703.01(a)    In General

In addition to submission of evidence under notices of reliance, parties may introduce evidence in the form of testimony depositions taken by a party during its assigned testimony period, or in the form of affidavit or declaration testimony submitted during its testimony period, subject to the right of the adverse party to conduct cross-examination. The submission of evidence and testimony during the parties’ assigned testimony periods corresponds to the trial in court proceedings. [ Note 1.] For information concerning submission of evidence by notice of reliance, see TBMP § 704.

Testimony is taken out of the presence of the Board, by affidavit or declaration, or on oral examination or written questions, and the affidavits, declarations and written deposition transcripts, together with any exhibits thereto, are then submitted to the Board. See TBMP § 702. See also TBMP § 502.01. During a party’s testimony period, testimony is taken by or on behalf of the party, of the party himself or herself (if the party is an individual), or of an official or employee of the party, or of some other witness testifying (either willingly or under subpoena) on behalf of the party.

Testimony affidavits, declarations and depositions are the means by which a party may present the testimony of its witnesses and also introduce into the record those documents and other exhibits that may not be made of record by notice of reliance. See generally TBMP § 704 describing types of evidence admissible by notice of reliance. However, only evidence admissible under the applicable rules of evidence may properly be adduced during a testimony deposition or presented by affidavit or declaration; inadmissibility is a valid ground for objection. [ Note 2.] See TBMP § 707.03. In addition, once evidence has properly been made of record, any party may refer to it for any purpose permitted by the Federal Rules of Evidence. [ Note 3.]

Declarations or affidavits from the application file, that form part of the record, are not trial testimony under 37 C.F.R. § 2.122(b)(2). [ Note 4.]

For a comparison of testimony depositions and discovery depositions, see TBMP § 404.09. For information on how to make discovery depositions of record during trial, see TBMP § 704.09.

NOTES:

 1.   37 C.F.R. § 2.116(e). See MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES, 81 Fed. Reg. 69950, 69959 (October 7, 2016) ("The Office is amending § 2.116(e) to add that the submission of notices of reliance, declarations, and affidavits, as well as the taking of depositions, during the testimony period corresponds to the trial in court proceedings. The revision codifies current Office practice and is consistent with amendments relating to declarations and affidavits."). See Spotify AB v. U.S. Software Inc., 2022 USPQ2d 37, at *5 (TTAB 2022) (objection sustained to testimony declaration executed more than one year prior to trial); Robinson v. Hot Grabba Leaf, LLC, 2019 USPQ2d 149089, at *3-4 (TTAB 2019) (absent stipulation or Board order, "a testimony affidavit or declaration must be taken–that is, executed–during the assigned testimony period, as required by Rule 2.121(a)"), cancellation order vacated on default judgment, No. 0:19-cv-61614-DPG (S.D. Fla. Dec. 17, 2019); Andrusiek v. Cosmic Crusaders LLC, 2019 USPQ2d 222984, at *2 (TTAB 2019) (during its testimony period a party may take the testimony of a witness, by affidavit or declaration, or by deposition upon oral examination, or, if the witness is located in a foreign country, by deposition upon written questions); Sports Authority Michigan Inc. v. PC Authority Inc., 63 USPQ2d 1782, 1786 n.4 (TTAB 2002) ("trial testimony depositions are noticed and taken during the party’s assigned testimony period"). For a general discussion of Board inter partes proceedings, see B&B Hardware, Inc. v. Hargis Industries, Inc., 575 U.S. 138, 135 S. Ct. 1293, 113 USPQ2d 2045, 2049 (2015).

 2.   See 37 C.F.R. § 2.122(a)  and 37 C.F.R. § 2.123(l); Ricardo Media Inc. v. Inventive Software, LLC, 2019 USPQ2d 311355, at *3 (TTAB 2019) (declaration testimony submitted during opposer’s testimony period is trial testimony, not hearsay, and "the equivalent of live testimony ‘in court.’").

 3.   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 further amending § 2.122(a) consistent with § 2.120(k)(7), to add that 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 amendments codify current Office practice."). See, e.g., New Era Cap Co., Inc. v. Pro Era, LLC, 2020 USPQ2d 10596, at *12 (TTAB 2020) (citing Trademark Rule 2.122(a)); 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."). See also Australian Therapeutic Supplies Pty. Ltd. v. Naked TM, LLC, 129 USPQ2d 1027, 1030 n.29 (TTAB 2018) (party may rely on testimony from a discovery deposition already made of record by adverse party-no need to resubmit), rev'd and remanded on other grounds, 965 F.3d 1370, 2020 USPQ2d 10837 (Fed. Cir. 2020), reh'g en banc denied, 2020 USPQ2d 11438 (Fed. Cir. 2020), cert. denied, 142 S. Ct. 82 (2021); Anheuser-Busch, Inc. v. Major Mud & Chemical Co., 221 USPQ 1191, 1192 n.7 (TTAB 1984) (once filed, testimony depositions are of record for both parties for all relevant purposes; adversary’s discovery responses, once filed, are considered to be in evidence for both parties for all purposes permitted by the Federal Rules of Evidence). 37 C.F.R. § 2.120(k)(7).

 4.   Robinson v. Hot Grabba Leaf, LLC, 2019 USPQ2d 149089, at *4, n.23 (TTAB 2019) (declaration submitted in application file during prosecution not considered trial testimony since it was dated over three years prior to petitioner’s testimony period; declaration submitted with summary judgment reply brief that was executed several months before trial was not trial testimony and was not considered because it was not affirmed by other trial testimony that attested to its accuracy), cancellation order vacated on default judgment, No. 0:19-cv-61614-DPG (S.D. Fla. Dec. 17, 2019).