707.03(c)(2)    Testimony By Affidavit or Declaration

Objections may be made to testimony presented by affidavit or declarations for any reason which would require the exclusion of the evidence from consideration. [ Note 1.] As with testimony depositions, objections to the competency of a witness or to the competency, relevancy, or materiality of affidavit or declaration testimony must be raised at the time specified in Rule 32(d)(3)(A) of the Federal Rules of Civil Procedure. [ Note 2.] A party need not elect oral cross-examination in order to lodge a substantive objection to testimony by declaration or affidavit; such an objection may be raised by a motion to strike and maintained in the brief, or raised in the brief for the first time. [ Note 3.] Such objections may not be considered until final hearing. [ Note 4.] Further, the Board ordinarily will not strike declaration or affidavit testimony on the basis of a substantive objection if the testimony was taken in accordance with the applicable rules; rather, the Board usually considers the objection upon evaluation of the probative value of the testimony at final hearing. [ Note 5.] Cf. TBMP § 707.02(c).

NOTES:

 1.   37 C.F.R. § 2.123(j). See MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES, 81 Fed. Reg. 69950, 69965 (October 7, 2016) ("The Office is amending renumbered § 2.123(j) to add that objection may be made to receiving in evidence any declaration or affidavit."). See, e.g., TV Azteca, S.A.B. de C.V. v. Martin, 128 USPQ2d 1786, 1790-91 (TTAB 2018) (newspaper articles and blog post submitted with no supporting testimony or other evidence are hearsay; "residual hearsay" exception of Fed. R. Evid. 807(a) does not apply); WeaponX Performance Products Ltd. v. Weapon X Motorsports, Inc., 126 USPQ2d 1034, 1037 (TTAB 2018) (under circumstances of the case, Board denied opposer’s motion to strike testimony declarations that had been filed and served as exhibits to applicant’s notice of reliance, as doing otherwise would elevate form over substance. "Although the better practice would have been for Applicant to file and serve separately copies of the [witnesses’] testimony declarations, instead of attaching them as exhibits to its notice of reliance, Applicant’s failure to do so is of no consequence."). See generally Moke America LLC v. Moke USA, LLC, 2020 USPQ2d 10400, at *3-9 (TTAB 2020) (discussing curable vs. noncurable objections to testimony and exhibits (including hearsay, lack of personal knowledge and lack of foundation), waiver of objections and timeliness of objections), appeal filed, No. 3:20-cv-00400-MHL (E.D. Va. June 5, 2020).

 2.   37 C.F.R. § 2.123(j). See MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES, 81 Fed. Reg. 69950, 69965 (October 7, 2016) ("The Office is amending renumbered § 2.123(j) to add that objection may be made to receiving in evidence any declaration or affidavit. The Office is further amending renumbered § 2.123(j) to provide that objections may not be considered until final hearing."). See Tao Licensing, LLC v. Bender Consulting Ltd., 125 USPQ2d 1043, 1047 (TTAB 2017) (following well-established Board policy of generally not striking testimony taken in accordance with applicable rules on the basis of substantive objections, and instead considering the objections when evaluating the probative value of the testimony at final hearing, Board overruled objections to declaration testimony based on hearsay, lack of personal knowledge, and irrelevance, and that it is opinion testimony from a nonexpert); Barclays Capital Inc. v. Tiger Lily Ventures Ltd., 124 USPQ2d 1160, 1167 (TTAB 2017) (substantive objection to declaration testimony deferred; such an objection "may be raised by a motion to strike and maintained in the brief, or raised in the brief for the first time.").

 3.   Barclays Capital Inc. v. Tiger Lily Ventures Ltd., 124 USPQ2d 1160, 1167 (TTAB 2017). See, e.g., Double Coin Holdings Ltd. v. Tru Development, 2019 USPQ2d 377409, at.*3 (TTAB 2019) (sustaining objections to declaration testimony based on lack of personal knowledge, insufficient foundation, or impermissible lay opinion testimony; overruling Fed. R. Evid. 1005 objections of both parties); Norris v. PAVE: Promoting Awareness, Victim Empowerment, 2019 USPQ2d 370880, at *2 (TTAB 2019) (considering opposer’s objection to declaration testimony regarding witness’ lack of personal knowledge and disregarding testimony not based thereon); Pierce-Arrow Society v. Spintek Filtration, Inc., 2019 USPQ2d 471774, at *2 (TTAB 2019) (sustaining objection to portion of declaration opinion testimony beyond witness’ area of expertise and where witness opined on the ultimate disposition of the claim; objection to testimony overruled where the specific statements objected to not identified); Andrusiek v. Cosmic Crusaders LLC, 2019 USPQ2d 222984, at *3 n.8 (TTAB 2019) (failure to seek cross-examination of respondent’s declarant does not preclude petitioner from arguing in his brief that the declarations merit little evidentiary weight).

 4.   37 C.F.R. § 2.123(j). See MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES, 81 Fed. Reg. 69950, 69965 (October 7, 2016) ("The Office is amending renumbered § 2.123(j) to add that objection may be made to receiving in evidence any declaration or affidavit. The Office is further amending renumbered § 2.123(j) to provide that objections may not be considered until final hearing."). See Spiritline Cruises LLC v. Tour Management Services, Inc., 2020 USPQ2d 48324, at *4 (TTAB 2020) (Board considers substantive objections in evaluating probative value of testimony at final hearing); Tao Licensing, LLC v. Bender Consulting Ltd., 125 USPQ2d 1043, 1047 (TTAB 2017) (same); Barclays Capital Inc. v. Tiger Lily Ventures Ltd., 124 USPQ2d 1160, 1167 (TTAB 2017) (substantive objection to declaration testimony deferred; such an objection "may be raised by a motion to strike and maintained in the brief, or raised in the brief for the first time.").

 5.   Spiritline Cruises LLC v. Tour Management Services, Inc., 2020 USPQ2d 48324, at *4 (TTAB 2020) (the Board generally does not strike testimony taken in accordance with the applicable rules on the basis of substantive objections but considers its probative value at final hearing); Milwaukee Electric Tool Corp. v. Freud America, Inc., 2019 USPQ2d 460354, at *2-3 (TTAB 2019) (overruling objections based on relevance, unfair prejudice, or misleading nature, noting that Board is capable of weighing the relevance and strength or weakness of testimony and evidence, including any inherent limitations), complaint filed, No. 20-cv-109 (M.D.N.C. Feb. 3, 2020); M/S R.M. Dhariwal (HUF) 100% EOU v. Zarda King Ltd., 2019 USPQ2d 149090, at *3 (TTAB 2019) (whether testimony is supported by other evidence can be considered in determining its weight, but any lack of support does not render it inadmissible; Board is capable of weighing the strength or weakness of objected-to testimony, including any inherent limitations); Tao Licensing, LLC v. Bender Consulting Ltd., 125 USPQ2d 1043, 1047 (TTAB 2017) (objections on grounds of hearsay, lack of personal knowledge, irrelevance, and that it constitutes opinion testimony from a non-expert overruled, but Board will weigh the relevance and strength or weakness of the objected-to testimony, including any inherent limitations).