703.02(e)    Depositions on Written Questions: Notice of Deposition

37 C.F.R. § 2.124 (b)(1)  A party desiring to take a testimonial deposition upon written questions shall serve notice thereof upon each adverse party within ten days from the opening date of the testimony period of the party who serves the notice. The notice shall state the name and address of the witness. A copy of the notice, but not copies of the questions, shall be filed with the Trademark Trial and Appeal Board.

  • * * * *
  • (b)(3) A party desiring to take cross-examination, by written questions, of a witness who has provided testimony by affidavit or declaration shall serve notice thereof upon each adverse party and shall file a copy of the notice, but not copies of the questions, with the Board.
  • (c) Every notice given under the provisions of paragraph (b) of this section shall be accompanied by the name or descriptive title of the officer before whom the deposition is to be taken.
  • (d)
    • (1) Every notice served on any adverse party under the provisions of paragraphs (b))(1) and (2) of this section for the taking of direct examination shall be accompanied by the written questions to be propounded on behalf of the party who proposes to take the deposition. Every notice served on any adverse party under the provisions of paragraph (b)(3) of this section, for the taking of cross-examination, shall be accompanied by the written questions to be propounded on behalf of the party who proposes to take the cross-examination. Within twenty days from the date of service of the notice of taking direct examination or service of a testimony affidavit or declaration, any adverse party may serve cross questions upon the party who proposes to take the deposition. ...

To take a testimony deposition on written questions, a party must serve notice thereof on each adverse party within 10 days from the opening date of its testimony period, as originally set or as reset. [ Note 1.] The notice must state the name and address of the witness, and it must be accompanied both by the name or descriptive title of the officer before whom the deposition is to be taken and the written questions to be propounded on behalf of the deposing party. [ Note 2.] A copy of the notice, but not of the questions, must be filed with the Board. [ Note 3.]

A party desiring to take cross-examination, by written questions, of an affiant or declarant must serve on each adverse party notice of the cross-examination within 20 days from date of service of the affidavit or declaration. [ Note 4.] The notice must state the name or descriptive title of the officer before whom the deposition will be taken, and must include a copy of the written questions to be propounded at cross-examination. [ Note 5.] The party must file a copy of the notice, but not the questions, with the Board. [ Note 6.]

If the parties so stipulate in writing, a deposition may be taken before any person authorized to administer oaths, at any place, on any notice, and in any manner, and when so taken, may be used like any other deposition. [ Note 7.]

For information concerning the notice of deposition in the case of a discovery deposition on written questions, see TBMP § 404.07(d).

NOTES:

 1.   37 C.F.R. § 2.124(b)(1). See Marshall Field & Co. v. Mrs. Field's Cookies, 17 USPQ2d 1652 (TTAB 1990).

 2.   37 C.F.R. § 2.124(b)(1), 37 C.F.R. § 2.124(c), and 37 C.F.R. § 2.124(d)(1).

 3.   37 C.F.R. § 2.124(b)(1).

 4.   37 C.F.R. § 2.124(b)(3)  and 37 C.F.R. § 2.124(d)(1). See MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES, 81 Fed. Reg. 69950, 69965 (October 7, 2016) ("The Office is amending § 2.124(b)(3) to provide that a party desiring to take cross-examination by written questions of a witness who has provided testimony by affidavit or declaration shall serve notice on each adverse party and file a copy of the notice with the Board."), and MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES: CORRECTION, 81 Fed. Reg. 89382 (December 6, 2016) (further clarification necessary to "clearly incorporate the timing for cross-examination upon written questions of testimony by affidavit or declaration.").

 5.   37 C.F.R. § 2.124(c)  and 37 C.F.R. § 2.124(d)(1).

 6.   37 C.F.R. § 2.124(b)(3). See MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES, 81 Fed. Reg. 69950, 69965 (October 7, 2016) ("The Office is amending § 2.124(b)(3) to provide that a party desiring to take cross-examination by written questions of a witness who has provided testimony by affidavit or declaration shall serve notice on each adverse party and file a copy of the notice with the Board.").

 7.   37 C.F.R. § 2.123(b).