707.03(b)(1)    On Ground of Untimeliness

A party may not take a testimony deposition, or execute or submit a testimony affidavit or declaration, outside of its assigned testimony period, except by stipulation of the parties approved by the Board, or on motion granted by the Board, or by order of the Board. [ Note 1.] See TBMP § 701.

When there is no such approved stipulation, granted motion or Board order, and a testimony deposition is taken or a testimony declaration or affidavit is executed or submitted after the close of the deposing or offering party’s testimony period, an adverse party may file a motion to strike the testimony, in its entirety, as untimely. See TBMP § 533.01. Alternatively, an adverse party may raise this ground for objection in its brief on the case or in an appendix or separate statement of objections attached to the brief. [ Note 2.] See TBMP § 801.03. Cf. TBMP § 707.02(b)(1).

On the other hand, when a testimony deposition is noticed for a date prior to the opening of the deposing party’s testimony period, or affidavit or declaration testimony is executed or submitted prior to the opening of the submitting party’s testimony period, an adverse party that fails to promptly object to the testimony on the ground of untimeliness may be found to have waived this ground for objection, because the premature scheduling or submission of testimony is an error which can be corrected on seasonable objection. [ Note 3.]

NOTES:

 1.   37 C.F.R. § 2.121(a). See MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES, 81 Fed. Reg. 69950, 69963 (October 7, 2016) ("The Office is amending § 2.121(a) to clarify that evidence must be presented during a party’s testimony period. … These amendments codify current Office practice."); 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); Hole In 1 Drinks, Inc. v. Lajtay, 2020 USPQ2d 71345, at *2 (TTAB 2020) ("a party may introduce testimony and evidence only during its assigned testimony period"); Wirecard AG v. Striatum Ventures B.V., 2020 USPQ2d 10086, at *2 n.3 (TTAB 2020) (parties stipulated that any declaration or affidavit shall be admissible even though executed before and not during the testimony period of a party). See also M/S R.M. Dhariwal (HUF) 100% EOU v. Zarda King Ltd., 2019 USPQ2d 149090, at *2 n.11 (TTAB 2019) (substitute testimony declaration was untimely filed outside of opposer’s testimony period); Robinson v. Hot Grabba Leaf, LLC, 2019 USPQ2d 149089, at *4 (TTAB 2019) (three year old declaration from application file was not of record as trial testimony as it was not executed (taken) during petitioner’s testimony period), cancellation order vacated on default judgment, No. 0:19-cv-61614-DPG (S.D. Fla. Dec. 17, 2019). Cf. International Dairy Foods Association v. Interprofession du Gruyère, 2020 USPQ2d 10892, at *3 n.12 (TTAB 2020) (declarations signed prior to testimony period considered because applicants did not object to them as untimely and treated them as part of the record), aff’d, ___ F. Supp. 3d ___, 2021 WL 6286234 (E.D. Va. Dec. 15, 2021), appeal docketed, No. 22-1041 (4th Cir. Jan. 11, 2022).

 2.   37 C.F.R. § 2.128(b). Effective January 14, 2017, 37 C.F.R. § 2.128(b) was amended to clarify and codify current practice that evidentiary objections may be set out in a separate appendix that does not count against the page limit for a brief. MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES, 81 Fed. Reg. 69950, 69967 (October 7, 2016).

 3.   See 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 because applicants did not object to them as untimely and 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); Of Counsel Inc. v. Strictly of Counsel Chartered, 21 USPQ2d 1555, 1556 n.2 (TTAB 1991) (objection to timeliness of testimony deposition taken two days before period opened, but raised for the first time in brief, waived).