110.02 Attachments to ESTTA Filings
110.02(a) In General
Many ESTTA forms permit or require the filer to attach an electronic file to be transmitted to the Board as part of the filing. For instance, an ESTTA user filing a notice of opposition or petition for cancellation must attach to its filing a pleading (i.e., a short and plain statement showing that the filer is entitled to relief). Likewise, a party filing a motion for summary judgment must attach a motion, as well as any affidavits or other evidence in support of it. When such a file can or must be attached, ESTTA will prompt the user to identify the file on the user’s computer and attach it to the ESTTA submission. Once a file has been selected and attached, the file may be opened in a separate window so that the user may determine whether all of the relevant pages of the selected file or files have been designated for filing.
110.02(b) Form of ESTTA Attachments
Attachments to ESTTA filings may be in PDF, TIFF or TXT format. [ Note 1.] PDF is preferred, and should be used, if possible. Files should be formatted in letter size (8.5" x 11"), and should be rendered at 300 dpi resolution. ESTTA will accept either color or black and white PDF documents for uploading. It is recommended that all documents submitted electronically via ESTTA be "machine readable" to allow the Board and others to search the document using key words, and also mark and copy text from it. Most word processors feature drop-down options to "create .pdf," "save to .pdf," or "print to .pdf."
The filer is responsible for ensuring that all Board submissions – including attachments to ESTTA filings – are legible. Filers should be aware that the quality of ESTTA submissions is often better than those submitted in paper. [ Note 2.] Problems with image quality sometimes arise when poor quality documents are scanned or when the quality of legible documents is degraded in the scanning process; these problems typically arise in documents (or parts of documents) featuring graphical material, as opposed to text. Quality can sometimes be significantly degraded when contrast settings used in scanning are not appropriate for graphical material, or when color materials are scanned or copied in black and white prior to submission. If legibility of material in color or grayscale is important, filers are urged to scan the papers in color and to adjust the scanner’s contrast settings to achieve acceptable results prior to ESTTA filing. Users are urged to check the quality of their submission in TTABVUE after filing. TTABVUE contains the same images that the Board will use in considering the submission; if the TTABVUE image is not of acceptable quality, the user should not assume that the Board will be able to view and consider it appropriately. [ Note 3.] Original paper documents, when such submissions are permitted, are retained for a period of time, usually less than one year, because, the Board works from the scanned images, rather than the originals.
In addition, electronically submitted pleadings, motions, briefs, and the like must be formatted for at least 11-point type and be double-spaced. [ Note 4.] Exhibits to pleadings, motions, and briefs need not be reformatted to meet these requirements, but must be legible.
NOTES:
1. PDF stands for Portable Document Format, a platform-independent, open standard for document exchange. TIFF stands for Tagged Image File Format. TXT is used here to denote a plain-text file format (with .txt extension), with little or no formatting or graphics capability. TIFF and TXT files will be converted to PDF format when they are received by ESTTA. Most word processing programs can directly convert files into one of these formats. Alternatively, papers can usually be scanned in PDF or TIFF format.
2. In re Loggerhead Tools, LLC, 119 USPQ2d 1429, 1433 n.5 (TTAB 2016) (filers are responsible for ensuring that all submissions are legible). All paper submissions, when permitted, are scanned by the Board upon receipt. Please Note: whether filed in paper form or filed electronically, the quality of papers scanned into TTABVUE appears the same way as when they are submitted. See, e.g., In re Sela Products., LLC, 107 USPQ2d 1580, 1585 n.5 (TTAB 2013).
3. In re Virtual Independent Paralegals, LLC, 2019 USPQ2d 111512, at *7 n.23 (TTAB 2019) ("If evidence is not legible, we cannot consider it"; "the Board will only consider evidence or a portion of the evidence if it is clear and legible."); Luxco, Inc. v. Consejo Regulador del Tequila, A.C., 121 USPQ2d 1477, 1506 n.195 (TTAB 2017) (party has responsibility of ensuring submission entered into record); Weider Publications, LLC v. D&D Beauty Care Co., 109 USPQ2d 1347, 1350-51 (TTAB 2014) (duty of party making submissions to ensure they were entered into the trial record), appeal dismissed per stipulation, No. 2014-1461 (Fed. Cir. Oct. 10, 2014); Turdin v. Trilobite, Ltd., 109 USPQ2d 1473, 1476 n.6 (TTAB 2014) ("the Board primarily uses TTABVUE in reviewing evidence"); Alcatraz Media, Inc. v. Chesapeake Marine Tours Inc. dba Watermark Cruises, 107 USPQ2d 1750, 1758 n.16 (TTAB 2013) ("the onus is on the party making the submissions to ensure that, at a minimum, all materials are clearly readable by the adverse party and the Board"), aff’d, 565 F. App’x 900 (Fed. Cir. 2014) (mem.).
110.02(c) Size Limitations
ESTTA is suited for large filings such as trial testimony and notices of reliance. There is no specific limit to the amount of evidence one may submit in support of a Board proceeding. However, filers should use reason and avoid the submission of irrelevant or merely cumulative evidence. The unnecessary submission of large records is a significant burden upon the Board. [ Note 1.] See TBMP § 702.05 for more information about submission of large records in general.
Filers should, however, be aware of certain system limitations. Filers may attach one or more files to any ESTTA form that permits or requires an attachment. The size limit for each file attached is 6 MB, and the aggregate of all attached files for a single ESTTA transmission may not exceed 53 MB. However, because very large files degrade the performance of the Board’s electronic file system, filers should limit each ESTTA submission to no more than an aggregate (all attached files combined) so as not to exceed the limitations. If a single submission, e.g., a single testimonial transcript or notice of reliance, will exceed the limitations, it should be broken into two or more submissions, in logical segments, filed consecutively.
NOTES:
1. Corporacion Habanos SA v. Guantanamera Cigars Co., 102 USPQ2d 1085, 1091 (TTAB 2012) (excessive record on a single issue); General Mills Inc. v. Fage Dairy Processing Industry SA, 100 USPQ2d 1584, 1591 (TTAB 2011) (excessively large record); UMG Recordings Inc. v. Mattel Inc., 100 USPQ2d 1868, 1873 (TTAB 2011) (parties’ submitted much more evidence than was necessary to support respective positions).