Introduction

Litigation before the Trademark Trial and Appeal Board (TTAB) is different from federal court litigation in several critical ways. One of the most overlooked aspects is the authentication of documents for trial. Because the TTAB only decides issues related to the right to federal registration of a mark, and not broader infringement or unfair competition claims, the rules governing evidence are tailored to the Board’s limited jurisdiction. Still, improperly authenticated documents can jeopardize a case and potentially lead to dismissal of crucial claims. For practitioners, understanding the Board’s standards for authentication is essential for building a persuasive evidentiary record.

This article provides practical TTAB tips on authenticating documents during trial, avoiding common mistakes, and ensuring that evidence you worked hard to collect actually makes it into the record.

Why Authentication Matters at the TTAB

Authentication serves as the gateway to admissibility. Simply put, it means showing that a document is what it purports to be. At the TTAB, the importance of authentication is heightened because the Board operates with a written record rather than live witness testimony. Judges review transcripts, notices of reliance, and documentary evidence to evaluate the case. If a document is not properly authenticated, it may be excluded entirely, regardless of its relevance.

Consider the risks: a party may spend months in discovery obtaining key documents, only to see them struck from the record for failure to comply with authentication rules. This is not only a procedural setback but also a strategic one, as the loss of evidence may weaken arguments on likelihood of confusion, descriptiveness, or priority.

Understanding Acceptable Methods of Authentication

The TTAB provides several avenues for getting documents into the record. Unlike district courts, the Board has specific rules about when a document may be introduced through a notice of reliance versus when testimony is required.

For instance, documents produced by an adverse party in discovery may often be introduced during trial through a notice of reliance. Similarly, official records such as status and title copies of registrations from the USPTO database can be made part of the record without additional testimony. However, documents obtained from third parties or those not inherently self-authenticating typically require supporting testimony.

Another important rule is that exhibits attached to pleadings are not automatically evidence. A common mistake among less experienced practitioners is assuming that attaching documents to a notice of opposition or petition for cancellation places them into the record. The TTAB has made clear that unless a document is introduced through proper trial procedures, it will not be considered.

Strategic Use of Notices of Reliance

One of the most effective TTAB tips for authentication is to use notices of reliance correctly. This procedure allows parties to introduce certain categories of evidence without the need for live testimony. Examples include printed publications, official records, discovery responses, and admissions.

When using this method, practitioners must ensure that the document clearly falls within the categories recognized by the rules. For example, a printout from the USPTO’s electronic database showing the status and title of a registration is acceptable. But a social media screenshot may not qualify unless additional foundation is provided.

The notice itself must be precise. It should identify the documents, explain the basis for their admissibility, and make clear how they are relevant to the issues at hand. A vague or overly broad notice of reliance risks objection by the opposing party and potential exclusion of the evidence.

The Role of Testimony Depositions

When documents cannot be introduced through a notice of reliance, the safer course is to authenticate them through testimony. Testimony depositions provide an opportunity for a witness often a company officer or records custodian to establish the identity and reliability of the documents.

For example, if you want to submit internal marketing materials, sales invoices, or third-party correspondence, a witness must explain how the documents were created, maintained, and used in the ordinary course of business. Without this testimony, such documents may not be considered properly authenticated.

This approach can also be strategic. Testimony not only authenticates documents but also provides narrative context. A witness can explain how advertising was disseminated or how invoices demonstrate use of a mark in commerce, adding persuasive weight to otherwise dry exhibits.

Common Pitfalls in Authentication

Even seasoned practitioners occasionally stumble when authenticating documents at the TTAB. A frequent error is waiting too long to address evidentiary gaps. For example, serving discovery late in the period may prevent sufficient time to authenticate documents through follow-up requests or depositions.

Another pitfall is over-reliance on internet evidence. While the TTAB permits the introduction of internet materials through notices of reliance, the scope is not unlimited. Printouts must clearly show the URL and date of access, and they should be tied to the issues in dispute. A failure to connect the dots between the content and the claims in the proceeding can render the evidence ineffective.

Lastly, practitioners sometimes forget that stipulations can be powerful tools. Parties may agree to stipulate to the authenticity of certain documents, saving time and eliminating potential disputes. Without such stipulations, both sides may expend unnecessary resources contesting matters that could have been resolved by agreement.

Best Practices and TTAB Tips

To ensure smooth authentication of documents during trial, practitioners should plan early. As discovery opens, think about how you will introduce documents into the record months later. If testimony is required, schedule depositions well in advance to avoid last-minute complications.

Maintain a checklist of evidence categories and their permissible methods of introduction. For example, remember that USPTO records are admissible via notice of reliance, while third-party business records likely require testimony. This roadmap prevents surprises during trial and helps streamline your evidentiary presentation.

Another valuable TTAB tip is to review the Trademark Board Manual of Procedure (TBMP) regularly. The TBMP provides detailed guidance on what is considered admissible and how to introduce it. Staying current with Board precedent is also critical, as authentication standards continue to evolve, especially with the increasing use of digital evidence.

Conclusion

Authenticating documents before the Trademark Trial and Appeal Board may not be the most glamorous part of trademark litigation, but it is one of the most important. Without proper authentication, even the most compelling evidence may never reach the judges deciding your case. By planning ahead, using notices of reliance effectively, and leveraging testimony when needed, practitioners can safeguard their evidence and present a strong, well-documented record.

The difference between winning and losing at the TTAB often comes down to the details. With careful preparation and adherence to these TTAB tips, attorneys can ensure that their evidence stands on solid ground.