Winning a case before the Trademark Trial and Appeal Board (TTAB) is not just about drafting a solid complaint. It’s about knowing how to follow through with the right evidence at the right time. The TTAB routinely sees cases that appear viable on paper but ultimately collapse because parties fail to support their claims with admissible, timely, and persuasive proof.

Whether you’re opposing a trademark application or seeking to cancel a registration, it’s critical to understand that pleading a claim correctly is only half the battle. The other half—the one that actually wins the case—is proving that claim during trial. These TTAB Tips bulletin underscores this divide and offers guidance that every practitioner should take to heart.

Pleading vs. Proving: The Legal Thresholds Are Different

The TTAB follows a two-stage litigation structure: the first is the pleading phase, where you assert your legal claims; the second is the trial phase, where you have to back up those claims with admissible evidence. During the pleading stage, the standard is relatively low. A notice of opposition or petition to cancel must simply provide enough factual allegations to state a plausible claim for relief. This means you don’t need to prove anything at the outset—just allege the necessary elements clearly.

But once you enter the trial phase, the standard changes dramatically. The Board is no longer reviewing your claims in the abstract; it’s evaluating whether your evidence meets the burden of proof. Many practitioners, especially newer ones, underestimate this shift and assume that if a claim survived a motion to dismiss or was accepted by the Board, it’s on solid ground. This assumption can be dangerous.

Common Claims That Fall Apart Without Evidence

Among the most common and preventable missteps in TTAB litigation is asserting claims like likelihood of confusion, nonuse, or abandonment—and failing to follow through with the type and quantity of evidence the Board requires to sustain them.

In likelihood of confusion cases, it’s not enough to cite similarity between marks. If you are the opposer, you must prove that you have prior rights, typically by submitting a registration or evidence of common law use. For abandonment claims, you’ll need to show at least three consecutive years of nonuse and that the registrant had no intent to resume use. These are specific factual showings—not mere conclusions.

Fraud claims are another common trap. Parties may allege that an applicant knowingly submitted false information to the USPTO, but without clear and convincing evidence of intent to deceive, these claims almost always fail. The Board has repeatedly emphasized that fraud must be pled with particularity and proved with precision. Vague accusations or unsupported theories simply won’t hold.

The Evidence Must Be Properly Submitted

One of the most crucial pieces of advice from the TTAB Tips is that evidence must be made of record—not merely attached to a brief or referenced in passing. Submitting evidence improperly is a silent killer of TTAB claims. This includes things like third-party registrations, internet screenshots, declarations, and assignment records. If they are not submitted in accordance with the rules—such as through notice of reliance, deposition testimony, or stipulated agreements—they may be excluded, even if they were discussed extensively in your brief.

For example, you cannot introduce new exhibits in your trial brief and expect the Board to consider them. The trial brief is not the place to sneak in evidence—it is the place to discuss and argue from the evidence already made of record. The TTAB is strict about this, and it’s one of the most common procedural slip-ups.

Another recurring issue is failing to authenticate or date-stamp internet evidence. A simple URL and date are usually required to make web-based exhibits admissible. Without this, even relevant screenshots may be disregarded. Similarly, citing to third-party registrations without including the full TSDR or TESS printouts renders the citations meaningless. Lists or summaries from commercial search services like SAEGIS are also not accepted.

Strategic Timing Matters

Even if your evidence is strong, it must be timely. Submitting documents after the close of trial, failing to disclose evidence during discovery, or missing the window for expert disclosures can have fatal consequences. The TTAB has little tolerance for late filings unless excusable neglect can be shown—and even then, the standard is difficult to meet.

Practitioners should take advantage of the structured case calendar that the TTAB provides in its scheduling orders. These deadlines are not suggestions; they are fixed benchmarks. Unlike in federal court, you cannot simply request a continuance by consent. All motions to extend must demonstrate good cause and be filed in advance. Waiting until the last minute to gather evidence often backfires.

How to Bridge the Gap Between Pleading and Proof

To avoid the gap between what you allege and what you can prove, plan your evidence strategy as early as possible—ideally during the initial discovery conference. If you’re asserting abandonment, begin collecting marketplace data and investigating current use as soon as the claim is filed. For priority and likelihood of confusion, prepare to submit certified copies of your client’s registrations and declarations of use. In cases involving common law rights, organize sales records, advertising, and witness declarations to establish first use dates and geographic reach.

It’s also wise to consider stipulations or Accelerated Case Resolution (ACR) if both parties agree on certain factual elements. As the TTAB Tips point out, the Board welcomes procedural agreements that streamline the record and help avoid unnecessary formalities. ACR can be especially useful in cases where the facts are largely documentary and not credibility-based.

The Bottom Line

Litigating before the Trademark Trial and Appeal Board requires more than well-drafted pleadings. It demands a disciplined, evidence-driven approach to proving your claims. Many TTAB cases are lost not because the legal theory was flawed, but because the party failed to submit the right evidence in the right format at the right time.

If there’s one takeaway from the TTAB Tips, it’s this: don’t wait until trial briefing to think about your record. Build it deliberately, step by step, from day one. A strong pleading might start the case, but only strong proof will win it.