532    Motion to Strike Notice of Reliance

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. For a discussion of the introduction of evidence, see TBMP § 700. 37 C.F.R. § 2.120(k)  provides for the introduction, by notice of reliance, of a discovery deposition, answer to interrogatory, admission or written disclosure; but specifically states that documents obtained 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). 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. See TBMP § 704.03(b); TBMP § 704.07; and TBMP § 704.11.

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. See TBMP § 707.02(c).

An adverse party may also move to strike a notice of reliance, in whole or in part, on the ground that the notice of reliance does not comply with the procedural requirements of the particular rule under which it was submitted. For example, a party may move to strike a notice of reliance on a printed publication pursuant to 37 C.F.R. § 2.122(e), on the ground that it does not include a copy of the printed publication, or does not indicate the general relevance thereof, see TBMP § 707.02(b)(2), or that the proffered materials are not appropriate for introduction by notice of reliance. [ Note 1.] See TBMP § 707.02(b)(2). If, upon 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 party that filed the notice of reliance time within which to cure the defect, failing which the notice will stand stricken. [ Note 2.]

Objections to a notice of reliance on substantive grounds, such as objections on the grounds that evidence offered under a notice of reliance constitutes hearsay or improper rebuttal, or is incompetent, irrelevant, or immaterial, normally need not and should not be raised by motion to strike. Rather, such objections should be raised in the objecting party’s brief on the case, unless the ground for objection is one that could have been cured if raised promptly by motion to strike. [ Note 3.] See TBMP § 707.02(c).

It is the policy of the Board not to read trial testimony or examine other trial evidence prior to final decision. See TBMP § 502.01. Thus, if a motion to strike cannot be resolved simply by reviewing the face of the notice of reliance and attached documents, but instead would require a review of testimony or other evidence, determination of the motion will be deferred by the Board until final hearing. [ Note 4.]

Evidence timely and properly introduced by notice of reliance under the applicable Trademark Rules of Practice generally will not be stricken, but the Board will consider any objections thereto in its evaluation of the probative value of the evidence at final hearing. [ Note 5.] See TBMP § 707.02(c).

NOTES:

 1.   See, e.g., Azalea Health Innovations, Inc. v. Rural Health Care, Inc., 125 USPQ2d 1236, 1240 (TTAB 2017) (granting motion to strike discovery deposition transcript of nonparties submitted under notice of reliance because discovery depositions may only be offered into evidence by stipulation or by order of the Board granting an appropriate motion seeking approval of use of the discovery depositions); Barclays Capital Inc. v. Tiger Lily Ventures Ltd., 124 USPQ2d 1160, 1164-65 (TTAB 2017) (notice of reliance failed to sufficiently delineate relevance of specific pages within exhibits and press release found to be improper for submission under notice of reliance); 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); Hunter Industries, Inc. v. Toro Co., 110 USPQ2d 1651, 1654 (TTAB 2014) (evidence submitted on flash drive stricken from record, parties may not by agreement override 37 C.F.R. § 2.126 provisions prescribing form of submission), on appeal, No. 14-CV-4463 (D. Minn.); 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); Wet Seal Inc. v. FD Management Inc., 82 USPQ2d 1629, 1632 (TTAB 2007) (improper rebuttal evidence stricken); 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 Carefirst of Maryland Inc. v. FirstHealth of the Carolinas Inc., 77 USPQ 1492, 1497-1500 (Board ruled on multiple motions to strike numerous notices of reliance or portions thereof).

 2.   37 C.F.R. § 2.122(g)  ("[f]ailure to identify the relevance of the evidence, or associate it with issues in the proceeding, with sufficient specificity is a procedural defect that can be cured"). See Barclays Capital Inc. v. Tiger Lily Ventures Ltd., 124 USPQ2d 1160, 1165 (TTAB 2017) (motion to strike exhibits under notice of reliance granted in part with leave to cure); 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); M-Tek Inc. v. CVP Systems Inc., 17 USPQ2d 1070, 1073 (TTAB 1990) (allowed 20 days to correct deficiencies); Heaton Enterprises of Nevada Inc. v. Lang, 7 USPQ2d 1842, 1844 n.6 (TTAB 1988) (where registrant was given leave to amend notice of reliance to correct deficiencies but failed to do so, documents remained stricken).

 3.   See Apollo Medical Extrusion Technologies, Inc. v. Medical Extrusion Technologies, Inc., 123 USPQ2d 1844, 1846-47 (TTAB 2017) (failure to raise an evidentiary objection that could have been cured waived), appeal docketed, 3:17-CV-01250 (S.D. Cal. Oct. 19, 2017); United Global Media Group, Inc. v. Tseng, 112 USPQ2d 1039, 1046-47 (TTAB 2014) (evaluation of various documents submitted under notice of reliance); Wet Seal Inc. v. FD Management Inc., 82 USPQ2d 1629, 1632 (TTAB 2007); but see The Ritz Hotel Limited v. Ritz Closet Seat Corp., 17 USPQ2d 1466, 1468-69 (TTAB 1990). See also Seaward Corp. v. Seaward International, Inc., 223 USPQ 48, 49 n.4 (TTAB 1984); Otis Elevator Co. v. Echlin Manufacturing Co., 187 USPQ 310, 313 n.4 (TTAB 1975).

 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); M-Tek Inc. v. CVP Systems Inc., 17 USPQ2d 1070, 1073 n.2 (TTAB 1990) (questions of admissibility of documents based on hearsay and lack of authentication deferred). See also Carl Karcher Enterprises Inc. v. Carl’s Bar & Delicatessen Inc., 98 USPQ2d 1370, 1371-72 n.2 (TTAB 2011) (it is not the Board’s policy to read trial testimony or other trial evidence prior to final decision).

 5.   See M-Tek Inc. v. CVP Systems Inc., 17 USPQ2d 1070, 1073 n.2 (TTAB 1990).