533.01    On Ground of Untimeliness

37 C.F.R. § 2.121(a)  The Trademark Trial and Appeal Board will issue a trial order setting a deadline for each party’s required pretrial disclosures and assigning to each party its time for taking testimony and presenting evidence ("testimony period"). No testimony shall be taken or evidence presented except during the times assigned, unless by stipulation of the parties approved by the Board, or upon motion granted by the Board, or by order of the Board. …

37 C.F.R. § 2.123(a)(1)  The testimony of witnesses in inter partes cases may be submitted in the form of an affidavit or a declaration pursuant to § 2.20 and in conformance with the Federal Rules of Evidence, filed during the proffering party’s testimony period, subject to the right of any adverse party to elect to take and bear the expense of oral cross-examination of that witness as provided under paragraph (c) of this section if such witness is within the jurisdiction of the United States, or conduct cross-examination by written questions as provided in § 2.124 if such witness is outside the jurisdiction of the United States, and the offering party must make that witness available; or taken by deposition upon oral examination as provided by this section or by deposition upon written questions as provided by § 2.124.

A party may not take an oral testimony deposition or execute or submit a testimony affidavit or declaration outside of its assigned testimony period, except by stipulation of the parties approved by the Board, or upon motion granted by the Board, or by order of the Board. [ Note 1.] See TBMP § 701.

When there is no such approved stipulation, granted motion, or Board order, and an oral testimony deposition is taken after the close of the deposing party’s testimony period or a testimony affidavit or declaration is executed or filed outside of the assigned testimony period, an adverse party may file a motion to strike the testimony deposition, in its entirety, as untimely. [ Note 2.] In some circumstances it may be appropriate for the adverse party to wait and raise this ground for objection in its brief on the case; however, in others it may be deemed waived. [ Note 3.] See TBMP § 707.03(b)(1).

NOTES:

 1.   37 C.F.R. § 2.121(a). See Hole In 1 Drinks, Inc. v. Lajtay, 2020 USPQ2d 10020, at *2 (TTAB 2020) ("a party may introduce testimony and evidence only during its assigned testimony period"); Wirecard AG v. Striatum Ventures B.V., 2020 USPQ2d 10086, at *2 n.3 (TTAB 2020) (parties stipulated that any declaration or affidavit shall be admissible even though executed before and not during the testimony period of a party); M/S R.M. Dhariwal (HUF) 100% EOU v. Zarda King Ltd., 2019 USPQ2d 149090, at *2 n.11 (TTAB 2019) (substitute testimony declaration was untimely filed outside of opposer’s testimony period); Robinson v. Hot Grabba Leaf, LLC, 2019 USPQ2d 149089, *3-4 (TTAB 2019) (three year old declaration from application file was not of record as trial testimony as it was not executed (taken) during the assigned testimony period), cancellation order vacated on default judgment, (S.D. Fla. Dec. 17, 2019). See also Fossil Inc. v. Fossil Group, 49 USPQ2d 1451, 1454 n.1 (TTAB 1998) (parties stipulated that testimony deposition of applicant’s witness could be taken prior to its testimony period on the same day as opposer’s witness to achieve efficiencies in time and cost). Cf. Sunrider Corp. v. Raats, 83 USPQ2d 1648, 1651 (TTAB 2007) (objection to notice of deposition based on timeliness overruled because the deposition was noticed and taken during the assigned testimony period). But see International Dairy Foods Association v. Interprofession du Gruyère, & Syndicat Interprofessionnel du Gruyère, 2020 USPQ2d 10892, at *3 n.12 (TTAB 2020) (declarations signed by witnesses prior to testimony period and submitted by opposers as trial testimony considered to have been properly submitted because applicants did not object to them as untimely, and, in fact, treated them as part of the record by raising substantive objections against them).

 2.   See 37 C.F.R. § 2.121(a); Harjo v. Pro-Football Inc., 45 USPQ2d 1789, 1790 (TTAB 1998) (testimonial deposition taken outside testimony period stricken); M-Tek Inc. v. CVP Systems Inc., 17 USPQ2d 1070, 1072-23 (TTAB 1990) (motion to strike testimony for insufficient notice construed as motion to strike testimony taken out of time).

 3.   See Societe Des Produits Nestle S.A. v. Cándido Viñuales Taboada, 2020 USPQ2d 10893, at *7 (TTAB 2020) (objection that evidence was not adequately disclosed in pretrial disclosures overruled as untimely when first raised in trial brief; objection is curable and should have been made via motion to strike promptly after testimony declaration and exhibits were filed). Cf. Moke America, LLC v. Moke USA, LLC, 2020 USPQ2d 10400, at *5 (TTAB 2020) ("An 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); Of Counsel Inc. v. Strictly of Counsel Chartered, 21 USPQ2d 1555, 1556 n.2 (TTAB 1991) (where applicant first raised an untimeliness objection in its brief on the case, objection held waived, since the premature taking of testimony deposition two days prior to opening of testimony period could have been corrected upon seasonable objection).