801.02(d) Reply Brief for Defendant Not Permitted
There is no provision for filing a reply brief, rebuttal brief, rejoinder brief, etc. by a party in the position of defendant. [ Note 1.] If a party in the position of defendant files such a brief, it may be stricken, or given no consideration, by the Board. [ Note 2.] The party in the position of defendant may counter any arguments raised in plaintiff’s reply brief during oral argument. [ Note 3.]
However, if a defendant has counterclaimed to cancel a registration owned by the plaintiff, the defendant, as plaintiff in the counterclaim, may file a reply brief directed to the counterclaim. TBMP § 801.02(e).
NOTES:
1. Zheng Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1799 (Fed. Cir. 2018) ("the plain language of the TBMP states that the TTAB is not required to permit ‘a party in the position of defendant’ to file a reply brief.").
2. Zheng Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1799 (Fed. Cir. 2018) (Federal Circuit found that the Board did not abuse its discretion in applying the plain language of the TBMP and excluding defendant’s reply brief).
3. United Foods Inc. v. United Airlines Inc., 33 USPQ2d 1542, 1542 (TTAB 1994) (respondent may counter any arguments raised in petitioner’s reply brief during oral argument).