703.01(a)    In General

In addition to submission of evidence under notices of reliance, parties may introduce evidence in the form of testimony depositions taken by a party during its assigned testimony period, or in the form of affidavit or declaration testimony submitted during its testimony period, subject to the right of the adverse party to conduct cross-examination. The submission of evidence and testimony during the parties’ assigned testimony periods corresponds to the trial in court proceedings. [ Note 1.] For information concerning submission of evidence by notice of reliance, see TBMP § 704

Testimony is taken out of the presence of the Board, by affidavit or declaration, or on oral examination or written questions, and the affidavits, declarations and written deposition transcripts, together with any exhibits thereto, are then submitted to the Board. See TBMP § 702. See also TBMP § 502.01 . During a party's testimony period, testimony is taken by or on behalf of the party, of the party himself or herself (if the party is an individual), or of an official or employee of the party, or of some other witness testifying (either willingly or under subpoena) on behalf of the party.

Testimony affidavits, declarations and depositions are the means by which a party may introduce into the record not only the testimony of its witnesses, but also those documents and other exhibits that may not be made of record by notice of reliance. See generally TBMP § 704 describing types of evidence admissible by notice of reliance. However, only evidence admissible under the applicable rules of evidence may properly be adduced during a testimony deposition or presented by affidavit or declaration; inadmissibility is a valid ground for objection. [ Note 2.] See TBMP § 707.03. In addition, once evidence has properly been made of record, any party may refer to it for any purpose permitted by the Federal Rules of Evidence. [ Note 3.]

For a comparison of testimony depositions and discovery depositions, see TBMP § 404.09.

NOTES:

 1.   37 C.F.R. § 2.116(e). See MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES, 81 Fed. Reg. 69950, 69959 (October 7, 2016) ("The Office is amending § 2.116(e) to add that the submission of notices of reliance, declarations, and affidavits, as well as the taking of depositions, during the testimony period corresponds to the trial in court proceedings. The revision codifies current Office practice and is consistent with amendments relating to declarations and affidavits."). For a general discussion of Board inter partes proceedings, see B&B Hardware, Inc. v. Hargis Industries, Inc., 575 U.S. ___, 135 S. Ct. 1293, 113 USPQ2d 2045, 2049 (2015).

 2.   See 37 C.F.R. § 2.122(a)  and 37 C.F.R. § 2.123(l).

 3.   37 C.F.R. § 2.122(a). See MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES, 81 Fed. Reg. 69950, 69963 (October 7, 2016) ("The Office is further amending § 2.122(a) consistent with § 2.120(k)(7), to add that 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. The amendments codify current Office practice."). See, e.g., Nazon v. Ghiorse, 119 USPQ2d 1178, 1181 n.6 (TTAB 2016) ("Once evidence is properly of record, it may be relied on by any party for any purpose.").