Practicing before the Trademark Trial and Appeal Board (TTAB) requires not only a command of trademark law, but a razor-sharp understanding of how to submit evidence effectively. The rules governing what constitutes proper evidence before the Board are clear—but often misunderstood. In fact, many cases are weakened or lost not because of the legal arguments, but due to procedural missteps in the evidentiary record.

Whether you’re filing an ex parte appeal or defending a mark in an opposition, mastering the rules of TTAB evidence is critical. Below, we’ll explore the nuances of what the TTAB accepts, what it routinely rejects, and what every practitioner should know to build a strong, admissible record.

The Board Doesn’t Take Judicial Notice of Its Own Records

One of the more surprising TTAB tips involves the Board’s strict position on judicial notice. Unlike a typical court, the TTAB does not automatically consider USPTO records to be part of the case file. If you reference a cited registration or rely on third-party registrations to support your argument, you must make those records part of the file. The Trademark Trial and Appeal Board will not dig into TESS or TSDR databases on your behalf.

If you want the Board to consider a third-party registration, you need to submit a proper copy—ideally a printout from TESS or TSDR. Simply listing a number or pasting a chart of similar registrations is not enough. Even official-looking commercial search reports are inadmissible unless accompanied by the correct documentation from USPTO sources.

This evidentiary formality applies even to cited registrations. If the mark you’re responding to has been refused under Section 2(d), you must independently introduce the registration into the appeal record.

URLs and Dates: The Gatekeepers of Internet Evidence

Internet-based evidence is a valuable tool in TTAB proceedings, particularly when arguing descriptiveness, consumer perception, or market context. However, it’s only valuable if submitted correctly.

When introducing web-based evidence, you must include two essential elements: the URL and the date of access or printing. Without both, your evidence may be considered inadmissible. This rule applies regardless of whether the material was submitted by the applicant or the Examining Attorney.

The TTAB also cautions against relying on links alone. Citing a website without capturing a PDF or printout of the relevant page renders the reference meaningless. The Board cannot—and will not—click through a hyperlink to investigate your claims. Moreover, evidence from cached versions of websites may raise questions about authenticity and reliability.

In short, if you intend to use a webpage to demonstrate public perception, third-party usage, or industry language, you must package the evidence with precision. Anything less risks being tossed out.

Third-Party Registrations: Use With Caution

A common mistake in TTAB practice is over-relying on third-party registrations to argue that a mark is weak or diluted. While these registrations can help show that certain terms are commonly used or descriptive, their evidentiary value in a likelihood of confusion analysis is limited.

Third-party registrations are not proof of actual use in commerce. They do not establish market presence, consumer recognition, or sales volume. Instead, they may suggest that a term or design element is so frequently registered that consumers are conditioned to look at other components for source identification.

However, this point must be argued carefully and supported with evidence beyond just a long list of registrations. Whenever possible, corroborate with marketplace evidence or examples of concurrent use. And remember, expired or canceled registrations have even less probative value—they show only that the mark was once registered, not that it is currently used or relevant.

Avoid Attaching Evidence to Briefs

Another common pitfall occurs during briefing. The TTAB’s procedures make it clear that evidence must be made part of the record during the appropriate stage—well before the appeal brief is filed. Including evidence as an exhibit to your brief, even if it was previously submitted, is improper.

The TTAB wants citations in briefs to refer back to the application record or TTABVUE file, not re-packaged attachments. Adding evidence at the briefing stage can result in it being disregarded entirely. Worse, if it’s the only form in which the evidence appears, it could jeopardize your entire argument.

If you realize that a critical piece of evidence was not introduced before filing the appeal, the proper procedure is to request a remand. The Board may then allow you to supplement the record, giving the Examining Attorney a chance to respond. But if the appeal is already decided, your window closes permanently—except for limited post-decision amendments like disclaimers.

Don’t Count on Informality—The TTAB Holds the Line

One of the clearest TTAB tips is this: the Board is unforgiving when it comes to procedural requirements. It’s not that the Board is harsh—it’s that its processes are designed to ensure fairness and consistency. That means every party must meet the same evidentiary standards, regardless of good intentions or practical shortcuts.

Even informal references to the record can fall short. For example, citing “a previously submitted Office Action” without pointing to the exact date, page number, and location within TTABVUE or TSDR may result in the evidence being overlooked. Vague references don’t help the Board—and they won’t help your case.

Likewise, attaching evidence to a motion or reply brief after the designated deadline will almost always be deemed untimely. Evidence must be introduced before the appeal or trial stage unless very specific procedural remedies are requested and granted.

Strategic Submission is Key

Winning before the Trademark Trial and Appeal Board is often about more than crafting persuasive arguments. It’s about knowing what the Board can consider—and making sure your evidence is both powerful and properly submitted.

Think of evidence as the foundation of your case. No matter how compelling your logic, if the Board can’t legally consider your supporting documentation, your argument collapses. Whether you’re appealing a refusal, opposing a registration, or defending a mark, the key lies in proactive, strategic evidence planning.

Use TTABVUE and ESTTA to their full advantage. Understand when to file, how to label, and where to point the Board when citing material. By doing so, you ensure that your strongest points don’t just sound good—they hold up on the record.

Final Thoughts

The Trademark Trial and Appeal Board has provided clear and consistent guidance on evidentiary practices. From requiring URLs and dates on web submissions to rejecting improperly introduced third-party registrations, the TTAB expects precision from all parties. The difference between winning and losing can often come down to the technical compliance of your filings.

By mastering the rules of evidence—and following TTAB tips meticulously—you can give your client the best possible chance at success. In the TTAB’s courtroom, clarity, compliance, and completeness aren’t just professional— they’re powerful.