Introduction: Why Testimony Declarations Can Make or Break a TTAB Case

In TTAB litigation, evidence is everything, but only if it is properly introduced. One of the most misunderstood areas of TTAB procedure involves the use of testimony declarations and the notice of reliance. Many parties assume that submitting a declaration alongside a notice of reliance is sufficient. In reality, the rules are far more precise, and missteps can result in critical evidence being excluded entirely.

The Trademark Trial and Appeal Board operates under strict procedural standards outlined in the TBMP. If testimony is not submitted in the correct manner, the Board will not consider it, regardless of how compelling it may be. This is why understanding the proper use of testimony declarations under notice of reliance is essential for any party involved in an opposition or cancellation.

Your brand is everything. Ensuring your evidence is properly before the Board is a fundamental step in protecting it.

Understanding the Difference Between Testimony and Notice of Reliance

To fully grasp the issue, it helps to understand the distinction between testimony and evidence submitted under notice of reliance. Testimony typically refers to statements provided by witnesses, either through deposition or declaration, during the assigned testimony period. A notice of reliance, on the other hand, is used to introduce certain types of evidence without live testimony.

The key point is that not all evidence can be submitted through a notice of reliance. The TTAB rules limit this method to specific categories, such as official records, printed publications, and discovery responses. Attempting to introduce testimony declarations through a notice of reliance often leads to procedural challenges.

Recent TTAB decisions make it clear that declarations intended to serve as testimony must comply with the rules governing testimony, not the rules governing notices of reliance.

When Testimony Declarations Are Properly Used

Testimony declarations are permitted in TTAB proceedings, but they must be submitted during the party’s testimony period and in accordance with the applicable rules. These declarations function as a substitute for oral testimony and are subject to cross examination by the opposing party.

To be valid, a testimony declaration must be properly executed, signed, and served on the opposing party. The opposing party must also be given the opportunity to cross examine the declarant. This procedural safeguard is critical and cannot be bypassed.

If a declaration is submitted outside the testimony period or without providing an opportunity for cross examination, the Board may strike it from the record. This is one of the most common and costly mistakes in TTAB litigation.

The Limited Role of Notice of Reliance

A notice of reliance serves a different purpose. It allows parties to introduce certain evidence without the need for testimony. This includes materials such as third party registrations, internet evidence, and responses to discovery requests.

However, the notice of reliance cannot be used as a shortcut to introduce testimony. Declarations that contain substantive statements about facts in dispute are considered testimony and must follow the rules for testimony submission.

The TTAB has repeatedly rejected attempts to blur this distinction. Parties who try to submit declarations under notice of reliance often find that their evidence is given no weight or excluded entirely.

Common Mistakes That Lead to Exclusion of Evidence

Many TTAB cases are affected by procedural errors related to testimony declarations. One frequent mistake is submitting a declaration as an exhibit to a notice of reliance without complying with testimony rules. Another is failing to provide the opposing party with the opportunity to cross examine the declarant.

Timing is another critical issue. Evidence must be introduced during the appropriate testimony period. Submitting declarations after the close of testimony, even if included in a brief, does not make them part of the record.

Formatting and execution errors can also create problems. Declarations must meet specific requirements, including proper signatures and statements made under penalty of perjury. Failure to comply can undermine the credibility and admissibility of the evidence.

Strategic Considerations for TTAB Practitioners

Understanding these procedural requirements is not just about avoiding mistakes. It is also about using the rules strategically. Properly submitted testimony declarations can be a powerful tool for presenting facts, establishing priority, and supporting legal arguments.

At the same time, identifying and challenging improperly submitted evidence can provide a significant advantage. Motions to strike and evidentiary objections can limit the opposing party’s ability to rely on flawed submissions.

The key is to approach TTAB litigation with a clear understanding of how evidence is introduced and evaluated. This allows parties to build a strong record while minimizing risk.

Why Procedural Precision Matters in TTAB Cases

The TTAB is an administrative body that relies entirely on the written record. There are no second chances to introduce evidence once the testimony period has closed. This makes procedural precision essential.

Even strong cases can fail if the evidence is not properly submitted. The Board does not consider intent or effort. It looks at compliance with the rules. This is why experienced guidance can make a meaningful difference in TTAB proceedings.

Your brand is worth everything. Protecting it requires more than good arguments. It requires disciplined execution of the procedural rules that govern trademark disputes.

Conclusion: Getting It Right the First Time

Submitting testimony declarations under notice of reliance is an area where many parties go wrong. The distinction between testimony and reliance evidence is clear in TTAB practice, and the consequences of confusion can be severe.

By understanding the procedural requirements and following them carefully, parties can ensure that their evidence is properly considered. This not only strengthens their case but also positions them for success at the final briefing stage.

If you are preparing for a TTAB proceeding or reviewing your litigation strategy, taking the time to get these details right can make all the difference. Let’s simplify this IP process together and ensure your evidence works for you, not against you.