Introduction to Trial Testimony in TTAB Practice

Trial testimony is one of the most critical phases of a Trademark Trial and Appeal Board proceeding. While TTAB cases are administrative in nature and decided on a written record, testimony serves as the backbone of that record. The Trademark Trial and Appeal Board Manual of Procedure, commonly known as the TBMP, devotes Chapter 700 entirely to trial testimony, reflecting its importance in oppositions, cancellations, and other inter partes proceedings. Understanding how testimony must be structured, submitted, and preserved is essential for any party seeking a favorable outcome before the Board.

Unlike federal court litigation, TTAB trial testimony does not involve live witnesses appearing before a judge or jury. Instead, testimony is submitted during designated testimony periods and must strictly comply with TBMP rules. Procedural missteps at this stage often result in excluded evidence, waived arguments, or weakened credibility, all of which can undermine an otherwise strong trademark case.

Overview of Testimony Periods Under TBMP 700

The TTAB trial phase is divided into three sequential testimony periods. The plaintiff opens with its testimony period, followed by the defendant’s testimony period, and concluding with the plaintiff’s rebuttal testimony period. Each period is time-limited, typically lasting thirty days, and the Board’s scheduling order strictly controls these deadlines.

TBMP 700 emphasizes that testimony must be introduced only during the assigned period. Evidence submitted outside the proper window, even if relevant and persuasive, may be stricken or given no consideration. For practitioners and brand owners alike, this reinforces the importance of early preparation and careful calendaring. Waiting until the last days of a testimony period often leads to rushed filings and avoidable errors.

Acceptable Forms of Trial Testimony

Under TBMP 703, testimony may be submitted in several approved formats. These include oral depositions taken upon notice, depositions upon written questions, and testimonial affidavits or declarations where permitted. Each format carries its own procedural requirements, and selecting the appropriate method often depends on cost considerations, witness availability, and the complexity of the evidence being presented.

Oral depositions remain common in TTAB proceedings involving complex factual disputes or credibility issues. However, affidavits and declarations are increasingly favored in streamlined cases due to their efficiency. TBMP 700 makes clear that regardless of format, testimony must be properly introduced into the record with all referenced exhibits clearly identified and authenticated.

The Role of Notices of Reliance and Testimony Exhibits

One frequent source of confusion in TTAB practice involves the distinction between trial testimony and notices of reliance. TBMP 704 explains that certain categories of evidence, such as USPTO records, printed publications, and discovery responses, may be introduced through notices of reliance without accompanying testimony. However, many other types of evidence require testimonial context to be admissible.

When testimony relies on exhibits, those exhibits must be introduced during the testimony period and properly labeled. Failure to do so may result in the Board disregarding the material entirely. TBMP 700 underscores that testimony cannot be used as a workaround to introduce inadmissible evidence, nor can exhibits stand on their own without proper procedural support.

Structuring Testimony for Maximum Persuasive Impact

Effective TTAB trial testimony is not merely about compliance. It is also about clarity and persuasion. Well-structured testimony tells a cohesive story that aligns with the pleaded claims and defenses. Each witness should serve a defined purpose, whether establishing priority, demonstrating likelihood of confusion, supporting acquired distinctiveness, or rebutting an opposing argument.

TBMP guidance encourages practitioners to avoid overly broad or unfocused testimony. The Board gives greater weight to testimony that is concise, relevant, and supported by documentary evidence. Disorganized testimony often signals weak preparation and can dilute otherwise compelling legal arguments.

Common Procedural Pitfalls in TTAB Trial Testimony

TBMP 700 highlights several recurring errors that frequently jeopardize testimony submissions. These include improper witness identification, failure to authenticate exhibits, untimely service of testimony transcripts, and incomplete notices of deposition. Another common mistake is attempting to introduce new claims or theories through testimony that were not pleaded in the initial filings.

The TTAB is strict in enforcing procedural rules, even for pro se parties. While the Board aims to resolve disputes on their merits, it will not overlook fundamental violations of testimony requirements. This makes careful adherence to TBMP standards not just advisable, but essential.

Rebuttal Testimony and Strategic Limitations

Rebuttal testimony, governed by TBMP 707, serves a narrow purpose. It is limited to responding to issues raised during the defendant’s testimony period and cannot be used to introduce evidence that should have been presented in the plaintiff’s case in chief. Attempting to expand the scope of rebuttal testimony often results in objections and exclusion.

Strategically, rebuttal testimony should be targeted and precise. Effective rebuttal strengthens the record without reopening settled issues or creating procedural vulnerabilities. TBMP 700 reinforces that restraint at this stage often enhances credibility before the Board.

Why Trial Testimony Structure Can Decide a TTAB Case

In TTAB proceedings, the evidentiary record is everything. There are no live arguments, no jury impressions, and no second chances to introduce missed evidence. Trial testimony is the vehicle through which facts become part of the official record. Poorly structured testimony weakens the entire case, while well executed testimony can clarify complex issues and tip close decisions in a party’s favor.

For brand owners, this underscores the value of working with experienced trademark counsel who understand not only substantive trademark law, but also the procedural mechanics that govern TTAB litigation. Your brand is everything, and protecting it requires precision at every stage of the process.

Final Thoughts on Navigating TBMP 700 Successfully

Trial testimony under TBMP 700 is both technical and strategic. Success depends on understanding testimony periods, selecting the proper format, structuring witness evidence thoughtfully, and avoiding common procedural traps. When handled correctly, trial testimony becomes a powerful advocacy tool that reinforces legal arguments and strengthens brand protection outcomes.

If you are facing a TTAB opposition or cancellation, consider speaking with a trademark attorney who can help you build a clean, persuasive evidentiary record. Let’s simplify this IP process together and ensure your brand receives the protection it deserves.