Trademark Trial and Appeal Board proceedings often turn on evidence that goes beyond the four corners of an application or registration. While pleadings and procedural compliance matter, many cases are ultimately decided based on how persuasively the parties establish consumer perception and commercial intent. Two forms of evidence frequently discussed but often misunderstood are intent evidence and market surveys. When used correctly, both can strengthen a TTAB record. When mishandled, they can weaken credibility and distract from otherwise solid legal arguments. Understanding how the Board evaluates these materials under the Trademark Trial and Appeal Board Manual of Procedure is critical for any party engaged in an opposition or cancellation.

Understanding Intent Evidence in TTAB Proceedings

Intent evidence refers to materials that demonstrate a party’s bona fide intent to use a trademark in commerce or its intent regarding market positioning, branding strategy, or expansion. In TTAB practice, intent evidence most commonly arises in intent to use applications under Section 1(b) of the Lanham Act, particularly when an applicant’s bona fide intent is challenged.

The Board has consistently held that an applicant must have a real, present intention to use the mark in commerce at the time of filing. This intent does not require actual use, but it does require objective evidence that the applicant took concrete steps toward use. Business plans, product development documents, marketing proposals, correspondence with manufacturers, and internal strategy materials can all be relevant. The TBMP emphasizes that mere subjective testimony, without corroborating documentation, is often insufficient to establish bona fide intent when intent is squarely at issue.

Intent evidence also plays a role in likelihood of confusion cases. Documents showing how a party intended to market its goods or services, which trade channels it anticipated using, or which consumers it targeted can influence the Board’s analysis of relevant DuPont factors. Although the TTAB focuses primarily on the marks and the goods or services as identified in the pleadings, credible intent evidence can help contextualize how those identifications operate in the real world.

Evidentiary Standards Under the TBMP

The TBMP does not treat intent evidence as a separate evidentiary category, but it provides clear guidance on admissibility, authentication, and weight. Like all evidence submitted during trial, intent evidence must be properly introduced through testimony or notices of reliance where permitted. Documents that are not self authenticating typically require a witness with personal knowledge to establish foundation.

The Board also scrutinizes timing. Evidence created after a challenge has been raised may still be admissible, but it is often given less weight. Documents generated close to the filing date, particularly those created in the ordinary course of business, tend to be more persuasive. The TBMP repeatedly cautions that self serving documents created solely for litigation purposes are vulnerable to attack.

The Role of Market Surveys in TTAB Litigation

Market surveys are frequently cited as powerful tools for measuring consumer perception, especially in cases involving likelihood of confusion, descriptiveness, acquired distinctiveness, or fame. However, the TTAB does not automatically accept survey evidence at face value. Surveys are evaluated like expert testimony, with careful attention paid to methodology, relevance, and reliability.

A properly designed survey can help demonstrate how relevant consumers perceive a mark, whether they associate it with a particular source, or whether confusion is likely under marketplace conditions. That said, poorly designed surveys often do more harm than good. The Board is well versed in identifying leading questions, improper universes, flawed controls, and biased presentation.

TBMP Guidance on Survey Evidence

The TBMP makes clear that surveys must be introduced through testimony, typically via an expert witness who can explain the survey design and interpret the results. Raw survey data submitted without context or explanation is rarely persuasive. The opposing party is entitled to cross examine the expert and challenge both the methodology and conclusions.

One critical consideration under TTAB practice is relevance. The Board focuses on the perceptions of the relevant purchasing public for the goods or services at issue. Surveys that rely on an overly broad universe or that fail to replicate purchasing conditions are often discounted. The TBMP also reflects the Board’s preference for surveys that align closely with the identifications of goods and services rather than hypothetical marketplace scenarios that deviate from the pleadings.

Weight Versus Admissibility

An important distinction in TTAB proceedings is the difference between admissibility and probative value. Many surveys are admitted into evidence, but later given little weight in the final decision. The Board frequently notes that flaws in survey design generally affect weight rather than admissibility. This means that submitting a weak survey does not simply waste resources, it can actively undermine credibility.

Intent evidence is evaluated similarly. Documents that technically meet evidentiary standards may still be viewed skeptically if they lack specificity or appear inconsistent with other record evidence. The TBMP encourages parties to build cohesive narratives supported by multiple forms of corroboration rather than relying on a single category of proof.

Strategic Considerations for Practitioners

From a strategic standpoint, intent evidence and market surveys should be used selectively and deliberately. Not every TTAB case benefits from survey evidence, particularly where the record already strongly supports or undermines likelihood of confusion based on traditional factors. Surveys are expensive and time consuming, and a marginal survey rarely changes the outcome of a case.

Intent evidence, on the other hand, is often unavoidable in intent to use disputes. Applicants should assume that their intent will be scrutinized and should preserve contemporaneous documentation accordingly. Opposers challenging intent should focus on gaps, inconsistencies, and the absence of objective evidence rather than simply attacking credibility.

The TBMP repeatedly reinforces that the Board values clarity, consistency, and procedural compliance. Evidence that is well organized, properly introduced, and clearly tied to the relevant legal standards is far more effective than voluminous records lacking focus.

Final Thoughts on Building a Persuasive TTAB Record

Intent evidence and market surveys can be powerful tools in TTAB trial practice when used thoughtfully and in alignment with TBMP guidance. They are not substitutes for strong legal arguments or procedural precision, but they can meaningfully influence how the Board views consumer perception and commercial reality. For brand owners and practitioners alike, understanding how the TTAB evaluates these forms of evidence is essential to protecting valuable trademark rights.

Your brand is everything. Building a strong evidentiary record is not just about winning a case, it is about safeguarding the long term value of what you create. When intent and consumer perception matter, preparation and strategy make all the difference.