure and practice in inter partes proceedings shall be governed by the Federal Rules of Civil Procedure.

Inter partes proceedings before the Board are also governed by the Federal Rules of Civil Procedure, except as otherwise provided in the Trademark Rules of Practice, and "wherever applicable and appropriate," [ Note 1.], and by the Federal Rules of Evidence. [ Note 2.]

There is no provision in the Trademark Rules of Practice concerning the applicability of the Federal Rules of Evidence to ex parte appeals before the Board. However, certain of the principles embodied in the Federal Rules of Evidence are applied by the Board, in practice, in evaluating the probative value of evidence submitted in ex parte cases. [ Note 3.] See TBMP § 1208.

NOTES:

 1.   37 C.F.R. § 2.116(a). See Multisorb Technology Inc. v. Pactiv Corp., 109 USPQ2d 1170, 1171 (TTAB 2013) (Consistent with 37 C.F.R. § 2.116(a), the Board also generally follows settled federal practice when deciding cases raising procedural issues that fall within the interstices between the provisions in the Federal Rules, the C.F.R., and the Trademark Board Manual of Procedure). See also Great Seats Inc. v. Great Seats Ltd., 100 USPQ2d 1323, 1326 (TTAB 2011) (citing 37 C.F.R. § 2.116(a)).

 2.   37 C.F.R. § 2.122(a). See B&B Hardware, Inc. v. Hargis Industries, Inc., 575 U.S. ___, 135 S. Ct. 1293, 113 USPQ2d 2045, 2049 (2015) (proceedings before the TTAB are largely governed by the Federal Rules of Civil Procedure and Evidence); Centroamericana, S.A. v. Cerveceria India, Inc., 892 F.2d 1021, 13 USPQ2d 1307, 1311 (Fed. Cir. 1989) (In applying the burden of proof provisions of Fed. R. Evid. 301, the court stated "[t]he Federal Rules of Evidence generally apply to TTAB proceedings."). See, e.g., Syngenta Crop Protection Inc. v. Bio-Chek LLC, 90 USPQ2d 1112, 1117 (TTAB 2009) (applying Fed. R. Evid. 201); Life Zone Inc. v. Middleman Group Inc., 87 USPQ2d 1953, 1956 (TTAB 2008) (Fed. R. Evid. 801); Bass Pro Trademarks LLC v. Sportsman’s Warehouse Inc., 89 USPQ2d 1844, 1861 (TTAB 2008) (Fed. R. Evid. 701); Kohler Co. v. Baldwin Hardware Corp., 82 USPQ2d 1100, 1104-05 (TTAB 2007) (Fed. R. Evid. 803 and 1004); Genesco Inc. v. Martz, 66 USPQ2d 1260, 1264-65 (TTAB 2003) (Fed. R. Evid. 612); Hard Rock Cafe Licensing Corp. v. Elsea, 48 USPQ2d 1400, 1405 (TTAB 1998) (Fed. R. Evid. 902); HRL Assoc. Inc. v. Weiss Assoc. Inc., 12 USPQ2d 1819, 1822 (TTAB 1989) (Fed. R. Evid. 408); Miles Laboratories Inc. v. Naturally Vitamin Supplements Inc., 1 USPQ2d 1445, 1448, n.20 (TTAB 1986) (Fed. R. Evid. 401).

 3.   See, e.g., In re Omaha National Corp., 819 F.2d 1117, 2 USPQ2d 1859, 1860 (Fed. Cir. 1987) (articles from general and business publications are not hearsay and are probative of descriptive usage); In re Broadway Chicken, Inc., 38 USPQ2d 1559, 1565 (TTAB 1996) (listings from telephone directories and Dun & Bradstreet databases are not inadmissible hearsay); In re American Olean Tile Co., 1 USPQ2d 1823, 1824 n.2 (TTAB 1986) (affidavit consisting of third-hand report by unidentified person is inadmissible hearsay); In re Foundry Products, Inc., 193 USPQ 565, 567 (TTAB 1976) (third-party registrations not considered when copies were not made of record).