702.02 Introduction of Evidence
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.
37 C.F.R. § 2.120(k)(7) When a written disclosure, a discovery deposition, or part thereof, or an answer to an interrogatory, or an admission, or an authenticated produced document has been made of record by one party in accordance with the provisions of paragraph (k)(3) of this section, it may be referred to by any party for any purpose permitted by the Federal Rules of Evidence.
Unless the parties otherwise stipulate, 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.] See TBMP § 101.01 and TBMP § 101.02. 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. [ Note 2.] See TBMP § 101.02
Within the parameters of these rules, there are a number of ways to introduce evidence into the record in a proceeding before the Board. Evidence may be introduced either in the form of testimony depositions taken by a party during its testimony period or in the form of affidavits or declarations subject to the right of the adverse party to conduct cross-examination. Documents and other exhibits may be made of record with appropriate identification and introduction by the witness during the course of the testimony deposition or in a testimony affidavit or declaration. See generally TBMP § 703.01 regarding affidavits, declarations and oral testimony depositions and TBMP § 703.02 regarding testimony depositions on written questions. See also TBMP § 704.13 regarding introducing testimony from another proceeding, and TBMP § 530 regarding motions to use testimony from another proceeding. Certain specified types of evidence, including official records and printed publications as described in 37 C.F.R. § 2.122(e) and discovery responses under 37 C.F.R. § 2.120(k), may, but need not, be introduced in connection with the testimony of a witness. Such evidence may instead be made of record by filing the materials with the Board under cover of a notice of reliance during the testimony period of the offering party. [ Note 3.] See generally TBMP § 704.02 regarding the types of evidence that may be submitted by notice of reliance and the requirements for the introduction of such evidence by notice of reliance. In addition, the parties may enter into a wide variety of stipulations concerning the timing and/or introduction of specified matter into evidence. See TBMP § 705 regarding stipulated evidence. For example, the parties may stipulate that matter otherwise improper for a notice of reliance (such as documents obtained by production under Fed. R. Civ. P. 34) may be introduced in that manner, that a party may rely on its own discovery responses or that notices of reliance can be filed after the testimony periods have closed. There may also be circumstances where improperly offered or otherwise noncomplying evidence may nevertheless be deemed stipulated into the record where, for example, no objection to the evidence is raised and/or the nonoffering party treats the evidence as being of record. [ Note 4.] See generally TBMP § 704 regarding the introduction of other evidence, and TBMP § 704.11 regarding documents obtained through disclosure or document production request deemed stipulated into the record.
A discussion of the time and manner of taking testimony depositions, presenting testimony in affidavit or declaration form, and introducing evidence is presented in the sections that follow.
NOTES:
1. 37 C.F.R. § 2.122(a). See MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES, 81 Fed. Reg. 69950, 69963 (October 7, 2016) ("The Office is amending § 2.122(a) to clarify the heading of the paragraph and to specify that parties may stipulate to rules of evidence for proceedings before the Board."). See also Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1799 (Fed. Cir. 2018) (citing TBMP § 702.02 to support a finding that Board did not abuse its discretion in determining that a party submitted no evidence).
2. 37 C.F.R. § 2.122(a) and 37 C.F.R. § 2.120(k)(7). See MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES, 81 Fed. Reg. 69950, 69963 (October 7, 2016) (amended effective January 14, 2017 to codify current Board practice). See, e.g., Nazon v. Ghiorse, 119 USPQ2d 1178, 1181 n.6 (TTAB 2016) ("Once evidence is properly of record, it may be relied on by any party for any purpose.").
3. See Sports Authority Michigan Inc. v. PC Authority Inc., 63 USPQ2d 1782, 1786 n.4 (TTAB 2002) (notices of reliance must be filed before closing date of party’s testimony period).
4. See, e.g., International Dairy Foods Association v. Interprofession du Gruyère, 2020 USPQ2d 10892, at *3 n.12 (TTAB 2020) (declarations signed 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), aff’d, ___ F. Supp. 3d ___, 2021 WL 6286234 (E.D. Va. Dec. 15, 2021), appeal docketed, No. 22-1041 (4th Cir. Jan. 11, 2022); 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); TV Azteca, S.A.B. de C.V. v. Martin, 128 USPQ2d 1786, 1787 n.5 (TTAB 2018) (because petitioner referred to and relied on respondent’s initial disclosures in presenting its case-in-chief, Board considered them stipulated into record); WeaponX Performance Products Ltd. v. Weapon X Motorsports, Inc., 126 USPQ2d 1034, 1038 (TTAB 2018) (portions of Internet evidence deemed stipulated into record where both parties submitted printouts via notices of reliance and each accepted as fact those portions); Executive Coach Builders, Inc. v. SPV Coach Co., 123 USPQ2d 1175, 1176 n.9 (TTAB 2017) ("because both parties introduced responses to document requests by notice alone and neither party objected, we will treat the responses as being stipulated into the record"); Coach Services Inc. v. Triumph Learning LLC, 96 USPQ2d 1600, 1603, n.3 (TTAB 2010), aff’d-in-part, rev’d-in-part and remanded on other grounds, 668 F.3d 1356, 101 USPQ2d 1713 (Fed. Cir. 2012).