When it comes to litigation before the U.S. Trademark Trial and Appeal Board (TTAB), knowing the law is only half the battle. The other half—and often the deciding factor—is getting your evidence properly into the record. Whether you’re managing an ex parte appeal or representing a client in an opposition or cancellation, failing to follow the TTAB’s strict rules for submitting evidence can sink an otherwise strong case.

The TTAB is not a court of equity. It deals in precision, and that means the record—the evidence formally made part of the proceeding—is everything. Arguments not supported by record evidence are disregarded, no matter how compelling. Fortunately, the TTAB has issued recurring guidance and practical TTAB tips that highlight exactly what practitioners should (and should not) do to properly support their claims and defenses.

The Importance of Making Evidence of Record

The TTAB will only consider evidence that has been correctly introduced under its rules. Many new or infrequent TTAB practitioners mistakenly believe that attaching an exhibit to a brief is enough to “put it in the record.” But this is not the case. For evidence to be considered, it must be introduced during the correct phase of the proceeding—either during the prosecution of an application, during the assigned trial periods in an inter partes matter, or by proper filing and notice in an ex parte appeal.

The Board does not conduct independent fact-finding, and it cannot rely on information not formally in the record—even if it is accessible online or otherwise widely known. If you mention a prior registration, an online use, or a third-party mark, it must be properly documented and submitted under the TTAB’s evidentiary rules.

Third-Party Registrations and Applications: Common Pitfalls

Citing third-party registrations is a popular tactic to demonstrate dilution, descriptiveness, or weakness of a term. But many practitioners make the mistake of referencing these registrations in argument alone, without actually introducing them as evidence.

To properly submit third-party registrations, you must include a printout from the USPTO’s TESS or TSDR system that shows the full registration data, including the mark, goods/services, registration date, and status. Simply listing registration numbers or submitting a commercial trademark search summary is insufficient. Those summaries may be useful as internal tools, but they carry no evidentiary weight before the Board.

Applications for pending marks are even more limited in their usefulness. The TTAB has consistently held that third-party applications have no probative value since they only represent an intent to use, not a determination of registrability or actual market presence.

Internet Evidence: Date and URL Matter More Than You Think

Internet evidence is widely used in TTAB proceedings, particularly for proving fame, market context, or descriptive usage. However, not all internet printouts are treated equally. According to TTAB tips and recent precedents, a webpage must include both the date it was accessed and the URL in order to be considered admissible.

Hyperlinks alone do not suffice. You cannot expect the Board or your opponent to follow a link or visit an external website to verify your claims. If you’re using screenshots, they must show a clear date of capture and source. This is particularly critical for proving things like common law usage, industry terminology, or online product sales. Practitioners are advised to use the “print” function of their browsers with headers enabled to capture this required data.

Moreover, caching or archiving content is not enough unless it shows the date it was archived or accessed. Evidence without a source or timestamp is vulnerable to objection and may be stricken from the record.

Attachments to Briefs Are Not Evidence

Another major error that appears frequently in ex parte appeals is attaching new exhibits to the appeal brief. The TTAB will not consider new evidence submitted for the first time with a brief, whether it is in the form of exhibits, declarations, or references.

In an appeal of a refusal to register, all evidence must be submitted during the application examination phase—either during initial prosecution or, if allowed, during a request for reconsideration. Once the appeal has been filed, the record is closed. The only way to introduce new evidence at that point is to file a request for remand and demonstrate good cause.

This rule ensures the Examining Attorney has had a full opportunity to consider the applicant’s evidence. It also preserves fairness in the appeal process, preventing applicants from blindsiding the TTAB with unexamined documentation.

Submitting Evidence in Inter Partes Cases

In an inter partes proceeding such as an opposition or cancellation, each party has designated trial periods for presenting its case. Evidence must be submitted during the appropriate trial period unless both parties have stipulated otherwise. Common ways to submit evidence include notices of reliance, testimony depositions, and stipulations.

The notice of reliance is particularly useful for introducing documents like printed publications, third-party registrations, discovery responses, and official records. However, it must clearly state the relevance of the material and include the required identification and context. A vague or blanket notice without explanation may be challenged as insufficient.

Depositions require careful scheduling and notice. The TTAB does not accept informal interviews or unsworn statements. If testimony is submitted by declaration instead of oral examination, both parties must stipulate to that format or risk having the declaration excluded.

The Role of Stipulations

Stipulations can help simplify evidence and reduce procedural disputes. For example, parties can agree to the authenticity of certain documents or to accept internet printouts without formal objections. These stipulations are particularly encouraged in Accelerated Case Resolution (ACR) proceedings, where the TTAB expects parties to streamline evidentiary submissions and avoid unnecessary formalities.

Nonetheless, stipulations must be clear and filed in writing. The Board will not infer an agreement from silence or informal communications. If parties agree to treat certain materials as evidence, that agreement must be properly documented and entered into the record.

Practical Takeaways from TTAB Tips

These TTAB Tips make it clear that evidentiary missteps are among the most common—and most costly—errors seen by the Board. Whether due to unfamiliarity with procedure or a misunderstanding of what “counts” as evidence, these mistakes can derail a case that would otherwise succeed on the merits.

Practitioners should make use of the TBMP (Trademark Trial and Appeal Board Manual of Procedure), which contains detailed instructions and examples for proper evidence handling. Combining that knowledge with a thorough understanding of TTAB Tips ensures that your arguments are fully supported and that your client’s case is not lost on a technicality.

In the end, TTAB litigation is a paper-based process. The Board doesn’t guess, assume, or investigate—it reads. What’s in the record is what matters. Making sure your evidence gets there, and gets there properly, is the single most important step in building a successful case before the Trademark Trial and Appeal Board.