707.01 In General
37 C.F.R. § 2.122(a) Applicable Rules. Unless the parties otherwise stipulate, the rules of evidence for proceedings before the Trademark Trial and Appeal Board are the Federal Rules of Evidence, the relevant provisions of the Federal Rules of Civil Procedure, the relevant provisions of Title 28 of the United States Code, and the provisions of this part. 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 introduction of evidence in inter partes proceedings before the Board is governed by the Federal Rules of Evidence, the relevant portions of the Federal Rules of Civil Procedure, the relevant provisions of Title 28 of the United States Code, and the rules of practice in trademark cases (i.e., the provisions of Part 2 of Title 37 of the Code of Federal Regulations). [ Note 1.] A party to a Board inter partes proceeding that believes that proffered evidence should, under these rules, be excluded from consideration, may raise an objection. The procedure for raising an objection to proffered evidence depends on the nature of the evidence and the ground for objection.
As a general proposition, where ordinarily inadmissible hearsay evidence is admitted into evidence without objection, it may be considered for whatever probative value the finder of fact chooses to give it. [ Note 2.] When parties specifically agree to waive hearsay objections, the Board may rely on the evidence for the truth of the matter asserted. [ Note 3.]
The Board is entitled to weigh the evidence [ Note 4.], and has the discretion on how it considers evidentiary objections, especially in cases where numerous objections have been lodged or the objections are not outcome determinative. [ Note 5.]
An objection that is first raised in a reply brief is untimely. [ Note 6.]
See TBMP § 801.02(c) for information about reply briefs.
NOTES:
2. See, e.g., Daniel J. Quirk Inc. v. Village Car Company, 120 USPQ2d 1146 (TTAB 2016); Sunnen Products Co. v. Sunex International Inc., 1 USPQ2d 1744, 1746 n.9 (TTAB 1987); Flowers Industries Inc. v. Interstate Brands Corp., 5 USPQ2d 1580, 1582 n.4 (TTAB 1987).
3. Daniel J. Quirk Inc. v. Village Car Company, 120 USPQ2d 1146 (TTAB 2016); Blackhorse v. Pro-Football, Inc., 111 USPQ2d 1080, 1086 (TTAB 2014), aff’d, 112 F. Supp. 3d 439, 115 USPQ2d 1524 (E.D. Va. 2015), vacated and remanded, Pro Football, Inc. v. Blackhorse, 709 F. App’x 183 (per curiam) (4th Cir. 2018) (mem.).
4. See Real Foods Pty Ltd. v. Frito-Lay North America, Inc., 906 F.3d 965, 128 USPQ2d 1370, 1378 (Fed. Cir. 2018) ("The TTAB is entitled to weigh the evidence …") (citing Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 856, 214 USPQ 1, 7 (1982) ("Determining the weight and credibility of the evidence is the special province of the trier of fact.")).
5. See Grote Industries, Inc. v. Truck-Lite Co., LLC, 126 USPQ2d 1197, 1200 (TTAB 2018) ("[O]ur proceedings are tried before judges not likely to be easily confused or prejudiced. Objections to trial testimony on bases more relevant to jury trials are particularly unnecessary in this forum."); RxD Media, LLC v. IP Application Development LLC, 125 USPQ2d 1801, 1804 (TTAB 2018) ("the Board is capable of weighing the relevance and strength or weakness of the objected to testimony and evidence, including any inherent limitations"); Kohler Co. v. Honda Giken Kogyo K.K., 125 USPQ2d 1468, 1478 (TTAB 2017) (where parties devoted more than 30 pages of their briefing at final hearing to numerous detailed evidentiary objections, Board exercised discretion to rule explicitly only on major objections); Poly-America, L.P. v. Illinois Tool Works Inc., 124 USPQ2d 1508, 1510 (TTAB 2017) ("we choose not to make specific rulings on each and every objection"); Luxco, Inc. v. Consejo Regulador del Tequila, A.C., 121 USPQ2d 1477, 1479 (TTAB 2017), appeal dismissed per stipulation, No. 17-00345 (E.D. Va. August 24, 2017); Inter IKEA Sys. B.V. v. Akea, LLC, 110 USPQ2d 1734, 1737 (TTAB 2014); Alcatraz Media Inc. v. Chesapeake Marine Tours Inc., 107 USPQ2d 1750, 1755 (TTAB 2013), aff'd , 565 F. App'x 900 (Fed. Cir. 2014) (mem.); Kohler Co. v. Baldwin Hardware Corp., 82 USPQ2d 1100, 1104 (TTAB 2007); U.S. Playing Card Co. v. Harbro LLC, 81 USPQ2d 1537, 1540 (TTAB 2006) ("[B]ecause an opposition is akin to a bench trial, the Board is capable of assessing the proper evidentiary weight to be accorded the testimony and evidence, taking into account the imperfections surrounding the admissibility of such testimony and evidence.").
6. See Grote Industries, Inc. v. Truck-Lite Co., LLC, 126 USPQ2d 1197, 1199 (TTAB 2018) ("Objections raised for the first time in a reply brief are untimely because they effectively foreclose the adverse party from responding to the objections."). Cf. Productos Lacteos Tocumbo S.A. de C.V. v. Paleteria La Michoacana Inc., 98 USPQ2d 1921, 1927 (TTAB 2011) (objection on the basis that the witness had not been previously disclosed waived where not renewed in main brief and raised for first time in rebuttal brief), aff’d, 188 F.Supp. 3d 222 (D.D.C. 2016), aff’d, 743 F. App’x 457, 128 USPQ2d 1172 (D.C. Cir. 2018); Kohler Co. v. Baldwin Hardware Corp., 82 USPQ2d 1100, 1104 (TTAB 2007) (objection raised at trial waived when petitioner waited until its reply brief to renew objections).