533.03    Guidance Regarding Motions to Strike Testimony and Raising Substantive Objections

The Board does not ordinarily strike testimony taken in accordance with the applicable rules on the basis of substantive objections; rather, such objections are considered by the Board in its evaluation of the probative value of the testimony at final hearing. [ Note 1.]

Objections to testimony depositions on grounds other than the ground of untimeliness, or the ground of improper or inadequate notice, generally should not be raised by motion to strike. Rather, the objections should simply be made in writing at the time specified in the applicable rules, and orally "on the record" at the taking of the deposition, as appropriate. [ Note 2.] See TBMP § 707.03(c). Such objections to an oral testimony deposition must be maintained in the objecting party’s brief, or they are considered to have been waived. [ Note 3.]

The defending party may seasonably raise the objection in different ways where the testimony is by declaration or affidavit depending on the circumstances of the case. For example, in the case of a curable objection such as lack of foundation, the defending party may elect to seek oral cross-examination, query the foundation for the testimony and exhibits introduced, and, if the defending party finds the foundation testimony to be insufficient, it may raise an objection to the testimony or exhibit on the deposition record. [ Note 4.]

In the alternative, the defending party may serve an objection on the party proffering the declaration or affidavit and assert the objection in its brief. The defending party should file the objection with the Board when made, to put the Board on notice that it made a timely objection and the party offering the witness may seek to extend or reopen testimony to cure the defect. The proffering party has the option of trying to cure the defect or arguing that the objection should be overruled. [ Note 5.]

Finally, an objection may be made by way of a motion to strike filed no later than the twenty (20) days permitted for the defending party to elect cross-examination, which again puts the proffering party on notice that there may be a curable defect and puts the Board on notice that an extension or reopening of the testimony period may be sought, recognizing that a determination may be deferred to final decision. [ Note 6.] The key aspect is that an objection is seasonably lodged. [ Note 7.] The manner in which it is raised may vary depending on the circumstances.

NOTES:

 1.Tao   Tao Licensing, LLC v. Bender Consulting Ltd., 125 USPQ2d 1043, 1047 (TTAB 2017); Board of Regents, University of Texas System v. Southern Illinois Miners, LLC, 110 USPQ2d 1182, 1194 n.19 (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.); Krause v. Krause Publications Inc., 76 USPQ2d 1904, 1907 (TTAB 2005); Marshall Field & Co. v. Mrs. Fields Cookies, 25 USPQ2d 1321, 1326 (TTAB 1992).

 2.   See Wet Seal Inc. v. FD Management Inc., 82 USPQ2d 1629, 1632 (TTAB 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).

 3.   See McGowen Precision Barrels, LLC v. Proof Research, Inc., 2021 USPQ2d 559, at *13 (TTAB 2021) (objection raised in motion to strike that was deferred until final hearing was waived when not renewed in trial brief); Wet Seal Inc. v. FD Management Inc., 82 USPQ2d 1629, 1632 (TTAB 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).

 4.   Moke America, LLC v. Moke USA, LLC, 2020 USPQ2d 10400, at *5 (TTAB 2020), civil action filed, No. 3:20-CV-00400 (E.D. Va. June 5, 2020). See, e.g., Barclays Capital Inc. v. Tiger Lily Ventures, 124 USPQ2d 1160, 1167 (TTAB 2017) (party objecting to declaration testimony [on substantive grounds] may either elect oral cross-examination or file a motion to strike in order to lodge an objection to declaration testimony).

 5.   Moke America, LLC v. Moke USA, LLC, 2020 USPQ2d 10400, at *5 (TTAB 2020), civil action filed, No. 3:20-CV-00400 (E.D. Va. June 5, 2020).

 6.   Moke America, LLC v. Moke USA, LLC, 2020 USPQ2d 10400, at *5 (TTAB 2020), civil action filed, No. 3:20-CV-00400 (E.D. Va. June 5, 2020).

 7.   Moke America, LLC v. Moke USA, LLC, 2020 USPQ2d 10400, at *5 (TTAB 2020) ("a]n objection to foundation raised for the first time in a trial brief is untimely because the party offering the testimony (whether by deposition, affidavit or declaration) does not have the opportunity to cure the alleged defect."), civil action filed, No. 3:20-CV-00400 (E.D. Va. June 5, 2020); International Dairy Foods Association v. Interprofession du Gruyère, & Syndicat Interprofessionnel du Gruyère, 2020 USPQ2d 10892, at *3-4 (TTAB 2020) (when raised for the first time with main brief, objection on the basis of lack of foundation is untimely and waived).