Trademark Trial and Appeal Board litigation is procedural by nature, and nowhere is that more apparent than in the handling of evidence. Unlike federal court, the TTAB operates under a unique hybrid system that blends elements of the Federal Rules of Civil Procedure with Board specific requirements set out in the Trademark Trial and Appeal Board Manual of Procedure. Among the most misunderstood and frequently mishandled aspects of TTAB practice are evidentiary objections. TBMP Section 707 governs how objections must be raised, preserved, and resolved, and failure to follow these rules can quietly undermine an otherwise strong case.

For brand owners and practitioners alike, understanding evidentiary objections is not about procedural formality alone. It is about shaping the evidentiary record the Board will rely on when issuing its final decision. In TTAB proceedings, the record is everything.

Understanding the Role of Evidence at the TTAB

The TTAB does not hear live testimony or conduct trials in the traditional sense. Instead, evidence is submitted through testimony declarations, notices of reliance, and accompanying exhibits. This makes the evidentiary record entirely paper based, which elevates the importance of proper objections. Once the record closes, the Board decides the case strictly on what is properly of record.

This structure creates both opportunity and risk. On one hand, parties can strategically shape the record by challenging defective submissions. On the other hand, parties who fail to object in a timely and proper manner may unintentionally concede the admissibility of flawed evidence. TBMP 707 exists to ensure that objections are raised efficiently without turning TTAB litigation into a procedural battleground.

TBMP 707 and the Framework for Evidentiary Objections

TBMP 707 sets out the general rule that evidentiary objections must be raised promptly and in the correct manner, depending on the type of evidence at issue. The Board strongly disfavors piecemeal objections and expects parties to address evidentiary issues in an organized and procedurally sound way.

A key principle under TBMP 707 is the distinction between objections to the form of evidence and objections to its substantive admissibility. Objections to form include issues such as lack of foundation, improper authentication, or defective notices of reliance. These objections generally must be raised promptly, often during the testimony period or shortly thereafter, or they are deemed waived.

Substantive objections, such as relevance or hearsay, are treated differently. The Board has made clear that it can consider relevance and probative value even if no objection is raised, though relying on the Board to do so is rarely a sound strategy.

Timing Matters and Waiver Is Real

One of the most critical lessons from TBMP 707 is that timing controls everything. The TTAB expects objections to be raised either during the testimony period when the evidence is introduced or through a motion to strike filed promptly after the close of the relevant testimony period. Waiting until the briefing stage to raise objections is almost always too late.

Waiver is not a theoretical risk. It is a frequent outcome in TTAB decisions. Parties often assume that improperly submitted evidence will simply be ignored by the Board, only to discover that their failure to object resulted in the evidence being fully considered. TBMP 707 emphasizes that the burden is on the opposing party to police the evidentiary record.

Motions to Strike and Strategic Considerations

Motions to strike are the primary procedural vehicle for raising evidentiary objections under TBMP 707. However, the Board has repeatedly cautioned against overuse. Motions to strike that lack specificity or are filed solely for tactical delay are routinely denied.

Strategic objections focus on evidence that materially affects key issues such as likelihood of confusion, priority, or acquired distinctiveness. For example, challenging unauthenticated website printouts or improperly submitted third party registrations can meaningfully weaken an opponent’s case. Conversely, objecting to marginal evidence that does not move the needle may irritate the Board and dilute stronger arguments.

The Board’s Preference for Substance Over Formality

While TBMP 707 provides clear procedural rules, the TTAB has consistently stated that it prefers to decide cases on the merits rather than technicalities. This does not mean evidentiary rules are optional. It means that the Board will often weigh probative value even when technical defects exist, especially where the opposing party had notice and an opportunity to respond.

This balancing act underscores why evidentiary objections should be thoughtful rather than reflexive. The most effective TTAB practitioners use objections to clarify the record, not clutter it.

Common Evidentiary Pitfalls in TTAB Litigation

Certain evidentiary mistakes recur in TTAB proceedings. Parties frequently submit documents without proper notices of reliance, fail to authenticate internet evidence, or attach exhibits that exceed the scope of testimony. TBMP 707 addresses these issues directly, yet they remain common sources of dispute.

Another frequent error involves objections raised only in briefing. The Board has made clear that evidentiary objections embedded in briefs, without prior motions or timely objections, are generally ineffective. By the time briefing begins, the evidentiary record is largely locked in.

How Evidentiary Objections Influence Final Decisions

Although the TTAB may consider some improperly submitted evidence, well raised objections can still influence how much weight the Board assigns to that evidence. Evidence that survives only because no objection was raised may be given limited probative value. Conversely, evidence that is properly submitted and unchallenged often becomes central to the Board’s analysis.

In close cases, these distinctions matter. Likelihood of confusion determinations, in particular, often turn on the strength and credibility of the evidentiary record. TBMP 707 gives practitioners the tools to shape that record effectively, but only if those tools are used correctly.

Why Working with Experienced TTAB Counsel Matters

Evidentiary objections are not an isolated procedural step. They are part of a broader litigation strategy that requires familiarity with TTAB norms, Board preferences, and evolving case law. Knowing when to object, when to let an issue go, and how to preserve arguments for appeal can make a meaningful difference in outcome.

Your brand is everything. TTAB proceedings place that brand squarely under a procedural microscope. Having experienced trademark counsel who understands TBMP 707 and TTAB evidentiary practice helps ensure that your case is decided on a clean, well supported record rather than avoidable procedural missteps.

If you are involved in a trademark opposition or cancellation and want guidance on evidentiary strategy, consider speaking with a trademark attorney who regularly practices before the TTAB. A clear plan at the evidence stage often determines success long before final briefing begins.