707.03(c)(1)    Oral Testimony Depositions

As noted in TBMP § 707.03(a), some objections to testimony depositions must be raised promptly, or they are waived. The objections, which are waived unless raised promptly, are basically procedural in nature. They include:

  • (1) Objections to errors and irregularities in the notice for taking a deposition (waived unless written objection is promptly served on the party giving the notice, in the case of an objection based on improper or inadequate notice, waived unless the provisions of 37 C.F.R. § 2.123(e)(3)  are followed), see TBMP § 707.03(b)(2);
  • (2) Objections to taking a deposition because of disqualification of the officer before whom the deposition is to be taken (waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence);
  • (3) Objections based on errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties;
  • (4) Objections regarding the signing of testimonial deposition transcripts [ Note 1.]; and
  • (5) Errors of any kind that might be obviated, removed, or cured if promptly presented (waived unless seasonable objection thereto is made at the taking of the deposition). [ Note 2.] Moreover, notice will not be taken of merely formal or technical objections, unless they were timely raised, and appear to have caused substantial injury to the party raising them. [ Note 3.] This applies not only to errors and irregularities in the taking of a deposition, but also in the form of a deposition transcript (such as, improperly numbered pages or questions, improperly marked exhibits, etc.). [ Note 4.]

Other objections to testimony depositions are not waived for failure to make them during or before the taking of the deposition, provided that the ground for objection is not one that might have been obviated or removed if presented at that time. These objections, which are basically substantive in nature [ Note 5.], include objections:

  • (1) to the competency of a witness, or
  • (2) to the competency, relevance, or materiality of testimony, or
  • (3) that the testimony constitutes hearsay or improper rebuttal.

When an objection of this type could not have been obviated or removed if presented at the deposition, the Board will consider it even if the objection is raised for the first time in or with [ Note 6.] a party’s brief on the case. [ Note 7.]

Substantive objections to testimony, that is, objections going to such matters as the competency of a witness, or the competency, relevance, or materiality of testimony, or the asserted hearsay or improper rebuttal nature of the testimony, are not considered by the Board prior to final hearing. [ Note 8.] Cf. TBMP § 707.02(c). This is because testimony is taken out of the presence of the Board, and it is the policy of the Board not to read trial testimony, or examine other trial evidence offered by the parties, prior to deliberations on the final decision. See TBMP § 502.01. Further, testimony regularly taken in accordance with the applicable rules ordinarily will not be stricken on the basis of a substantive objection; rather, any such objection (unless waived) will be considered by the Board in its evaluation of the probative value of the testimony at final hearing. [ Note 9.] Cf. TBMP § 707.02(c).

Similarly, if the propriety of a procedural objection to a testimony deposition (such as an objection to the form of a question) cannot be determined without reading the deposition, or examining other trial evidence, it generally will not be considered by the Board until final hearing. [ Note 10.] Cf. TBMP § 707.02(b)(2).

For the foregoing reasons, the objections described in this section (as opposed to the objection to testimony as late-taken, which may be raised by motion to strike – see TBMP § 533.01 and TBMP § 707.03(b)(1) – and the objection based on improper or inadequate notice of the taking of an oral deposition, which is the subject of the motion to strike procedure described in 37 C.F.R. § 2.123(e)(3), and TBMP § 533.02 and TBMP § 707.03(b)(2)), generally should not be raised by motion to strike. Rather, objections should simply be made in writing at the time specified in the rules cited above, or orally "on the record" at the taking of the deposition, as appropriate. These objections, if properly asserted and not waived or rendered moot, normally will be considered by the Board in its determination of the case at final hearing. [ Note 11.] Cf. TBMP § 707.02(c).

Additionally, in order to preserve an objection that was seasonably raised during the taking of a testimony deposition, a party should maintain the objection in its brief on the case, as an appendix to its brief on the case or in a separate statement of objections filed with its brief on the case. [ Note 12.] See TBMP § 707.04. However, parties are discouraged from filing objections that are not outcome-determinative or that are duplicative of issues previously raised via a motion to strike. [ Note 13.] If a party advances numerous objections during each testimonial deposition and then renews the objections in a general manner in its brief, the Board may find the general objections insufficient to preserve the individual objections originally made during the testimonial depositions. [ Note 14.]

NOTES:

 1.   See Syngenta Crop Protection Inc. v. Bio-Chek LLC, 90 USPQ2d 1112, 1116 (TTAB 2009) (objection that deposition transcripts were not signed waived by failing to timely raise objection – basis for objection could have been cured if objection was raised when the evidence was offered).

 2.   See 37 C.F.R. § 2.123(e)(3)  and 37 C.F.R. § 2.123(i); Fed. R. Civ. P. 32(d)(1), Fed. R. Civ. P. 32(d)(2), Fed. R. Civ. P. 32(d)(3)(A), and Fed. R. Civ. P. 32(d)(3)(B). See also Rocket Trademarks Pty. Ltd. v. Phard S.p.A., 98 USPQ2d 1066, 1070-71 (TTAB 2011) (objection concerning authentication made in brief but not in testimonial deposition procedural in nature and not timely raised; but same exhibits from Internet submitted under notice of reliance authenticated, and even if not submitted under notice of reliance, are admissible as long as witness testifies to general relevance and it is possible to determine the source and date of retrieval); Hornby v. TJX Cos., 87 USPQ2d 1411, 1417 (TTAB 2008) (objection regarding authentication of testimonial deposition exhibits made in brief but not in testimonial deposition itself overruled); Ross v. Analytical Technology Inc., 51 USPQ2d 1269, 1271 n.4 (TTAB 1999) (objection raised for the first time in brief to manner in which testimonial depositions were filed, waived since purported defect could have been cured if promptly raised); Chase Manhattan Bank, N.A. v. Life Care Services Corp., 227 USPQ 389, 391 (TTAB 1985) (foundation objections to a survey submitted by opposer raised for the first time in brief waived); Pass & Seymour, Inc. v. Syrelec, 224 USPQ 845, 847 (TTAB 1984) (objection on grounds of improper identification or authentication of exhibits waived since defects could have been cured if made during the deposition).

Cf. Miss Nude Florida, Inc. v. Drost, 193 USPQ 729, 731 (TTAB 1976), pet. denied, 198 USPQ 485 (Comm’r 1977) (objection to untimeliness of notice of reliance raised for first time in brief was not waived since defect could not have been cured or remedied).

 3.   See 37 C.F.R. § 2.123(i). See also, e.g., Pass & Seymour, Inc. v. Syrelec, 224 USPQ 845, 847 (TTAB 1984) (regarding technical deficiencies in marking exhibits). See also Fed. R. Civ. P. 61 and, with respect to notices of reliance, Beech Aircraft Corp. v. Lightning Aircraft Co., 1 USPQ2d 1290, 1292 n.1 (TTAB 1986) (noting precept of Fed. R. Civ. P. 61, Board stated that plaintiff’s failure to serve notice of reliance was not fatal per se to the notice of reliance).

 4.   See Fed. R. Civ. P. 61; 37 C.F.R. § 2.123(g). See, e.g., Giersch v. Scripps Networks, Inc., 90 USPQ2d 1020, 1022 (TTAB 2009) (Board will consider objection regarding improper authentication of documents in deposition, but ruling depends on facts of the case); Tampa Rico Inc. v. Puros Indios Cigars Inc., 56 USPQ2d 1382, 1384 (TTAB 2000) (improperly marked exhibits considered); Pass & Seymour, Inc. v. Syrelec, 224 USPQ 845, 847 (TTAB 1984) (Board has discretion to consider improperly marked exhibits).

 5.   See 37 C.F.R. § 2.123(j); Fed. R. Civ. P. 32(d)(3)(A); Genesco Inc. v. Martz, 66 USPQ2d 1260 (TTAB 2003) (objection to the failure of opposer to provide applicant with the notes to which the witness was referring during his testimony was considered substantive, not procedural in nature); Wright Line Inc. v. Data Safe Services Corp., 229 USPQ 769, 769 n.4 (TTAB 1985) (objection that testimony is immaterial because it is outside scope of pleading is not waived).

 6.   37 C.F.R. § 2.128(b). Effective January 14, 2017, 37 C.F.R. § 2.128(b)  was amended to clarify and codify current practice that evidentiary objections may be set out in a separate appendix that does not count against the page limit for a brief. MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES, 81 Fed. Reg. 69950, 69967 (October 7, 2016). See Alcatraz Media Inc. v. Chesapeake Marine Tours Inc., 107 USPQ2d 1750, 1753-54 (TTAB 2013) (appropriate evidentiary objections may be raised in appendix or separate submission rather than in text of brief), aff’d, 565 F. App’x 900 (Fed. Cir. 2013) (mem.)See Harjo v. Pro Football Inc., 45 USPQ2d 1789, 1792 (TTAB 1998) (motion to strike trial brief as exceeding page limitation denied where evidentiary objections which were not required to be raised immediately were raised in appendices to the brief rather than in text of brief); Marshall Field & Co. v. Mrs. Fields Cookies, 25 USPQ2d 1321, 1326 (TTAB 1992) (objections to testimony on grounds including relevance and bias of witness, raised a year after depositions were taken and set out in a separate paper from brief, were not untimely and paper did not result in violation of page limitation for final briefs).

 7.   See Ava Ruha Corp. v. Mother’s Nutritional Center, Inc., 113 USPQ2d 1575, 1579 (TTAB 2015) (based on the witness’ status as CFO and personal knowledge of the records, objection based on lack of personal knowledge under Fed. R. Evid. 602 overruled; Board need not exclude evidence for danger of unfair prejudice under Fed. R. Evid. 403); City National Bank v. OPGI Management GP Inc./Gestion OPGI Inc., 106 USPQ2d 1668, 1674-75 (TTAB 2013) (objection sustained to testimony prior to witness’ employment with respondent pursuant to Federal Rule of Evidence 602); Swiss Watch International Inc. v. Federation of the Swiss Watch Industry, 101 USPQ2d 1731, 1735 (TTAB 2012) (objection sustained because deponents statements regarding information they received from third parties during telephone conversations was inadmissible hearsay); Rocket Trademarks Pty. Ltd. v. Phard S.p.A., 98 USPQ2d 1066, 1072 (TTAB 2011) (objection sustained because purported statements made by employees of retail websites to deponent, and handwritten notes taken by deponent of such statements, are hearsay).

Cf. Pass & Seymour, Inc. v. Syrelec, 224 USPQ 845, 847 (TTAB 1984) (objection on ground of hearsay with no foundation for establishing an exception waived since defect could have been cured if objection was raised during the deposition).

 8.   See, e.g., Health-Tex Inc. v. Okabashi (U.S.) Corp., 18 USPQ2d 1409, 1411 (TTAB 1990) (objections based on relevancy and materiality deferred); Liqwacon Corp. v. Browning-Ferris Industries, Inc., 203 USPQ 305, 307 n.1 (TTAB 1979) (objections to relevance and materiality of exhibits offered at a deposition deferred); Primal Feeling Center of New England, Inc. v. Janov, 201 USPQ 44, 47-48 (TTAB 1978) (objection on hearsay grounds or that witness offered opinion testimony without adequate foundation deferred); Globe-Union Inc. v. Raven Laboratories Inc., 180 USPQ 469, 471 n.5 (TTAB 1973) (objection to testimony as lacking foundation deferred).

 9.   See 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"), aff’d, 377 F. Supp. 3d 588 (E.D. Va. 2019), aff’d, 986 F.3d 361, 2021 USPQ2d 81 (4th Cir. 2021); Board of Regents, University of Texas System v. Southern Illinois Miners, LLC, 110 USPQ2d 1182, 1194 n.19 (TTAB 2014) ("the Board generally does not strike testimony taken in accordance with the applicable rules on the basis of substantive objections; rather, the Board considers such objections when evaluating the probative value of the testimony at final hearing."); Krause v. Krause Publications Inc., 76 USPQ2d 1904, 1907 (TTAB 2005) (Board considers substantive objections in evaluating probative value of testimony at final hearing). See also Marshall Field & Co. v. Mrs. Fields Cookies, 25 USPQ2d 1321, 1325 (TTAB 1992); Liqwacon Corp. v. Browning-Ferris Industries, Inc., 203 USPQ 305 (TTAB 1979); Primal Feeling Center of New England, Inc. v. Janov, 201 USPQ 44 (TTAB 1978); Globe-Union Inc. v. Raven Laboratories Inc., 180 USPQ 469 (TTAB 1973).

 10.   See, e.g., Globe-Union Inc. v. Raven Laboratories Inc., 180 USPQ 469, 471 n.5 (TTAB 1973) (objection to testimony as based on leading questions deferred).

 11.   See 37 C.F.R. § 2.123(j).

 12.   See Productos Lacteos Tocumbo S.A. de C.V. v. Paleteria La Michoacana Inc., 98 USPQ2d 1921, 1928 (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); Anthony’s Pizza & Pasta International, Inc. v. Anthony’s Pizza Holding Co., 95 USPQ2d 1271, 1273 n.4 (TTAB 2009) (objection to testimony raised in deposition may be maintained in appendix to brief or by separate statement of objections), aff’d, 415 F. App’x 222 (Fed. Cir. 2010); 7-Eleven, Inc. v. Wechsler, 83 USPQ2d 1715, 1718 n.25 (TTAB 2007) (objection to deposition exhibit waived because not renewed in trial brief); Wet Seal Inc. v. FD Management Inc., 82 USPQ2d 1629, 1632 (TTAB 2007) (objection to testimony waived when not renewed in brief); 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); Duramax Marine LLC v. R.W. Fernstrum & Co., 80 USPQ2d 1780, 1785 (TTAB 2006) (objection that witness was not a trademark expert not maintained in brief and thus waived); First Niagara Insurance Brokers Inc. v. First Niagara Financial Group Inc., 77 USPQ2d 1334, 1340 n.14 (TTAB 2005), (objection made in deposition but not renewed in brief deemed waived), rev’d on other grounds, 476 F.3d 867, 81 USPQ2d 1375 (Fed. Cir. 2007); Hard Rock Café International (USA) Inc. v. Elsea, 56 USPQ2d 1504, 1507 n.5 (TTAB 2000) (objection to exhibit raised during deposition but not maintained in brief deemed waived); Reflange Inc. v. R-Con International, 17 USPQ2d 1125, 1126 n.4 (TTAB 1990) (objections to testimony and exhibits made during depositions deemed waived where neither party raised any objection to specific evidence in its brief); United Rum Merchants Ltd. v. Fregal, Inc., 216 USPQ 217, 218 n.4 (TTAB 1982) (party failed to pursue objection to certain insufficiently identified exhibits introduced at trial in its brief); Donut Shops Management Corp. v. Mace, 209 USPQ 615 (TTAB 1981); Medtronic, Inc. v. Medical Devices, Inc., 204 USPQ 317, 320 n.1 (TTAB 1979) (applicant’s objections to opposer’s main testimony and rebuttal testimony on grounds of hearsay and competency deemed waived where applicant did not repeat the objections in its brief and in fact attempted to use the rebuttal to support its own case); Volkswagenwerk AG v. Clement Wheel Co., 204 USPQ 76, 83 (TTAB 1979) (objections made during depositions but not argued in the briefs were considered to have been dropped); Fischer GmbH. v. Molnar & Co., 203 USPQ 861, 866 (TTAB 1979); Copperweld Corp. v. Astralloy-Vulcan Corp., 196 USPQ 585, 587 n.3 (TTAB 1977).

 13.   Carefirst of Maryland Inc. v. FirstHealth of the Carolinas, Inc., 77 USPQ2d 1492, 1495 (TTAB 2005) ("At the oral hearing, pursuant to the Board’s inquiry, counsel indicated that none of the objected-to evidence is outcome determinative. Several of the parties’ objections merely reiterate what was raised in their motions to strike, and, thus, these evidentiary issues have already been handled above in deciding the various motions. … The parties spent an inordinate amount of effort on evidentiary disputes. The gamesmanship during discovery, which then carried over into certain aspects of the trial phase, is breathtaking, and both sides are guilty of participating in this wasteful behavior."), aff’d, 479 F.3d 825, 81 USPQ2d 1919 (Fed. Cir. 2007). Cf. Spiritline Cruises LLC v. Tour Management Services, Inc., 2020 USPQ2d 48324, at *3 (TTAB 2020) (Board is "well equipped to assess the testimony and the degree of accuracy of any subsequent characterization of it without resorting to striking testimony or questions," denying opposer’s objection and motion to strike a question of counsel, asked during a Rule 30(b)(6) discovery deposition, that had been submitted as trial evidence).

 14.   See Starbucks U.S. Brands LLC v. Ruben, 78 USPQ2d 1741, 1747 (TTAB 2006) (sweeping allegations in brief insufficient to preserve individual objections originally made in testimonial deposition).