704.05(a)    Exhibits to Pleadings

37 C.F.R. § 2.122(c)  Exhibits to pleadings. Except as provided in paragraph (d)(1) of this section, an exhibit attached to a pleading is not evidence on behalf of the party to whose pleading the exhibit is attached, and must be identified and introduced in evidence as an exhibit during the period for the taking of testimony.

37 C.F.R. § 2.122(d)  Registrations.

  • (1) A registration of the opposer or petitioner pleaded in an opposition or petition to cancel will be received in evidence and made part of the record if the opposition or petition is accompanied by an original or photocopy of the registration prepared and issued by the Office showing both the current status of and current title to the registration, or by a current copy of information from the electronic database records of the Office showing the current status and title of the registration. For the cost of a copy of a registration showing status and title, see § 2.6(b)(4).

Exhibits attached to a pleading are not evidence on behalf of the party to whose pleading they are attached, and must be properly identified and introduced in evidence as exhibits during the testimony period. [ Note 1.] However, there are two exceptions to this rule.

The first exception is a current status and title copy, prepared by the Office, of a plaintiff’s pleaded registration. When a plaintiff submits an original or photocopy of a status and title copy, prepared and issued by the Office, of its pleaded registration as an exhibit to its complaint, the registration will be received in evidence and made part of the record without any further action by plaintiff. [ Note 2.]

The second exception is a current printout or copy of information from the electronic database records of the USPTO showing the current status and title of a plaintiff’s pleaded registration. When a plaintiff submits a printout or copy of such information as an exhibit to its complaint, the registration will be received in evidence and made part of the record without any further action by plaintiff. [ Note 3.] See TBMP § 704.03(b)(1)(A). The printout or copy of the information may be taken from (a) TSDR showing the current status and title (owner) of the registration and, if the TSDR printout or copy of the information does not reflect the current owner of the registration, a printout or copy of the information from the Trademark Assignment Recordation Branch database demonstrating an assignment to the current owner of the registration; or (b) TESS along with a copy of records from the Trademark Assignment Recordation Branch database showing and assignment to the current owner of the registration.

NOTES:

 1.   37 C.F.R. § 2.122(c). See Poly-America, L.P. v. Illinois Tool Works Inc., 124 USPQ2d 1508, 1510 n.5 (TTAB 2017) (exhibits to the petition for cancellation consisting of copies of patents, photographs of certain goods identified in the involved registrations, packaging for certain of the identified goods and Internet materials not considered), aff’d, No. 3:18-cv-00443-C (N.D. Tex. Oct. 29, 2019), appeal dismissed, No. 19-11180 (5th Cir. Feb. 4, 2020); Chanel, Inc. v. Makarczyk, 110 USPQ2d 2013, 2016 n.5 (TTAB 2014) (materials attached to answer not considered).

 2.   See 37 C.F.R. § 2.122(c)  and 37 C.F.R. §  2.122(d)(1).

 3.   Bausch & Lomb Inc. v. Karl Storz GmbH & Co. KG, 87 USPQ2d 1526, 1530 n.4 (TTAB 2008). Cf. Chutter, Inc. v. Great Concepts, LLC, 119 USPQ2d 1865, 1867 n.3 (TTAB 2016) ("The mere listing of an application number in the electronic record does not make that application of record."); Melwani v. Allegiance Corp., 97 USPQ2d 1537, 1539-40 (TTAB 2010) (pleaded registrations not of record where registration numbers were inputted in the ESTTA protocol but copies of registrations were not attached as exhibits).