Introduction

When it comes to proceedings before the Trademark Trial and Appeal Board (TTAB), evidence is everything. A strong case at the TTAB does not hinge solely on the strength of your brand or the creativity of your mark; it depends on how effectively you gather, prepare, and present your evidence. Many entrepreneurs, startups, and even experienced business owners lose TTAB cases not because their arguments lack merit, but because their evidence fails to meet procedural or substantive requirements.

At Cohn Legal, PLLC, we guide clients through TTAB disputes every day from oppositions to cancellations ensuring that every piece of evidence submitted meets the Board’s exacting standards. Your brand is everything, and understanding what counts (and what doesn’t) in TTAB evidence can make the difference between protection and loss.

The Role of Evidence in TTAB Proceedings

The TTAB’s jurisdiction is limited to determining whether a trademark should or should not be registered. It does not decide issues such as infringement or damages. This narrow focus means that the quality, admissibility, and relevance of your evidence are critical. Evidence establishes key facts such as priority of use, likelihood of confusion, the fame or distinctiveness of a mark, abandonment or nonuse, and whether a mark is descriptive or generic. Because TTAB cases are administrative rather than judicial, they follow specific evidentiary rules that differ from those used in federal courts. Understanding those nuances ensures that your submissions are both admissible and persuasive.

What Counts as Proper Evidence

Testimony depositions form the backbone of TTAB evidence. They capture sworn testimony from parties and witnesses, often accompanied by documentary exhibits. Each deposition must be transcribed and filed properly because the TTAB does not accept video or audio submissions. A witness must have personal knowledge of the facts, and their statements must relate directly to the issues in the proceeding. For example, a company executive testifying about marketing expenditures or consumer perception must have firsthand familiarity with those facts.

Another key evidentiary tool is the notice of reliance, which allows parties to introduce certain types of evidence without calling a witness. Acceptable materials include printed publications, official government records, responses to interrogatories or admissions by the opposing party, and TTAB or USPTO records such as prior registrations and file histories. However, documents produced by an adversary in discovery cannot be introduced through a notice of reliance unless they qualify independently as admissible material, such as official records or authenticated admissions.

The TTAB also accepts internet evidence, but only when it is properly identified. Online materials such as webpages, social media posts, or online news articles can be admitted if they include the URL of the source and the date of access or publication. Without these details, the TTAB may reject the evidence as unreliable or unverifiable.

Trademark Office records also play an important role in TTAB proceedings. Certified or electronic USPTO records showing the current status and title of a registration are automatically admissible. This includes registrations owned by a party or third-party registrations introduced to show industry trends, such as the coexistence of similar marks. However, simple search results or private database listings from commercial search vendors are not acceptable substitutes for official USPTO records.

What Does Not Count as Admissible Evidence

The TTAB has clear boundaries on what it will consider. Submitting evidence that does not meet its rules can undermine even a strong case. Unverified internet material, such as screenshots or copies of webpages without a URL and date of access, is typically inadmissible. Unauthenticated documents, including letters or reports without certification or witness verification, also carry no evidentiary weight. Similarly, unsworn statements or emails are not recognized as proper evidence. Attachments to pleadings are not automatically part of the record unless they are properly introduced during trial, and hearsay statements from third parties who cannot be cross-examined are generally excluded.

Timing and Procedure Matter

Even the most compelling evidence can be disregarded if it is filed late or improperly. Each TTAB case follows a specific timeline for discovery, testimony, and rebuttal. Evidence must be submitted during the correct testimony period, and any delay or omission can result in exclusion. Discovery evidence must be gathered during the discovery phase, testimony depositions and exhibits must be introduced during the testimony period, and rebuttal evidence must only counter points raised by the opposing party’s case. Failure to follow these deadlines may lead to a motion to strike or even dismissal for failure to prosecute.

The Importance of Pretrial Disclosures

Fifteen days before each testimony period, parties must file pretrial disclosures listing the witnesses they intend to call and the subjects of their expected testimony. Skipping or inadequately preparing these disclosures can lead to the exclusion of witnesses or exhibits at trial. At Cohn Legal, we emphasize the importance of early evidence planning. By anticipating what will be needed months before the testimony period, we ensure clients have a comprehensive record ready to withstand any procedural challenge.

Building a Persuasive Evidentiary Record

Winning before the TTAB is not just about meeting the rules; it is about persuasion. Strong evidence tells a coherent and credible story about your brand’s identity, use, and recognition. The TTAB values representative examples rather than excessive quantities of documents. Instead of flooding the record with hundreds of advertisements, parties should choose samples that best illustrate consistent and widespread use. Each document should be authenticated through a witness, stipulation, or certification to establish its credibility. Whenever possible, parties should agree on undisputed facts or the admissibility of certain records through stipulations to save time and reduce objections. Redundancy should be avoided, as the Board values concise and relevant submissions over sheer volume.

Strategic Use of Evidence in TTAB Cases

Strategic planning can amplify the power of your evidence. A well-prepared survey expert, for instance, can provide valuable insight into consumer perception, which is often critical in disputes involving likelihood of confusion or descriptiveness. Third-party registration evidence can also be used to demonstrate how common certain words or symbols are within an industry. TTAB judges are experts in trademark law but may not be familiar with your specific market. Your evidence must educate them clearly and persuasively about your industry, your brand’s strength, and how consumers perceive your mark.

Why Legal Guidance Is Essential

The TTAB’s evidentiary rules can be complex and unforgiving. A single procedural misstep can nullify months of preparation. Working with experienced TTAB counsel ensures that your evidence is not only complete but also strategically presented. At Cohn Legal, PLLC, we act as your legal consigliere, strategizing not only for the immediate case but also for your long-term brand protection goals. We simplify complex TTAB processes so you can focus on what truly matters: growing your business and strengthening your brand.

Conclusion

Evidence is the foundation of every TTAB proceeding. From proper authentication to timely submission, the rules that govern admissibility are precise and must be followed closely. Knowing what counts and what doesn’t can be the deciding factor between a successful opposition and a dismissed case.

Your brand deserves meticulous protection at every step. If you are facing a TTAB opposition or cancellation proceeding, Cohn Legal, PLLC is here to guide you through every phase from strategy to execution with clarity and confidence.