Introduction: Why Trial Disclosures Matter More Than Most Parties Expect

Trial disclosures are one of the most underestimated phases of a Trademark Trial and Appeal Board proceeding. Many parties treat disclosures as a routine filing rather than a strategic checkpoint. That assumption often proves costly. Under the TBMP, trial disclosures determine who may testify, what subjects they may address, and how the evidentiary record is built. Failing to comply with disclosure requirements can quietly but decisively weaken a TTAB case before testimony even begins.

For brand owners and practitioners navigating oppositions and cancellations, trial disclosures serve as the bridge between discovery and trial testimony. When that bridge is poorly constructed, the Board may restrict testimony, exclude evidence, or draw negative inferences that affect the outcome of the case.

The Purpose of Trial Disclosures in TTAB Proceedings

TTAB proceedings are administrative in nature, but they still rely on structured trial phases. Trial disclosures exist to prevent surprise and promote fairness. They notify the opposing party of the identity of intended witnesses, the subjects of testimony, and the general scope of evidence that will be presented during the testimony period.

The Board expects disclosures to be meaningful. Vague disclosures that simply list a witness name without identifying the topics of testimony do not fulfill this purpose. Proper disclosures allow both sides to prepare objections, plan cross examination, and evaluate whether testimony will add probative value to the record.

TBMP Requirements for Trial Disclosures

The TBMP requires that trial disclosures be served before the opening of a party’s testimony period. These disclosures must identify each witness and describe the subjects on which the witness is expected to testify. For witnesses whose testimony will be submitted by affidavit or declaration, the disclosures must still provide sufficient detail to inform the opposing party of the anticipated testimony.

While the TBMP does not require exhaustive detail, it does require clarity. The Board has repeatedly held that disclosures should be specific enough to prevent ambush and procedural gamesmanship. Parties that fail to meet this standard risk sanctions that can significantly limit their ability to present evidence.

Consequences of Inadequate or Late Trial Disclosures

One of the most serious consequences of improper trial disclosures is the exclusion of testimony. If a witness is not properly disclosed, the Board may refuse to consider that witness’s testimony altogether. This can be devastating when the excluded testimony relates to key issues such as priority, likelihood of confusion, or acquired distinctiveness.

Late disclosures present similar risks. Serving disclosures after the deadline, even by a short margin, may result in objections that the Board is inclined to sustain. The TTAB places a high value on procedural compliance, particularly when deadlines are clearly set in the scheduling order.

Limits on Testimony Scope Based on Disclosures

Even when a witness is permitted to testify, inadequate disclosures can narrow the scope of allowable testimony. The Board may limit testimony to the subjects explicitly identified in the disclosures. Any attempt to introduce new topics during the testimony period can draw objections that are often sustained.

This limitation affects not only live testimony but also declarations and affidavits. If the testimony exceeds the disclosed scope, the opposing party may move to strike portions of the submission. Once stricken, that evidence cannot be relied upon in final briefing.

Impact on Evidentiary Weight and Credibility

Procedural errors related to trial disclosures can also affect how the Board views a party’s credibility. Even when testimony is technically admitted, the Board may give it reduced weight if it appears that disclosure deficiencies hindered the opposing party’s ability to prepare.

TTAB judges are highly attuned to fairness and procedural balance. Parties that disregard disclosure obligations may be viewed as careless or overly aggressive, which can subtly influence how the Board evaluates close evidentiary questions.

Strategic Implications for Plaintiffs and Defendants

For plaintiffs, trial disclosures are an opportunity to reinforce the narrative of the case. Clear disclosures signal confidence in the evidentiary record and demonstrate respect for Board procedures. Poor disclosures, by contrast, can undermine the plaintiff’s burden of proof and create unnecessary procedural disputes.

Defendants should scrutinize opposing disclosures carefully. Identifying deficiencies early allows for timely objections and motions that can restrict or exclude damaging testimony. In many cases, disclosure disputes shape the trial record more than the testimony itself.

Common Disclosure Mistakes in TTAB Practice

One frequent mistake is over reliance on generic descriptions such as stating that a witness will testify on all issues relevant to the case. The Board has consistently found such language insufficient. Another common error is failing to update disclosures when trial strategy evolves. If new topics emerge, disclosures should be amended promptly to avoid surprise.

Parties also sometimes overlook the importance of aligning disclosures with pleadings. Testimony that strays beyond the pleaded claims or defenses is vulnerable to exclusion, regardless of how well it is disclosed.

How Proper Planning Prevents Disclosure Problems

Effective trial disclosures begin long before the disclosure deadline. Building the evidentiary record with final testimony in mind helps ensure that witnesses are properly identified and topics are clearly defined. This planning reduces the risk of last minute scrambling that often leads to disclosure errors.

Your brand is everything, and TTAB litigation often determines the future scope of brand protection. Treating trial disclosures as a strategic milestone rather than a procedural chore can preserve evidentiary flexibility and strengthen final briefing.

When to Seek Guidance from Experienced TTAB Counsel

Trial disclosure rules appear straightforward, but their consequences are anything but simple. An experienced trademark attorney understands how the Board applies TBMP standards in practice and how disclosure strategy fits into the larger litigation framework.

If your TTAB case is approaching the trial phase, careful attention to disclosures can protect months of discovery work and prevent avoidable setbacks. Consider us your legal consigliere as you navigate this critical stage of the process.

Conclusion: Trial Disclosures as a Gatekeeper to the Record

Trial disclosures are the gatekeepers of TTAB trial testimony. Under the TBMP, failure to comply with disclosure requirements can limit testimony, weaken credibility, and ultimately affect the outcome of the case. Parties that approach disclosures thoughtfully and strategically place themselves in the strongest position for success.

Let’s simplify this IP process together and make sure your TTAB case is built on a solid procedural foundation.