704.02    Notice of Reliance – Generally

37 C.F.R. § 2.122(g)  Notices of reliance. The types of evidence admissible by notice of reliance are identified in paragraphs (d)(2) and (e)(1) and (2) of this section and § 2.120(k). A notice of reliance shall be filed during the testimony period of the party that files the notice. For all evidence offered by notice of reliance, the notice must indicate generally the relevance of the evidence and associate it with one or more issues in the proceeding. Failure 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 by the offering party within the time set by Board order.

Certain types of evidence, such as official records and printed publications as described in 37 C.F.R. § 2.122(e), need not be introduced in connection with the testimony of a witness but may instead be made of record by filing the materials with the Board under cover of one or more notices of reliance during the testimony period of the offering party. A notice of reliance is essentially a cover sheet for the materials sought to be introduced. As the title suggests, the notice of reliance serves to notify opposing parties that the offering party intends to rely on the materials submitted thereunder in support of its case. A party needs not disclose the evidence it intends to submit under notice of reliance in its pretrial disclosures. [ Note 1.] Under 37 C.F.R. § 2.122(g), the notice of reliance must include a description and the general relevance of the proffered materials, and it must associate the materials with one or more issues in the case. [ Note 2.] For example, if the claim is likelihood of confusion, the propounding party should associate the materials with a relevant likelihood of confusion factor. Further, if the same document is submitted to support more than one element of a claim or defense, the propounding party should indicate the specific element or fact supported by the document in a group of documents. 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. [ Note 3.] Even if an adverse party fails to lodge a timely objection, the Board may sua sponte decline to consider the proffered evidence if the notice of reliance does not specify the relevance of the materials and identify the issues. [ Note 4.]

A discussion of the types of evidence that may be submitted by notice of reliance and the requirements for introduction of such evidence by notice of reliance can be found in the sections that follow.

NOTES:

 1.   37 C.F.R. § 2.121(e). Accord Wonderbread 5 v. Gilles, 115 USPQ2d 1296, 1300 n.4 (TTAB 2015).

 2.   37 C.F.R. § 2.122(g). Effective January 14, 2017, the Board added new subsection (g) to 37 C.F.R. § 2.122 detailing the requirements for admission of evidence by notice of reliance. This amendment effectively overruled any prior case law stating that an offering party is not required to specify the general relevance of certain types of evidence submitted under notice of reliance such as discovery deposition excerpts and answers to interrogatories. See, e.g., Hunt-Wesson Foods, Inc. v. Riceland Foods, Inc., 201 USPQ 881, 883 (TTAB 1979) (not required to set forth the relevance of interrogatory answers).

See also 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 in FUJIFILM SonoSite, Inc. v. Sonoscape Co., Ltd., 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"); 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), on appeal, 3:17-CV-02150 (S.D. Cal. October 19, 2017).

 3.   37 C.F.R. § 2.122(g). 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 in FUJIFILM SonoSite, Inc. v. Sonoscape Co., Ltd., 111 USPQ2d 1234, 1237 (TTAB 2014)."). See 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"); 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), on appeal, 3:17-CV-02150 (S.D. Cal. October 19, 2017).

 4.   See, e.g., Safer, Inc. v. OMS Investments, Inc., 94 USPQ2d 1031, 1040 (TTAB 2010).