Why Interrogatory Counting Matters More Than It Seems

Discovery before the Trademark Trial and Appeal Board can become technical very quickly. One of the easiest places to make a procedural mistake is with interrogatories.

At first glance, the rule seems simple. A party serves written questions, the opposing party answers them under oath, and both sides use that information to prepare their cases. But TTAB discovery rules place limits on how many interrogatories can be served, and the real challenge is that a single numbered question can sometimes contain several separate inquiries.

That is where subparts become important.

For parties involved in a trademark opposition or cancellation proceeding, understanding how interrogatories are counted can prevent unnecessary objections, motion practice, and wasted time.

What Interrogatories Are Used For in TTAB Cases

Interrogatories are written discovery questions directed to another party. They are commonly used to obtain factual information that may not be available from public records.

A party may use interrogatories to learn when a mark was first adopted, who participated in choosing it, where the mark has been used, what products or services are sold under it, how the mark has been promoted, or which individuals have knowledge of relevant facts.

In a likelihood of confusion case, interrogatories may also seek information about customers, marketing channels, sales history, or the circumstances surrounding adoption of the disputed mark.

The value of interrogatories is not just in the answers themselves. They can also help identify documents, witnesses, and issues that require deeper examination later in discovery.

The 75 Interrogatory Limit

TTAB proceedings generally limit a party to 75 interrogatories, including subparts, unless the parties agree otherwise or the Board permits additional discovery.

That number may sound generous. In practice, however, it can be used up faster than expected.

A party may believe it has served only 30 or 40 interrogatories because that is how many numbered questions appear in the document. But if many of those questions contain several unrelated requests, the actual count may be much higher.

This is one reason TTAB interrogatory drafting should be deliberate. The numbering on the page does not necessarily control how the questions will be treated.

When One Question May Count as Several

The central issue is whether the subparts are logically related to the same subject or whether they introduce separate areas of inquiry.

For example, an interrogatory asking a party to identify the first date of use of a mark and the product on which that first use occurred may be viewed as closely connected. Both questions relate to the same factual event.

The analysis can change when a single interrogatory asks for the first date of use, annual sales figures, names of distributors, advertising expenditures, customer complaints, and details about trademark clearance efforts.

Those topics do not all serve the same narrow purpose. Even though they appear under one number, they may be treated as separate inquiries for counting purposes.

This distinction is where many TTAB discovery disputes begin.

Why Overloaded Interrogatories Can Create Problems

There is a temptation in litigation to make each discovery question do as much work as possible. That approach can backfire.

An interrogatory packed with multiple topics may draw an objection that the limit has been exceeded. It may also make the response difficult to interpret because the responding party may answer only some portions while objecting to others.

Overly complicated interrogatories can also make later motion practice more difficult. If a party files a motion to compel, the Board may need to sort through several different issues hidden inside one question.

Cleaner drafting often produces better information.

Instead of trying to combine unrelated subjects, a party may be better served by organizing interrogatories around specific themes such as priority, trademark use, advertising, sales, channels of trade, or identification of witnesses.

Counting Subparts Requires Substance, Not Just Form

The TTAB does not simply look at how the interrogatories are formatted.

Adding letters such as “a,” “b,” and “c” does not automatically mean each part counts separately. Likewise, removing those labels does not automatically make several independent questions count as one.

The substance of the request matters.

A useful way to think about this is to ask whether each part could stand alone as a meaningful interrogatory. If the answer is yes, the subpart may be more likely to be counted independently.

If the additional request merely seeks details necessary to complete the answer to the main question, it may be treated differently.

There is no drafting trick that reliably avoids the limit. The best protection is to make sure each interrogatory has a clear purpose and that related subparts truly belong together.

What Happens If a Party Exceeds the Limit

If the responding party believes more than 75 interrogatories have been served, it may object.

That can lead to disagreement over how the questions should be counted. If the parties cannot resolve the dispute, motion practice may follow.

At that point, time that could have been spent developing evidence becomes focused on procedural counting.

This is one of the less productive outcomes in TTAB discovery. It increases costs and can delay progress without moving the merits of the case forward.

For that reason, parties should assess the total count before serving interrogatories and avoid assuming that numbered questions will always be counted exactly as drafted.

Using Interrogatories With Other Discovery Tools

Interrogatories are important, but they are not designed to accomplish everything.

Requests for production are often better suited for obtaining contracts, invoices, marketing materials, emails, sales records, and other documents. Requests for admission can narrow issues by establishing facts that are not genuinely disputed. Depositions provide an opportunity to explore testimony in greater depth.

The strongest discovery strategy usually uses these tools together.

An interrogatory may identify the employee responsible for selecting a trademark. A document request may then seek communications involving that person. A deposition can later explore the reasoning behind the trademark selection process.

This coordinated approach is often more effective than trying to force every factual question into the interrogatory set.

Discovery Strategy Should Start With the Issues That Matter

The real purpose of TTAB discovery is not to generate the largest possible volume of information. It is to develop evidence that supports or defeats the claims in the proceeding.

That means discovery should be tied to the legal issues from the beginning.

If priority is disputed, questions should focus on first use, continuity of use, and supporting records. If likelihood of confusion is central, discovery may focus on customers, channels of trade, marketing practices, and the commercial context surrounding the marks.

Every interrogatory should ideally answer a strategic question.

What fact are we trying to establish? Who has that information? Will the answer lead to documents or testimony? Does this issue actually matter to the Board?

Those questions help prevent discovery from becoming mechanical or overly broad.

The Role of the TBMP in Interrogatory Practice

The Trademark Trial and Appeal Board Manual of Procedure provides important guidance on discovery practice, including interrogatories and discovery disputes.

It can help practitioners understand procedural expectations, but effective TTAB litigation still requires judgment.

Knowing the rule is only part of the process. The harder question is how to use that rule efficiently in a live dispute.

A well-drafted interrogatory set is usually focused, organized, and connected to the claims and defenses that will eventually be presented to the Board.

Final Thoughts: Better Questions Usually Produce Better Evidence

TTAB interrogatory limits may seem like a minor procedural issue, but they can affect the entire discovery process.

A party that overloads its interrogatories may trigger objections and lose valuable time. A party that drafts too narrowly may fail to obtain information it later needs.

The goal is balance.

Careful drafting, thoughtful use of subparts, and coordination with other discovery tools can make the process more efficient and help build a stronger record.

For businesses involved in a trademark opposition or cancellation proceeding, procedural discipline matters just as much as substantive trademark arguments. Understanding how TTAB discovery works can help protect valuable rights while keeping the case focused on the issues that actually matter.