539    Motion to Strike Brief On Case

The Trademark Rules of Practice specifically provide for the filing of briefs on the case, namely, the main brief of the party in the position of plaintiff, the answering brief of the party in the position of defendant, and the reply brief of the party in the position of plaintiff. [ Note 1.] See TBMP § 801.02.

Subject to the provisions of Fed. R. Civ. P. 11, a party is entitled to offer in its brief on the case any argument it believes will be to its advantage. [ Note 2.] Accordingly, when a brief on the case has been regularly filed, the Board generally will not strike the brief, or any portion thereof, upon motion by an adverse party that simply objects to the contents thereof. Rather, any objections that an adverse party may have to the contents of such a brief should be stated in a responsive brief, if allowed, and will be considered by the Board in its determination of the case, and any portions of the brief that are found by the Board to be improper will be disregarded.

However, if a brief on the case is not timely filed, or violates the length limit or other format requirements specified in 37 C.F.R. § 2.128(b), it may be stricken or given no consideration by the Board. [ Note 3.] See TBMP § 537 and TBMP § 801.03. If a brief is stricken because of a format violation, the Board may, in its discretion, allow the offending party time to submit a substitute brief complying with the requirements of 37 C.F.R. § 2.128(b). But see TBMP § 537.

Because the rules do not provide for the filing of a surreply or rejoinder brief by a party in the position of defendant, any such brief will be stricken or given no consideration by the Board. [ Note 4.]

Evidence may not be submitted with a brief, with the exception of a proper request for judicial notice. [ Note 5.] Evidentiary material attached to a brief on the case can be given no consideration unless it was properly made of record during the testimony period of the offering party. If evidentiary material not of record is attached to a brief on the case, an adverse party may object thereto by motion to strike or otherwise. [ Note 6.]

NOTES:

 1.   See 37 C.F.R. § 2.128(a).

 2.   See Rocket Trademarks Pty. Ltd. v. Phard S.p.A., 98 USPQ2d 1066, 1071 (TTAB 2011) (motion to strike portions of plaintiff’s trial brief denied; issues sought to be stricken are possible factors in considering likelihood of confusion and Board is capable of weighing relevance and strength or weakness of arguments presented in briefs).

 3.   37 C.F.R. § 2.128(b). See Ariola-Eurodisc Gesellschaft v. Eurotone International Ltd., 175 USPQ 250, 250 (TTAB 1972) (brief filed three weeks late stricken); American Optical Corp. v. Atwood Oceanics, Inc., 177 USPQ 585, 586 (Comm’r 1973) (brief that was too long and not in proper form was not considered).

 4.   See Levi Strauss & Co. v. R. Josephs Sportswear Inc., 28 USPQ2d 1464, 1465 n.3 (TTAB 1993) (motion to strike portions of opposer’s reply brief on the case given no consideration since motion was essentially attempt by applicant to file a surreply brief), recon. denied, 36 USPQ2d 1328 (TTAB 1994); Fortunoff Silver Sales, Inc. v. Norman Press, Inc., 225 USPQ 863, 863 n.3 (TTAB 1985) (defendant’s rejoinder brief stricken). See also Hydrotechnic Corp. v. Hydrotech International, Inc., 196 USPQ 387, 389 n.2 (TTAB 1977); L. Leichner (London) Ltd. v. Robbins, 189 USPQ 254, 255 n.2 (TTAB 1975); Globe-Union Inc. v. Raven Laboratories Inc., 180 USPQ 469, 471 n.4 (TTAB 1973).

 5.   Life Zone Inc. v. Middleman Group Inc., 87 USPQ2d 1953, 1955 (TTAB 2008).

 6.   See, e.g., Lincoln National Corp. v. Anderson, 110 USPQ2d 1271, 1274 n.5 (TTAB 2014) (evidence submitted for the first time with applicant’s trial brief not considered); Binney & Smith Inc. v. Magic Marker Industries, Inc., 222 USPQ 1003, 1009 n.18 (TTAB 1984) (copy of decision by Canadian Opposition Board attached to brief given no consideration); Plus Products v. Physicians Formula Cosmetics, Inc., 198 USPQ 111, 112 n.3 (TTAB 1978) (applicant’s exhibits attached to its brief cannot be considered). See also Angelica Corp. v. Collins & Aikman Corp., 192 USPQ 387, 391 n.10 (TTAB 1976) ("Evidence submitted by opposer for the first time with its brief has not been considered because it was not regularly made of record during its testimony period in chief or rebuttal testimony period."); L. Leichner (London) Ltd. v. Robbins, 189 USPQ 254, 255 (TTAB 1975) (same); Tektronix, Inc. v. Daktronics, Inc., 187 USPQ 588, 589 n.1 (TTAB 1975), aff’d, 534 F.2d 915, 189 USPQ 693 (CCPA 1976); Ortho Pharmaceutical Corp. v. Hudson Pharmaceutical Corp., 178 USPQ 429, 430 n.3 (TTAB 1973).