37 C.F.R. § 2.122

Matters in evidence

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(a) Applicable rules. Unless the parties otherwise stipulate, the rules of evidence for proceedings before the Trademark Trial and Appeal Board are the Federal Rules of Evidence, the relevant provisions of the Federal Rules of Civil Procedure, the relevant provisions of Title 28 of the United States Code, and the provisions of this part. When evidence has been made of record by one party in accordance with these rules, it may be referred to by any party for any purpose permitted by the Federal Rules of Evidence.

(b) Application and registration files. (1) The file of each application or registration specified in a notice of interference, of each application or registration specified in the notice of a concurrent use registration proceeding, of the application against which a notice of opposition is filed, or of each registration against which a petition or counterclaim for cancellation is filed forms part of the record of the proceeding without any action by the parties and reference may be made to the file for any relevant and competent purpose in accordance with paragraph (b)(2) of this section.

(2) The allegation in an application for registration, or in a registration, of a date of use is not evidence on behalf of the applicant or registrant; a date of use of a mark must be established by competent evidence. Specimens in the file of an application for registration, or in the file of a registration, are not evidence on behalf of the applicant or registrant unless identified and introduced in evidence as exhibits during the period for the taking of testimony. Statements made in an affidavit or declaration in the file of an application for registration, or in the file of a registration, are not testimony on behalf of the applicant or registrant. Establishing the truth of these or any other matters asserted in the files of these applications and registrations shall be governed by the Federal Rules of Evidence, the relevant provisions of the Federal Rules of Civil Procedure, the relevant provisions of Title 28 of the United States Code, and the provisions of this part.

(c) Exhibits to pleadings. Except as provided in paragraph (d)(1) of this section, an exhibit attached to a pleading is not evidence on behalf of the party to whose pleading the exhibit is attached, and must be identified and introduced in evidence as an exhibit during the period for the taking of testimony.

(d) Registrations. (1) A registration of the opposer or petitioner pleaded in an opposition or petition to cancel will be received in evidence and made part of the record if the opposition or petition is accompanied by an original or photocopy of the registration prepared and issued by the Office showing both the current status of and current title to the registration, or by a current copy of information from the electronic database records of the Office showing the current status and title of the registration. For the cost of a copy of a registration showing status and title, see § 2.6(b)(4).

(2) A registration owned by any party to a proceeding may be made of record in the proceeding by that party by appropriate identification and introduction during the taking of testimony or by filing a notice of reliance in accordance with paragraph (g) of this section, which shall be accompanied by a copy (original or photocopy) of the registration prepared and issued by the Office showing both the current status of and current title to the registration, or by a current copy of information from the electronic database records of the Office showing the current status and title of the registration. The notice of reliance shall be filed during the testimony period of the party that files the notice.

(e) Printed publications and official records. (1) Printed publications, such as books and periodicals, available to the general public in libraries or of general circulation among members of the public or that segment of the public which is relevant in a particular proceeding, and official records, if the publication or official record is competent evidence and relevant to an issue, may be introduced in evidence by filing a notice of reliance on the material being offered in accordance with paragraph (g) of this section. The notice of reliance shall specify the printed publication (including information sufficient to identify the source and the date of the publication) or the official record and the pages to be read; and be accompanied by the official record or a copy thereof whose authenticity is established under the Federal Rules of Evidence, or by the printed publication or a copy of the relevant portion thereof. A copy of an official record of the Office need not be certified to be offered in evidence.

(2) Internet materials may be admitted into evidence under a notice of reliance in accordance with paragraph (g) of this section, in the same manner as a printed publication in general circulation, so long as the date the internet materials were accessed and their source (e.g., URL) are provided.

(f) Testimony from other proceedings. By order of the Trademark Trial and Appeal Board, on motion, testimony taken in another proceeding, or testimony taken in a suit or action in a court, between the same parties or those in privity may be used in a proceeding, so far as relevant and material, subject, however, to the right of any adverse party to recall or demand the recall for examination or cross-examination of any witness whose prior testimony has been offered and to rebut the testimony.

(g) Notices of reliance. The types of evidence admissible by notice of reliance are identified in paragraphs (d)(2) and (e)(1) and (2) of this section and § 2.120(k). A notice of reliance shall be filed during the testimony period of the party that files the notice. For all evidence offered by notice of reliance, the notice must indicate generally the relevance of the evidence and associate it with one or more issues in the proceeding. Failure to identify the relevance of the evidence, or associate it with issues in the proceeding, with sufficient specificity is a procedural defect that can be cured by the offering party within the time set by Board order.

[48 FR 23138, May 23, 1983, as amended at 54 FR 34899, Aug. 22, 1989; 54 FR 38041, Sept. 14, 1989; 63 FR 48099, Sept. 9, 1998; 72 FR 42262, Aug. 1, 2007; 81 FR 69980, Oct. 7, 2016]

Notes of Decisions

Cited in 23 cases (4 in the last 5 years), 1977–2026 · leading case: Cold War Museum, Inc. v. Cold War Air Museum, Inc., 586 F.3d 1352 (Fed. Cir. 2009).

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Cold War Museum, Inc. v. Cold War Air Museum, Inc., 586 F.3d 1352 (Fed. Cir. 2009). · cites it 5× “Evidence of Record in a Cancellation Proceeding The evidence of record before the Board in a cancellation proceeding is governed by 37 C.F.R. § 2.122 (b). Specifically, section 2.”

Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356 (Fed. Cir. 2012). “” 37 C.F.R. § 2.122 (e). Historically, corporate annual reports were not considered printed publications available to the general public and thus were not admissible via a notice of reliance without any authentication.”

Specialty Brands, Inc. v. Coffee Bean Distributors, Inc., 748 F.2d 669 (Fed. Cir. 1984). “37 C.F.R. § 2.122 (b)(1) states that the file of the application “forms part of the record of the proceeding without any action by the parties and reference may be made to the file for any relevant and competent purpose”.”

Yamaha Int'l Corp. v. Hoshino Gakki Co., Ltd., Assignee of Hoshino Gakki Ten Inc., 840 F.2d 1572 (Fed. Cir. 1988). “120 , and are applied to evidentiary matters in conjunction with the Federal Rules of Evidence, 37 C.F.R. § 2.122 (a). The opposer in any opposition proceeding is in the position of plaintiff, and the applicant is in the position of defendant.”

Cerveceria Centroamericana, S.A. v. Cerveceria India, Inc., 892 F.2d 1021 (Fed. Cir. 1989). “37 C.F.R. § 2.122 (a) (1988); Yamaha Int’l Corp.”

Lens.Com, Inc. v. 1-800 Contacts, Inc., 686 F.3d 1376 (Fed. Cir. 2012). · cites it 2× “37 C.F.R. § 2.122 (b)(1) (emphasis added).”

Zdenek Marek v. Old Navy (Apparel) Inc., 348 F. Supp. 2d 275 (S.D.N.Y. 2004). “116 , and the Federal Rules of Evidence, see 37 C.F.R. § 2.122 . The parties may appeal the Board’s decision to the United States Court of Appeals for the *283 Federal Circuit, or bring a civil action in a United States District Court.”

In Re Morris Epstein, 32 F.3d 1559 (Fed. Cir. 1994). “37 C.F.R. § 2.122 (a) (1993). . As discussed above, the abstracts of the software products are not the proper focus of the inquiry.”

MPC Franchise, LLC v. Tarntino, 19 F. Supp. 3d 456 (W.D.N.Y. 2014). “1995) (table) (citing 37 C.F.R. § 2.122 (b)(2) (1994)); see also, 3 J.”

Brunswick Corp. v. British Seagull Ltd. & Outboard Marine Corp., 35 F.3d 1527 (Fed. Cir. 1994). “Admissibility of Evidence The opposers cross-appeal, arguing that the Board erred by refusing to exclude certain evidence on grounds of hearsay and inadequate foundation.”

Hewlett-Packard Co. v. Olympus Corp., 931 F.2d 1551 (Fed. Cir. 1991). “37 C.F.R. § 2.122 (d) (emphasis added). These rules are simple and clear, but Hewlett did not follow them.”

Sanyo Watch Co., Inc. v. Sanyo Elec. Co., Ltd., 691 F.2d 1019 (Fed. Cir. 1982). “…against him, and in the absence of a showing of good and sufficient cause judgment may be rendered as by default. 2 . 37 CFR 2.122. 3 . 37 CFR 2.124(d).”

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— 37 C.F.R. § 2.122(b) — 1 case

Hollister Inc. v. Downey, 565 F.2d 1208 (C.C.P.A. 1977).

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