710.01(c)    Record Must Be Complete Prior to Appeal

The record in any application should be complete prior to appeal.  37 C.F.R. §2.142(d); TMEP §1501.02(b); see In re ADCO Indus.-Techs., L.P., 2020 USPQ2d 53786, at *2 (TTAB 2020).  Accordingly, if an examining attorney or applicant attempts to introduce new evidence at the time of the appeal, the new evidence will generally be excluded from the record.  TBMP §1207.01; see, e.g., In re tapio GmbH, 2020 USPQ2d 11387, at *3-4 (TTAB 2020); In re Medline Indus., Inc., 2020 USPQ2d 10237, at *2 (TTAB 2020). However, the Trademark Trial and Appeal Board may consider evidence submitted after appeal, despite its untimeliness, if the non-offering party:  (1) does not object to the evidence; and (2) discusses the evidence or otherwise treats it as being of record.   See TBMP §1207.03  and cases cited therein.  Therefore, examining attorneys and applicants should, as appropriate: (a) object to the new evidence but not substantively discuss it; (b) object to the new evidence and, while preserving the objection, discuss why it in any event does not support the offeror’s position; or (c) consider the new evidence.

Whenever an examining attorney objects to evidence submitted by an applicant, the objection should be raised as soon as possible and continued in the examining attorney’s brief, or the Board may consider the objection to be waived.   See In re City of Hous., 101 USPQ2d 1534, 1536 (TTAB (2012) (citing In re Broyhill Furniture Indus., Inc., 60 USPQ2d 1511, 1513 n.3 (TTAB 2001)), aff’d, 731 F.3d 1326, 108 USPQ2d 1226 (Fed. Cir. 2013) .

If the applicant or examining attorney wishes to introduce new evidence at the time of or during appeal, the party seeking to introduce the new evidence may request the Board to suspend the appeal and remand the case.  37 C.F.R. §2.142(d). See TBMP §1207.02 and TMEP §1504.05 regarding requests for remand.

The Board may take judicial notice of dictionary definitions, including "online dictionaries that exist in printed format or regular fixed editions," which were not made of record prior to appeal, and may do so either sua sponte or upon request of the applicant or examining attorney. Pierce-Arrow Soc’y v. Spintek Filtration, Inc., 2019 USPQ2d 471774, at *4 n.23 (TTAB 2019) (citing Univ. of Notre Dame du Lac v. J.C. Goumet Food Imp. Co., 213 USPQ 594, 596 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983); In re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006)); See TBMP §1208.04.   However, the better practice is to ensure that the relevant material is included in the record prior to appeal.  When requesting that the Board take judicial notice of a dictionary definition, the examining attorney must provide sufficient information regarding the source of the definition (e.g., a copy of the title page of the dictionary).   See In re Gregory, 70 USPQ2d 1792, 1793 (TTAB 2004) (declining to take judicial notice of dictionary definitions submitted with examining attorney’s appeal brief, because neither the photocopied pages nor the examining attorney’s brief specified the dictionaries from which the copies were made); TBMP §1208.04.

The Board will generally not take judicial notice of online dictionaries not available in a printed format unless the online dictionary is the equivalent of a print reference work, has regular fixed editions, or is otherwise readily available and verifiable. TBMP §1208.04; see In re Jimmy Moore LLC, 119 USPQ2d 1764, 1768 (TTAB2016) (taking judicial notice of definitions from an online dictionary that was also available in printed form, but refusing to take judicial notice of definitions from commercial websites, Wikipedia, and other unidentified online sources); In re Red Bull GmbH, 78 USPQ2d at 1378 (taking judicial notice of an Encarta Dictionary definition, because the dictionary was a widely known reference, readily available in specifically denoted editions via the Internet and CD-ROM and thus was "the electronic equivalent of a print publication," which could be easily verified; refusing to take judicial notice of a definition from www.wordsmyth.net, because the source of the definition was not identified on the submitted website excerpt or by the examining attorney and thus could not be verified);   In re CyberFinancial.Net, Inc., 65 USPQ2d 1789, 1791 n.3 (TTAB2002) (taking judicial notice of online dictionary that was also available in printed form); In re Total Quality Grp., Inc., 51 USPQ2d 1474, 1476 (TTAB 1999) (declining to take judicial notice of online dictionary that did not exist in printed format, because the source was unknown and the Board was unsure whether the dictionary was readily available or reliable, stating that the evidence should have been made of record prior to appeal, so applicant would have the opportunity to check the reliability of the evidence and offer rebuttal evidence).