Can TTAB Deposition Testimony Be Corrected After the Deposition?

Depositions can move quickly. A witness may misunderstand a question, give an incomplete response, misstate a date, or discover after reviewing the transcript that the court reporter recorded a word incorrectly. In a Trademark Trial and Appeal Board proceeding, however, correcting deposition testimony is not as simple as rewriting an answer after the fact.

TTAB deposition testimony forms part of a litigation record that may ultimately be used to decide an opposition or cancellation proceeding. A correction that fixes an obvious transcription error is one thing. A change that materially alters what a witness said under oath raises very different concerns.

The distinction matters because an errata process is generally intended to ensure that a transcript accurately reflects the witness’s testimony. It should not be viewed as an opportunity to repair damaging testimony after counsel has had time to evaluate its consequences.

Understanding the difference between legitimate transcript corrections and substantive alterations can therefore become an important part of TTAB litigation strategy.

Why Accuracy Matters in TTAB Deposition Testimony

TTAB cases are largely decided on a written evidentiary record. Unlike the traditional courtroom experience many clients imagine, the Board generally does not resolve cases through a jury trial with witnesses appearing live before the judges.

Depositions can consequently carry considerable weight.

Testimony may concern priority, first use, sales history, advertising, consumer perception, channels of trade, trademark ownership, abandonment, or other facts central to the parties’ claims and defenses. Once testimony becomes part of the record, opposing counsel can compare it with documents, interrogatory responses, declarations, earlier statements, and other evidence.

A seemingly minor change to a deposition transcript can therefore affect more than one answer. It can influence how the Board views the consistency and credibility of a witness’s overall account.

What Is a Deposition Errata Sheet?

An errata sheet is generally used during the transcript review process to identify corrections to deposition testimony. A witness reviewing a transcript might notice that a person’s name was misspelled, a number was transcribed incorrectly, or the transcript contains another reporting error.

Those corrections are fundamentally different from discovering that an answer was strategically inconvenient.

Consider a witness who testified that a company began selling products under a trademark in 2021 when contemporaneous invoices demonstrate that the witness plainly meant 2011. That issue may warrant correction and explanation. By contrast, if the witness clearly testified that the company had no sales before 2021 and later attempts to change the answer to say that sales began in 2011, the alteration raises a much more significant question.

The wording of the change, the reason for it, and the surrounding evidence may all become important.

Clerical Corrections Versus Substantive Changes

The easiest transcript corrections are generally mechanical. Typographical mistakes, mistranscribed names, obvious spelling errors, and similar reporting problems ordinarily do not transform the substance of the testimony.

Substantive changes are different.

A substantive correction may alter a date, change a yes to a no, modify the description of a product, reverse a statement about trademark use, or otherwise affect an issue being litigated. Such changes deserve considerably more scrutiny because the original testimony was given under oath and subject to questioning by opposing counsel.

The procedural question is therefore not merely whether the witness wants to make a correction. The more important question is what the correction actually does to the testimony and why the change is being made.

Why Substantive Changes Can Create Credibility Problems

Suppose an opposer relies on a witness to establish trademark priority. During the deposition, the witness repeatedly states that commercial use began in 2019. After the deposition, the party discovers that establishing use in 2017 would substantially strengthen its priority argument. A subsequent attempt to replace 2019 with 2017 would naturally invite scrutiny.

Even when a procedural mechanism permits a witness to identify a change, that does not necessarily erase the significance of the original answer.

Opposing counsel may seek to rely on the original testimony, the correction, and the explanation for the change. The discrepancy itself may become relevant when the Board evaluates the evidence.

This is one reason TTAB deposition preparation should focus on accuracy rather than rehearsed perfection. A witness who does not remember a fact can say so. Attempting to provide a confident answer without a reliable basis may create a much larger problem when the record is reviewed later.

Corrections Do Not Necessarily Make the Original Testimony Disappear

A common misunderstanding about deposition errata is that changing an answer effectively replaces the original testimony as though it had never existed.

That assumption can be dangerous.

A material correction can create two pieces of information for the opposing party to examine: what the witness originally said and what the witness later wanted the testimony to say. Depending on the circumstances, the difference may become more damaging than the original answer itself.

This is particularly important when the disputed testimony concerns a central issue such as first use, ownership, continuity of use, intent, or the commercial strength of a mark.

The broader evidentiary record also matters. If invoices, archived webpages, advertisements, business records, and other testimony support the correction, an innocent mistake may be easier to explain. If the correction appears only after the original testimony creates a legal problem, the opposing party may characterize it very differently.

Preparing Witnesses Can Reduce Errata Problems

Good deposition preparation does not mean teaching witnesses what answers to give. It means helping them understand the process and identify areas where careful recollection is especially important.

Trademark disputes often involve events that occurred years earlier. Founders may be asked when a name was selected, when a website launched, when the first customer purchased a product, or when particular advertising appeared. Human memory is imperfect, particularly when witnesses are asked to reconstruct a business history spanning many years.

Reviewing legitimate business records before testimony can help a witness distinguish between what they actually remember and what documents establish.

That distinction can make TTAB deposition testimony considerably more reliable and reduce the need for significant corrections later.

What Should Attorneys Consider When Reviewing Proposed Corrections?

When a transcript is reviewed, counsel should consider whether a proposed change corrects the record or attempts to improve it.

That distinction sounds simple, but it can become difficult in practice. A witness may genuinely realize that an answer was wrong only after seeing the transcript. The underlying reason for the change then becomes important.

Counsel should also consider how the correction fits with the rest of the record. Changing one date may create inconsistencies with declarations, discovery responses, documents, or testimony from another witness. A correction intended to solve one evidentiary problem can unintentionally create several others.

The safest approach is therefore to treat substantive transcript changes as litigation decisions rather than routine administrative cleanup.

How Deposition Corrections Can Affect Final TTAB Briefing

By the time a TTAB proceeding reaches final briefing, testimony may be cited alongside documentary evidence to establish or challenge key facts.

If important deposition testimony was changed, the parties may disagree about what weight the Board should give the corrected answer. One side may argue that the correction simply clarifies an innocent mistake. The other may argue that the witness changed testimony after recognizing that the original answer damaged the case.

The strength of either argument will depend heavily on the surrounding record.

This illustrates a broader principle of TTAB practice. Evidence rarely exists in isolation. Credibility is often developed through consistency among testimony, documents, discovery responses, and actual marketplace evidence.

Protecting the Integrity of the TTAB Record

Correcting TTAB deposition testimony can be entirely appropriate when the transcript contains an error or a witness legitimately identifies a mistake. Problems arise when transcript review becomes an attempt to reconstruct testimony after its strategic significance becomes clear.

For businesses involved in trademark oppositions and cancellations, the best protection is careful preparation, accurate testimony, and disciplined review of the resulting transcript. Where a substantive correction is necessary, the nature of the change and the reason behind it should be evaluated carefully.

TTAB litigation can determine whether a business obtains or retains important federal trademark rights. At Cohn Legal, we help businesses navigate trademark disputes with an eye toward both the immediate procedural requirements and the larger evidentiary record. Your brand is worth protecting, and careful management of testimony is one part of building that protection.