Testimony declarations can be powerful tools in proceedings before the Trademark Trial and Appeal Board. They allow parties to introduce witness testimony into the trial record without automatically requiring a traditional oral testimony deposition. But the convenience of written testimony does not mean a party has unlimited freedom to reshape the facts of its case.

Problems can arise when a testimony declaration contradicts earlier deposition testimony, contains statements beyond the witness’s personal knowledge, introduces matters that should have been disclosed earlier, or otherwise fails to comply with TTAB evidentiary and procedural requirements. In those situations, the opposing party may consider challenging the declaration or portions of it.

Understanding TTAB motions to strike testimony declarations is therefore important for both sides of a trademark opposition or cancellation proceeding. A party offering testimony needs to build a reliable record, while the opposing party needs to recognize when testimony may be vulnerable to objection.

How Testimony Declarations Are Used in TTAB Proceedings

TTAB litigation differs from the courtroom procedure many business owners imagine. Board proceedings are conducted largely through a written evidentiary record. During the appropriate testimony period, a party may introduce testimony through an affidavit or declaration, subject to the Trademark Rules and the opposing party’s right to cross-examine the witness.

This procedure can make presenting testimony more efficient, but the declaration is still evidence. The witness must provide testimony that is competent and admissible, and the opposing party retains the ability to challenge improper material.

A declaration should therefore be treated as testimony, not simply as another opportunity for an attorney to write a persuasive version of the facts.

What Is a “Sham” Testimony Declaration?

The phrase “sham declaration” is often associated with situations where a witness submits later testimony that materially conflicts with earlier sworn testimony, particularly when the new version appears designed to avoid an unfavorable consequence.

In TTAB practice, however, parties should be cautious about assuming that every inconsistency automatically makes an entire declaration inadmissible. Human testimony is rarely perfectly uniform. Witnesses may clarify earlier statements, provide additional context, or explain an answer that was incomplete.

The more important question is whether the inconsistency is meaningful and whether the circumstances provide a legitimate explanation for it.

Suppose a company representative testified during discovery that the company first used a mark in 2022. During trial, that same witness submits a declaration stating that use began in 2019. If priority is a central issue and no explanation or supporting documentation accompanies the new date, the discrepancy may become significant.

The opposing party should identify the inconsistency clearly rather than simply characterize the witness as unreliable.

Contradictory Testimony Can Create Credibility Problems

Not every problem with a declaration requires the Board to exclude it. Sometimes contradictory testimony affects the weight of the evidence rather than its admissibility.

That distinction matters.

The TTAB, as the finder of fact, evaluates the evidentiary record and may determine how much credibility to assign to particular testimony. A contradiction between a discovery deposition and a later trial declaration can therefore become part of the opposing party’s argument that the witness’s account should receive little weight.

This is why earlier discovery testimony can become particularly valuable at trial. Depositions do more than uncover information. They can establish a record against which later testimony is compared.

Attorneys handling TTAB proceedings should consequently approach discovery with the eventual trial record in mind.

Personal Knowledge Matters in TTAB Testimony

Another potential problem occurs when a declaration contains assertions the witness is not competent to make.

A corporate employee might have personal knowledge of the company’s current marketing practices but no firsthand knowledge of events that occurred years before that employee joined the business. Similarly, a founder may know when a product was developed but may not personally know how consumers perceived a competing trademark.

A testimony declaration should establish a foundation showing how the witness knows the facts being presented.

Without that foundation, the opposing party may object that certain statements lack personal knowledge or otherwise constitute inadmissible evidence. The problem becomes particularly important when the testimony is being used to prove priority, trademark use, commercial strength, advertising history, or other facts central to a TTAB claim.

Hearsay Can Also Become an Issue

Written declarations sometimes contain statements about what customers, distributors, employees, or other people supposedly said.

Those statements can raise hearsay concerns depending on why they are being offered.

For example, a witness saying that “customers told us they believed the two companies were related” presents different evidentiary questions from a witness describing the company’s own marketing practices. The first statement attempts to introduce another person’s words through the witness.

Parties preparing TTAB testimony declarations should therefore distinguish between what the witness personally observed and information learned from other people.

A declaration packed with secondhand statements may look persuasive at first glance but can become substantially less useful once evidentiary objections are considered.

Can Improper Testimony Simply Be Stricken?

Requests to strike testimony should be approached carefully. The appropriate procedure can depend on the nature of the alleged defect and whether it could have been cured if the objection had been raised earlier.

Some objections concern the admissibility of evidence. Others concern procedural defects. Still others go primarily to evidentiary weight.

That distinction can affect when and how the issue must be raised.

A party that waits until final briefing to identify a defect that could have been corrected during the testimony period may face a waiver problem. Conversely, certain substantive objections may be preserved for consideration with the final decision.

This makes timing one of the most important components of TTAB evidentiary objections.

Cross-Examination Can Be More Effective Than Exclusion

When a party submits testimony by declaration, the opposing party generally has an opportunity to cross-examine the declarant. That can provide a powerful method for addressing questionable statements.

Consider again the witness who changes a claimed first-use date from 2022 to 2019. Cross-examination can explore where the new date came from, whether the witness reviewed records before signing the declaration, whether those records were produced in discovery, and why the earlier testimony differed.

The resulting testimony may provide the Board with a much clearer basis for assessing credibility than a broad request to exclude the declaration entirely.

This is an important strategic point. The objective in TTAB litigation is not necessarily to file as many evidentiary motions as possible. The objective is to build a record that helps the Board resolve the disputed issues in your client’s favor.

Improper Declarations Can Affect More Than One Witness

Problems with testimony declarations can also expose weaknesses elsewhere in a party’s case.

If a declaration relies heavily on business records that were never properly introduced, the testimony may raise questions about the documentary foundation. If the declaration presents facts that were not disclosed during discovery, the opposing party may investigate whether disclosure obligations were satisfied. If several witnesses repeat nearly identical language about matters outside their direct responsibilities, questions about personal knowledge may become more important.

For this reason, declarations should not be drafted in isolation. They should fit coherently with discovery responses, deposition testimony, documentary evidence, pleadings, and the theories the party intends to present at final briefing.

Consistency across the record strengthens credibility.

Building a Cleaner TTAB Trial Record

The best way to handle disputes over improper testimony is often to anticipate them long before the testimony period opens.

Discovery should identify important witnesses and test the factual basis for the opposing party’s claims. Depositions can establish positions on priority, use, consumer perception, sales, advertising, and other disputed facts. Documentary discovery can then be compared against subsequent testimony.

When trial begins, declarations should be carefully reviewed against that earlier record.

This approach benefits both parties. The party presenting testimony can correct genuine mistakes and establish proper foundations before filing. The opposing party can identify meaningful contradictions and determine whether cross-examination, an evidentiary objection, or another procedural response is appropriate.

Protecting the Integrity of the TTAB Record

A TTAB testimony declaration is more than a written narrative. It becomes part of the evidentiary record upon which the Board may ultimately decide whether a trademark application proceeds to registration or whether an existing registration remains protected.

For that reason, testimony needs to be accurate, properly supported, and consistent with applicable TTAB procedure.

When a declaration materially conflicts with prior sworn testimony or contains other evidentiary defects, the opposing party should evaluate the nature of the problem, determine whether an objection must be raised promptly, and consider whether cross-examination may provide a stronger response than attempting to exclude the testimony altogether.

TTAB evidentiary disputes can become highly technical, particularly when procedural objections intersect with questions of credibility and evidentiary weight. Experienced trademark attorney can help businesses develop the record strategically and preserve objections at the appropriate stage of the proceeding.

At Cohn Legal, we represent businesses and trademark owners in TTAB oppositions, cancellations, and related trademark disputes. Protecting a brand sometimes requires more than obtaining a registration. It requires protecting the evidentiary record when those rights are challenged.