Why More Witnesses Do Not Always Make a Stronger TTAB Case
Imagine preparing for a trademark opposition proceeding and identifying six employees who can testify about the company’s use of its trademark. Each employee knows the brand, remembers its early development, and can explain how the business operates.
At first glance, calling all six witnesses might seem like a sensible approach. After all, more testimony should mean more evidence, right?
Not necessarily.
In proceedings before the Trademark Trial and Appeal Board (TTAB), the strength of a case depends less on how many witnesses testify and more on whether their testimony establishes facts relevant to the legal issues.
A witness who provides firsthand knowledge of trademark use may contribute substantially to the record. Another witness who merely repeats the same information might add little.
This distinction matters because TTAB litigation is not a contest to see which party can produce the longest evidentiary record. It is a legal proceeding in which each party must establish the elements of its claims or defenses through properly introduced evidence.
Understanding how the Board evaluates witness testimony can help trademark owners avoid unnecessary litigation expenses while building a more persuasive case.
How Witness Testimony Works in TTAB Proceedings
The TTAB handles disputes involving the registrability of trademarks, including trademark oppositions and cancellation proceedings. Unlike federal trademark infringement lawsuits, TTAB proceedings generally focus on whether a trademark should be registered or remain registered.
Witness testimony plays an important role in establishing facts that cannot be proven through trademark registration records alone.
For example, a business may need testimony to establish when it first used a mark, how customers encounter its products, or whether particular business records accurately reflect commercial activity.
Under the Trademark Trial and Appeal Board Manual of Procedure (TBMP), particularly Chapter 700, testimony may generally be introduced through properly executed affidavits or declarations, or through testimony depositions conducted in accordance with applicable rules.
The use of written testimony does not eliminate an opposing party’s ability to seek cross-examination where permitted.
The critical question is whether the testimony helps establish a disputed fact. Simply having multiple witnesses repeat that a company has used its trademark for many years does not necessarily prove the relevant date of first use or the extent of that use.
What Is Cumulative Testimony in Trademark Litigation?
Cumulative testimony occurs when additional witnesses provide substantially repetitive evidence about a fact that has already been addressed.
Consider a company defending its trademark registration against a cancellation petition.
Its founder testifies that the company began selling products under the disputed mark in 2018. The sales manager then provides the same account. Three additional employees testify that they remember the business using the mark around that time.
Although the witnesses may be credible, their statements could provide limited additional value if none can identify actual transactions, explain contemporaneous records, or establish the precise facts in dispute.
The Federal Rules of Evidence, which generally apply to TTAB proceedings, recognize that unnecessarily cumulative evidence may be excluded under Rule 403. The Board also has authority to manage proceedings and evaluate the probative value of evidence.
This does not mean that multiple witnesses are automatically improper. Independent testimony can be valuable when witnesses have different responsibilities, personal knowledge, or perspectives.
The concern arises when additional testimony increases the size and cost of the record without meaningfully strengthening the underlying proof.
Why Witness Selection Matters Under the TBMP
A well-prepared TTAB case begins by identifying the factual questions that must be answered.
In a trademark priority dispute, those questions might involve the earliest qualifying use of the mark, the continuity of commercial activity, or the relationship between the trademark owner and another business using the mark.
A founder might explain the origins of the brand and its initial launch. An accounting employee might authenticate historical invoices. A marketing director might explain advertising campaigns and customer exposure.
Each witness contributes something different.
By contrast, calling several employees simply because they are familiar with the business can create repetitive testimony that does little to resolve contested issues.
Witness selection should therefore reflect the evidence required for each claim or defense, rather than the number of individuals available to testify.
For trademark owners, this approach can also make the litigation process more manageable. Preparing testimony, reviewing declarations, coordinating depositions, and responding to cross-examination requests all require time and resources.
A smaller group of knowledgeable witnesses may provide a clearer evidentiary record than a larger group offering overlapping accounts.
When Additional Testimony Creates More Questions Than Answers
More witnesses can also introduce inconsistencies.
Suppose a company founder recalls launching a product in March, while a former employee remembers the launch taking place in June. A third witness believes the product was available earlier but cannot identify supporting documentation.
These differences do not automatically make the testimony unreliable. Human memory is imperfect, especially when witnesses are asked to recall events from several years earlier.
Nevertheless, conflicting accounts may create questions about the accuracy of the claimed timeline.
In TTAB proceedings, opposing counsel may use cross-examination to explore these discrepancies. Testimony intended to reinforce a party’s position could instead reveal uncertainty about important facts.
This is one reason historical invoices, advertisements, product records, and other contemporaneous materials can be valuable. When properly introduced, such documents may provide independent support for witness testimony.
The goal should not be to eliminate legitimate differences in recollection. It should be to present accurate, relevant testimony supported by reliable evidence.
Can the TTAB Exclude Repetitive Witness Testimony?
The Board may consider objections to testimony under the applicable evidentiary rules.
Federal Rule of Evidence 403 permits exclusion of relevant evidence when its probative value is substantially outweighed by specified concerns, including the needless presentation of cumulative evidence.
However, repetitive testimony is not automatically inadmissible. Whether evidence should be excluded depends on the circumstances, the applicable rules, and the Board’s assessment.
TBMP Chapter 700 addresses trial testimony, the introduction of evidence, and evidentiary objections. Parties must also comply with applicable pretrial disclosure requirements and testimony-period deadlines.
Importantly, the Board may admit evidence but ultimately assign it limited weight.
For example, several witnesses might testify that a trademark is widely recognized. Without meaningful evidence of consumer exposure, sales, advertising, or market recognition, those statements may not establish the degree of commercial strength claimed.
The distinction between admissibility and evidentiary weight is therefore important. Evidence can become part of the record without necessarily persuading the Board.
Building a More Focused TTAB Trial Strategy
Effective TTAB litigation requires understanding what each witness can actually prove.
Rather than treating witness preparation as a numbers exercise, parties should evaluate how testimony fits with documentary evidence, legal claims, and the issues that remain disputed.
A witness with direct responsibility for historical sales records may provide more useful testimony about commercial activity than several employees who only remember seeing the trademark in advertisements.
Similarly, a knowledgeable marketing executive may explain how a brand was promoted, but that testimony should not automatically be treated as proof of how consumers perceived the mark.
Parties should also remember that written declarations are not necessarily a shortcut around meaningful examination. Under Trademark Rule 2.123, an adverse party may request cross-examination of a witness who provides affidavit or declaration testimony, subject to applicable procedures.
Thoughtful witness selection can reduce unnecessary preparation while preserving the testimony needed to support the case.
Final Thoughts: Strong TTAB Cases Depend on Relevant Evidence, Not Witness Counts
A trademark opposition or cancellation can involve extensive discovery, multiple witnesses, and a substantial documentary record. Yet the outcome ultimately depends on whether the parties establish the facts necessary to support their legal positions.
Additional testimony can strengthen a case when it introduces independent knowledge, clarifies disputed events, or supports important evidence.
When witnesses merely repeat one another, however, the additional testimony may provide little benefit while increasing litigation costs and creating opportunities for inconsistency.
For trademark owners, the lesson is straightforward: the value of a witness lies in what that person can reliably establish, not simply in their willingness to testify.
If your business is involved in a trademark opposition, cancellation, or another registration dispute, Cohn Legal can help evaluate the available legal options and develop an appropriate litigation strategy.
Visit www.cohnlg.com to learn more or request an initial consultation.
