707.04    Waiver of Objection

A party may waive an objection to evidence by failing to raise the objection at the appropriate time. [ Note 1.] See TBMP § 707.02 and TBMP § 707.03.

For example, an objection to a notice of reliance on the ground that the notice does not comply with the procedural requirements of the particular rule under which it was submitted generally should be raised promptly. If a party fails to raise an objection of this nature promptly, the objection may be deemed waived, unless the ground for objection is one that could not have been cured even if raised promptly. See TBMP § 707.02(b)(1) and TBMP § 707.02(b)(2).

Similarly, an objection to a testimony deposition on the ground that it does not comply with the applicable procedural rules generally is waived if not raised promptly, unless the ground for objection is one which could not have been cured even if raised promptly. See TBMP § 707.03(b)(1) and TBMP § 707.03(c).

On the other hand, objections to a notice of reliance, or to testimony, on substantive grounds, such as, that the proffered evidence constitutes hearsay or improper rebuttal, or is incompetent, irrelevant, or immaterial, generally are not waived for failure to raise them promptly, unless the ground for objection is one which could have been cured if raised promptly. [ Note 2.] See TBMP § 707.02(c) and TBMP § 707.03(c).

Objections may be made to testimony presented by affidavit or declaration for any reason which would require the exclusion of the evidence from consideration. [ Note 3.] 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 4.] Such objections may not be considered until final hearing. [ Note 5.] Further, the Board ordinarily will not strike affidavit or declaration testimony on the basis of a substantive objection if the testimony was taken in accordance with the applicable rules; rather, the Board usually will consider the objection upon evaluation of the probative value of the testimony at final hearing unless the objection has been waived. [ Note 6.] Cf. TBMP § 707.02(c).

If a party fails to attend a testimony deposition, any objection, which is waived if not made at the deposition, is waived. [ Note 7.]

Additionally, by failing to preserve the objection in its brief on the case, or in an appendix to the brief on the case or in a separate statement of objections filed with the brief on the case, a party may waive an objection that was seasonably raised at trial. [ Note 8.] See TBMP § 707.03(c). 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 9.]

NOTES:

 1.   See 37 C.F.R. § 2.123(e)(3), 37 C.F.R. § 2.123(i), and 37 C.F.R. § 2.123(j); and 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 generally Moke America LLC v. Moke USA, LLC, 2020 USPQ2d 10400, at *3-9 (TTAB 2020) (discussing curable vs. noncurable objections to testimony affidavits and exhibits, waiver of objections and timeliness of objections), appeal filed, No. 3:20-cv-00400-MHL (E.D. Va. June 5, 2020). See, e.g., Societe Des Produits Nestle S.A. v. Taboada, 2020 USPQ2d 10893, at *7 (TTAB 2020) (objection that evidence was not adequately disclosed in pretrial disclosures overruled as untimely and waived when first raised in trial brief); International Dairy Foods Association v. Interprofession du Gruyère, 2020 USPQ2d 10892, at *3-7 (TTAB 2020) (when raised for the first time with main brief, objection on the basis of lack of foundation was untimely and waived), aff’d, ___ F. Supp. 3d ___, 2021 WL 6286234 (E.D. Va. Dec. 15, 2021), appeal docketed, No. 22-1041 (4th Cir. Jan. 11, 2022); Grote Industries, Inc. v. Truck-Lite Co., LLC, 126 USPQ2d 1197, 1199-1200, 1207 n.28 (TTAB 2018) (objections deemed waived when first raised in a reply brief ; party estopped from raising procedural objections at final hearing when it failed to timely assert them during the testimony depositions; testimony objections waived when not asserted in or with opening brief; Board considered discovery deposition transcripts that had been untimely filed because adverse party did not object), judgment rev’d and vacated by consent decree, No. 1:18-cv-00599 (W.D.N.Y. June 8, 2022); Coach Services Inc. v. Triumph Learning LLC, 96 USPQ2d 1600, 1603 n.3 (TTAB 2010), aff’d-in-part, rev’d-in-part and remanded on other grounds, 668 F.3d 1356, 101 USPQ2d 1713 (Fed. Cir. 2012).

 2.   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), civil action filed, No. 3:20-cv-00400-DJN-EWH (E.D. Va. June 5, 2020). See also Societe Des Produits Nestle S.A. v. Taboada, 2020 USPQ2d 10893, at *7 (TTAB 2020) (curable objection to pretrial disclosures deemed waived; should have been made via motion to strike promptly after testimony declaration and exhibits were filed); International Dairy Foods Association v. Interprofession du Gruyère, 2020 USPQ2d 10892, at *3-7 (TTAB 2020) (objections based on lack of personal knowledge, hearsay and relevance raised for first time in trial brief considered timely and not waived), aff’d, ___ F. Supp. 3d ___, 2021 WL 6286234 (E.D. Va. Dec. 15, 2021), appeal docketed, No. 22-1041 (4th Cir. Jan. 11, 2022); Moke America LLC v. Moke USA, LLC, 2020 USPQ2d 10400, at *5 (TTAB 2020) (objection to foundation raised for first time in trial brief is untimely because there is no opportunity to cure the alleged defect whether the testimony is by deposition, affidavit or declaration), civil action filed, No. 3:20-cv-00400-DJN-EWH (E.D. Va. June 5, 2020); Hornby v. TJX Companies, 87 USPQ2d 1411, 1417 (TTAB 2008) (objection regarding authentication of testimonial deposition exhibits made in brief but not in testimonial deposition itself overruled – offering party did not have opportunity to provide authenticated testimony in testimonial deposition).

 3.   37 C.F.R. § 2.123(j). See MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES OF PRACTICE, 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 generally Moke America LLC v. Moke USA, LLC, 2020 USPQ2d 10400, at *3-9 (TTAB 2020) (discussing curable vs. noncurable objections to testimony affidavits and exhibits (including hearsay, lack of personal knowledge and lack of foundation), waiver of objections and timeliness of objections).

 4.   37 C.F.R. § 2.123(j). See MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES OF PRACTICE, 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."); 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."). 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 declaration 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).

 5.   37 C.F.R. § 2.123(j). See MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES OF PRACTICE, 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."); 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."). With respect to depositions, see also 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). Cf. Krause v. Krause Publications Inc., 76 USPQ2d 1904, 1907 (TTAB 2005) (same for depositions).

 6.   See 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).

 7.   See NOTICE OF FINAL RULEMAKING, 48 Fed. Reg. 23122, 23132 (May 23, 1983); Wright Line Inc. v. Data Safe Services Corp., 229 USPQ 769, 770 (TTAB 1985); Pass & Seymour, Inc. v. Syrelec, 224 USPQ 845, 847 (TTAB 1984).

 8.   See Grote Industries, Inc. v. Truck-Lite Co., LLC, 126 USPQ2d 1197, 1207 n.28 (TTAB 2018) (testimony objections waived when not asserted in or with opening brief), judgment rev’d and vacated by consent decree, No. 1:18-cv-00599 (W.D.N.Y. June 8, 2022); UVeritech, Inc. v. Amax Lighting, Inc., 115 USPQ2d 1242, 1244 n.3 (TTAB 2015) (various objections asserted during testimony, including that certain documents introduced at trial were not produced during discovery, which were not maintained in brief were deemed waived); General Mills Inc. v. Fage Dairy Processing Industry SA, 100 USPQ2d 1584, 1592 n.7 (TTAB 2011) (objection to testimony deemed waived because it was not maintained in brief) judgment set aside on other grounds, 110 USPQ2d 1679 (TTAB 2014) (non-precedential); 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) (objections 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); 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 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).

 9.   International Dairy Foods Association v. Interprofession du Gruyère, 2020 USPQ2d 10892, at *3 (TTAB 2020) (Board declined to consider applicants’ over 150 objections), aff’d, ___ F. Supp. 3d ___, 2021 WL 6286234 (E.D. Va. Dec. 15, 2021), appeal docketed, No. 22-1041 (4th Cir. Jan. 11, 2022); 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).