707.01 In General
37 C.F.R. § 2.122(a) Applicable rules. Unless the parties otherwise stipulate, the rules of evidence for proceedings before the Trademark Trial and Appeal Board are the Federal Rules of Evidence, the relevant provisions of the Federal Rules of Civil Procedure, the relevant provisions of Title 28 of the United States Code, and the provisions of this part. When evidence has been made of record by one party in accordance with these rules, it may be referred to by any party for any purpose permitted by the Federal Rules of Evidence.
The introduction of evidence in inter partes proceedings before the Board is governed by the Federal Rules of Evidence, the relevant portions of the Federal Rules of Civil Procedure, the relevant provisions of Title 28 of the United States Code, and the rules of practice in trademark cases (i.e., the provisions of Part 2 of Title 37 of the Code of Federal Regulations). [ Note 1.] A party to a Board inter partes proceeding that believes that proffered evidence should, under these rules, be excluded from consideration, may raise an objection. The procedure for raising an objection to proffered evidence depends on the nature of the evidence and the ground for objection. [ Note 2.]
As a general proposition, where ordinarily inadmissible hearsay evidence is admitted into evidence without objection, it may be considered for whatever probative value the finder of fact chooses to give it. [ Note 3.] When parties specifically agree to waive hearsay objections, the Board may rely on the evidence for the truth of the matter asserted. [ Note 4.]
The Board is entitled to weigh the evidence [ Note 5.], and has the discretion on how it considers evidentiary objections, especially in cases where numerous objections have been lodged or the objections are not outcome determinative. [ Note 6.]
An objection that is first raised in a reply brief is untimely. [ Note 7.]
See TBMP § 801.02(c) for information about reply briefs.
NOTES:
2. See generally Moke America LLC v. Moke USA, LLC, 2020 USPQ2d 10400, at *3-9 (TTAB 2020); see also 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; objection is curable and should have been made via motion to strike promptly after testimony declaration and exhibits were filed), appeal filed, No. 3:20-cv-00400-MHL (E.D. Va. June 5, 2020).
3. See, e.g., Daniel J. Quirk Inc. v. Village Car Co., 120 USPQ2d 1146 (TTAB 2016); Sunnen Products Co. v. Sunex International Inc., 1 USPQ2d 1744, 1746 n.9 (TTAB 1987); Flowers Industries Inc. v. Interstate Brands Corp., 5 USPQ2d 1580, 1582 n.4 (TTAB 1987).
4. Daniel J. Quirk Inc. v. Village Car Co., 120 USPQ2d 1146 (TTAB 2016); Blackhorse v. Pro-Football, Inc., 111 USPQ2d 1080, 1086 (TTAB 2014), aff’d, 112 F. Supp. 3d 439, 115 USPQ2d 1524 (E.D. Va. 2015), vacated and remanded, Pro Football, Inc. v. Blackhorse, 709 F. App’x 183 (per curiam) (4th Cir. 2018) (mem.). Cf. Optimal Chemical Inc. v. Srills LLC, 2019 USPQ2d 338409, at *14 n.90 (TTAB 2019) (Board considered Internet evidence for the truth of the matters asserted where the petitioner did not object and opined on its accuracy in its rebuttal testimony and rebuttal brief).
5. See Real Foods Pty Ltd. v. Frito-Lay North America, Inc., 906 F.3d 965, 128 USPQ2d 1370, 1378 (Fed. Cir. 2018) ("The TTAB is entitled to weigh the evidence …") (citing Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 856, 214 USPQ 1, 7 (1982) ("Determining the weight and credibility of the evidence is the special province of the trier of fact.")).
6. See International Dairy Foods Association v. Interprofession du Gruyère, 2020 USPQ2d 10892, at *3, *7 (TTAB 2020) (Board declined to rule on applicant’s 150 individual evidentiary objections; instead ruling on only a selected few), aff’d, ___ F. Supp. 3d ___, 2021 WL 6286234 (E.D. Va. Dec. 15, 2021), appeal docketed, No. 22-1041 (4th Cir. Jan. 11, 2022); Spiritline Cruises LLC v. Tour Management Services, Inc., 2020 USPQ2d 48324, at *2 (TTAB 2020) ("Board proceedings are heard by Administrative Trademark Judges, not lay jurors who might easily be misled, confused, or prejudiced by irrelevant evidence"); Hanscomb Consulting, Inc. v. Hanscomb Ltd., 2020 USPQ2d 10085, at *3 (TTAB 2020) (Board is "capable of weighing the relevance and strength or weakness of the objected-to testimony and evidence, including any inherent limitations"); AT&T Mobility LLC v. Thomann, 2020 USPQ2d 53785, at *4 (TTAB 2020) (same); Ricardo Media Inc. v. Inventive Software, LLC, 2019 USPQ2d 311355, at *3 (TTAB 2019) (same); M/S R.M. Dhariwal (HUF) 100% EOU v. Zarda King Ltd., 2019 USPQ2d 149090, at *3 (TTAB 2019) (same); Norris v. PAVE: Promoting Awareness, Victim Empowerment, 2019 USPQ2d 370880 at *1-2 (TTAB 2019) (same); Double Coin Holdings Ltd. v. Tru Development, 2019 USPQ2d 377409, at *4 (TTAB 2019) (Board is capable of assessing the proper evidentiary weight to be accorded the testimony and evidence, including its imperfections and admissibility, and according it whatever probative value it may have); Pierce-Arrow Society v. Spintek Filtration, Inc., 2019 USPQ2d 471774, at *3 (TTAB 2019) (Board saw no compelling reason to individually address the objections of hearsay, lack of personal knowledge, lack of authentication, irrelevance, and lack of foundation but kept the objections in mind when considering the testimony and evidence, and according appropriate value to the testimony and evidence according to its merits); Milwaukee Electric Tool Corp. v. Freud America, Inc., 2019 USPQ2d 460354, at *4 (TTAB 2019) (declining to individually address numerous objections that go to weight rather than admissibility, noting that the Board is capable of weighing the relevance or the strength or weakness of the evidence and according it appropriate probative value), complaint filed, No. 20-cv-109 (M.D.N.C. Feb. 3, 2020); Grote Industries, Inc. v. Truck-Lite Co., LLC, 126 USPQ2d 1197, 1200 (TTAB 2018) ("[O]ur proceedings are tried before judges not likely to be easily confused or prejudiced. Objections to trial testimony on bases more relevant to jury trials are particularly unnecessary in this forum."), judgment rev’d and vacated by consent decree, No. 1:18-cv-00599 (W.D.N.Y. June 8, 2022); RxD Media, LLC v. IP Application Development LLC, 125 USPQ2d 1801, 1804 (TTAB 2018) ("the Board is capable of weighing the relevance and strength or weakness of the objected to testimony and evidence, including any inherent limitations"), aff’d, 377 F. Supp. 3d 588 (E.D. Va. 2019), aff’d, 986 F.3d 361, 2021 USPQ2d 81 (4th Cir. 2021); Kohler Co. v. Honda Giken Kogyo K.K., 125 USPQ2d 1468, 1478 (TTAB 2017) (where parties devoted more than 30 pages of their briefing at final hearing to numerous detailed evidentiary objections, Board exercised discretion to rule explicitly only on major objections); Poly-America, L.P. v. Illinois Tool Works Inc., 124 USPQ2d 1508, 1510 (TTAB 2017) ("we choose not to make specific rulings on each and every objection"), aff’d, No. 3:18-cv-00443-C (N.D. Tex. Oct. 29, 2019), appeal dismissed, No. 19-11180 (5th Cir. Feb. 4, 2020); Luxco, Inc. v. Consejo Regulador del Tequila, A.C., 121 USPQ2d 1477, 1479 (TTAB 2017), appeal dismissed per stipulation, No. 17-00345 (E.D. Va. August 24, 2017); Inter IKEA Sys. B.V. v. Akea, LLC, 110 USPQ2d 1734, 1737 (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.); Kohler Co. v. Baldwin Hardware Corp., 82 USPQ2d 1100, 1104 (TTAB 2007); Hunt Control Systems Inc. v. Koninkijke Philips Elecs. N.V., 98 USPQ2d 1558, 1564 (TTAB 2011) ("Ultimately, the Board is capable of weighing the relevance and strength or weakness of the objected-to testimony and evidence in this specific case, including any inherent limitations, and this precludes the need to strike the testimony and evidence."); U.S. Playing Card Co. v. Harbro LLC, 81 USPQ2d 1537, 1540 (TTAB 2006) ("[B]ecause an opposition is akin to a bench trial, the Board is capable of assessing the proper evidentiary weight to be accorded the testimony and evidence, taking into account the imperfections surrounding the admissibility of such testimony and evidence."). Cf. Harris v. Rivera, 454 U.S. 339, 346 (1981) ("In bench trials, judges routinely hear inadmissible evidence that they are presumed to ignore when making decisions.").
7. See Grote Industries, Inc. v. Truck-Lite Co., LLC, 126 USPQ2d 1197, 1199 (TTAB 2018) ("Objections raised for the first time in a reply brief are untimely because they effectively foreclose the adverse party from responding to the objections."), judgment rev’d and vacated by consent decree, No. 1:18-cv-00599 (W.D.N.Y. June 8, 2022). Cf. Productos Lacteos Tocumbo S.A. de C.V. v. Paleteria La Michoacana Inc., 98 USPQ2d 1921, 1927 (TTAB 2011) (objection on the basis that the witness had not been previously disclosed waived where not renewed in main brief and raised for first time in rebuttal brief), aff’d, 188 F. Supp. 3d 222 (D.D.C. 2016), aff’d, 743 F. App’x 457, 128 USPQ2d 1172 (D.C. Cir. 2018); Kohler Co. v. Baldwin Hardware Corp., 82 USPQ2d 1100, 1104 (TTAB 2007) (objection raised at trial waived when petitioner waited until its reply brief to renew objections).