537    Motion For Leave to Exceed Page Limit For Brief On Case

37 C.F.R. § 2.128(b)  Briefs at final hearing. ... Each brief shall contain an alphabetical index of cited cases. Without prior leave of the Trademark Trial and Appeal Board, a main brief on the case shall not exceed fifty-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; and a reply brief shall not exceed twenty-five pages in its entirety. Evidentiary objections that may properly be raised in a party’s brief on the case may instead be raised in an appendix or by way of a separate statement of objections. The appendix or separate statement is not included within the page limit. Any brief beyond the page limits and any brief with attachments outside the stated requirements may not be considered by the Board.

Motions for leave to file a brief on the case in excess of the page limit are disfavored by the Board and rarely granted. Because the Board is an administrative tribunal of limited jurisdiction, empowered to determine only the right to register, very few of the cases before it are of such a nature as to require a brief on the case that exceeds the 37 C.F.R. § 2.128(b)  page limit. Further, one of the primary purposes of the rule is to assist the Board in managing its workload, and to encourage litigants to focus their arguments and eliminate needless verbiage. [ Note 1.] Thus, a party seeking leave to file a brief on the case with more than the allowed number of pages must obtain "prior leave" from the Board to do so. [ Note 2.] The motion must be submitted on or before the date that the brief is due. [ Note 3.] This is so even in those cases where the motion is filed with the consent of the adverse party or parties. 37 C.F.R. § 2.128(b)  is for the benefit of the Board, and it is only with the Board’s permission, timely sought, that a brief exceeding the page limit will be entertained.

The preferred practice, when a timely motion for leave to exceed the page limit is filed, is that the proposed over-length brief not be filed with the motion. If the moving party refrains from filing its brief with the motion, and the motion is granted, the Board in its decision on the motion will allow time for the filing of the brief and specify the number of additional pages granted. Alternatively, if the motion is denied, the Board, in its decision, will allow time for the filing of a brief that does not exceed the page limit specified in 37 C.F.R. § 2.128(b). On the other hand, if the proposed overlength brief is filed with a timely motion, and the motion is granted, the Board will accept the brief. If a timely motion is denied, the overlength brief submitted with the motion will be given no consideration, and the Board will allow time for the filing of a brief that conforms to the page limit set out in 37 C.F.R. § 2.128(b). [ Note 4.]

A timely motion to exceed the specified page limit need not be accompanied by a motion to extend the time for filing the subject brief. As noted in the preceding paragraph, when the Board rules upon the motion to exceed the page limit, it will reset the due date for the brief that is the subject of the motion, along with the due dates for any remaining briefs on the case, whether or not the motion is granted.

If a party files a brief that exceeds the page limit, but does not file a timely motion for leave to file such a brief, the brief will be stricken in its entirety, without leave to file a substitute brief that meets the limit. [ Note 5.]

A motion for leave to file a brief exceeding the page limit is evaluated on the basis of the reasonableness of the request in light of such factors as the number of additional pages sought, the novelty and/or complexity of the issues in the case, the extent of the trial record, and any other relevant facts or circumstances that may serve to demonstrate why additional pages are necessary. [ Note 6.] Cf. TBMP § 541.02.

For information concerning the parts of a brief that fall within the page limit, see TBMP § 801.03.

For information concerning the page limits for briefs on motions, see TBMP § 502.02(b). The Board generally does not extend page limits for briefs on motions.

NOTES:

 1.   See First Niagara Insurance Brokers Inc. v. First Niagara Financial Group Inc., 77 USPQ2d 1334, 1336 n.4 (TTAB 2005), rev’d on other grounds,476 F.3d 867, 81 USPQ2d 1375 (Fed. Cir. 2007). Cf. Fleming v. County of Kane, 855 F.2d 496, 497 (7th Cir. 1988) (same concerns underlie appellate page limitations).

 2.   See 37 C.F.R. § 2.128(b). See, e.g., Boswell v. Mavety Media Group Ltd., 52 USPQ2d 1600, 1604 n.4 (TTAB 1999).

 3.   See United Foods Inc. v. United Air Lines Inc., 33 USPQ2d 1542, 1542 (TTAB 1994).

 4.   See United Foods Inc. v. United Air Lines Inc., 33 USPQ2d 1542, 1542-43 (TTAB 1994) (filing overlength brief with motion is potentially disadvantageous as movant may end up having to redo brief if motion is denied).

 5.   See United Foods Inc. v. United Air Lines Inc., 33 USPQ2d 1542, 1543 (TTAB 1994).

 6.   See United Foods Inc. v. United Air Lines Inc., 33 USPQ2d 1542, 1543 (TTAB 1994), (30-page reply brief unnecessary where main brief was 18 pages and responsive brief was 37 pages); and U.S. Navy v. United States Manufacturing Co., 2 USPQ2d 1254, 1255 (TTAB 1987) (due to size of record, parties allowed to file overlength briefs). Cf. 37 C.F.R. § 2.129(a).