1303.01    Form of Brief

37 C.F.R § 2.126  Form of submissions to the Trademark Trial and Appeal Board.

(a) Submissions must be made to the Trademark Trial and Appeal Board via ESTTA

  • (1) Text in an electronic submission must be filed in at least 11-point type and double-spaced.
  • (2) Exhibits pertaining to an electronic submission must be made electronically as an attachment to the submission and must be clear and legible.

(b) In the event that ESTTA is unavailable due to technical problems, or when extraordinary circumstances are present, submissions may be filed in paper form. All submissions in paper form, except the extensions of time to file a notice of opposition, the notice of opposition, the petition to cancel, or answers thereto (see §§ 2.101(b)(2), 2.102(a)(2), 2.106(b)(1), 2.111(c)(2), and 2.114(b)(1)), must include a written explanation of such technical problems or extraordinary circumstances. Paper submissions that do not meet the showing required under this paragraph (b) will not be considered. A paper submission, including exhibits and depositions, must meet the following requirements:

  • (1) A paper submission must be printed in at least 11-point type and double-spaced, with text on one side only of each sheet;
  • (2) A paper submission must be 8 to 8.5 inches (20.3 to 21.6 cm.) wide and 11 to 11.69 inches (27.9 to 29.7 cm.) long, and contain no tabs or other such devices extending beyond the edges of the paper;
  • (3) If a paper submission contains dividers, the dividers must not have any extruding tabs or other devices, and must be on the same size and weight paper as the submission;
  • (4) A paper submission must not be stapled or bound;
  • (5) All pages of a paper submission must be numbered and exhibits shall be identified in the manner prescribed in § 2.123(g)(2);
  • (6) Exhibits pertaining to a paper submission must be filed on paper and comply with the requirements for a paper submission.

(c) To be handled as confidential, submissions to the Trademark Trial and Appeal Board that are confidential in whole or part pursuant to § 2.125(f) must be submitted using the "Confidential" selection available in ESTTA or, where appropriate, under a separate paper cover. Both the submission and its cover must be marked confidential and must identify the case number and the parties. A copy of the submission for public viewing with the confidential portions redacted must be submitted concurrently.

37 C.F.R § 2.142  Time and manner of ex parte appeals.

(b)(2) Briefs must meet the requirements prescribed in § 2.126, except examining attorney submissions need not be filed through ESTTA. Without prior leave of the Trademark Trial and Appeal Board, a brief shall not exceed twenty-five pages in length in its entirety, including the table of contents, index of cases, description of the record, statement of the issues, recitation of the facts, argument, and summary. A reply brief from the appellant, if any, shall not exceed ten pages in length in its entirety. Unless authorized by the Board, no further briefs are permitted.

(b)(3) Citation to evidence in briefs should be to the documents in the electronic record for the subject application or registration by date, the name of the paper under which the evidence was submitted, and the page number in the electronic record.

Guidance regarding the form of appeal briefs in TBMP § 1203.01 may be applied to appeals in expungement and reexamination proceedings.

In appeals in expungement and reexamination proceedings, the brief should indicate that it is an appeal brief, and include information identifying the expungement or reexamination proceeding number in which it is filed, the registrant’s name, the registration number, and the mark. When referring to the record, the registrant and examining attorney should cite to the proceeding record, currently the TSDR database. Citation format should be by date, name of the paper under which the evidence was submitted and the page number in the electronic record, for example: November 4, 2013 Office Action, TSDR p. 2. The Examining Attorney and the registrant may cite to the TSDR record in .pdf format, but must indicate that they are doing so in their brief. [ Note 1.] Where appropriate, reference to the TTABVUE entry and page number, e.g., 1 TTABVUE 2, should also be used. [ Note 2.]

NOTES:

 1.   Cf. In re United Trademark Holdings, Inc., 122 USPQ2d 1796, 1797 n.5 (TTAB 2017) (Board in its opinion cited to the TSDR record in .pdf format).

 2.   37 C.F.R § 2.142(b)(3). See MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES, 81 Fed. Reg. 69950, 69968 (Oct. 7, 2016) ("The Office is adding new § 2.142(b)(3) to specify that citation to evidence in briefs should be to the documents in the electronic application record by date, the name of the paper under which the evidence was submitted, and the page number in the electronic record. The amendment is intended to facilitate review of record evidence by the applicant, the examining attorney, the Board, and the public.").