TTAB 2024 Series, Part 5: Procedure & Evidence - The Technical Game
TTAB cases are won and lost on procedure. Ten 2024 decisions show how discovery, evidence, and motions practice can determine outcomes.
This is Part 5 of our 6-part series on the TTAB's 30 precedential decisions from 2024. Read Part 4 on Use Requirements →
In 2024, the TTAB issued ten precedential decisions on procedural and evidentiary matters. While these may seem technical, they often determine case outcomes. A missed deadline, an improperly handled discovery request, or a weak evidentiary foundation can doom an otherwise strong case.
Here's what practitioners and parties need to know.
Decision 1: USPTO's Inherent Authority to Cancel
Case: Precedential No. 29 Outcome: USPTO has inherent authority to cancel inadvertently issued registrations
What Happened
The USPTO sought to cancel a registration that was inadvertently issued—essentially, a registration that shouldn't have been granted due to an error in the examination process.
The TTAB's Analysis
The Board confirmed that the USPTO has inherent authority to correct its own errors, including cancelling registrations that were improperly granted.
Why It Matters
Registration isn't absolutely final. If the USPTO discovers it made a mistake:
- It can initiate cancellation proceedings
- The registrant will have an opportunity to respond
- But the presumption of validity isn't ironclad against the USPTO's own errors
Practical tip: Don't assume a registration is bulletproof. Maintain your records and be prepared to defend if issues arise—even from the USPTO itself.
Decision 2: Failure to Respond to Admissions = Cancellation
Case: Precedential No. 22 Outcome: Failure to respond to requests for admissions resulted in cancellation
What Happened
A registrant failed to respond to requests for admissions within the deadline. Under TTAB rules, unanswered admissions are deemed admitted.
The TTAB's Analysis
The admitted facts—including facts fatal to the registration—were taken as true. The Board cancelled the registration based on these deemed admissions.
Why It Matters
Requests for admissions are dangerous. Unlike interrogatories or document requests, failure to respond doesn't just mean sanctions—it means the facts are admitted.
Practical tip: Never ignore requests for admissions. Calendar response deadlines carefully. If you need more time, seek an extension before the deadline passes.
Decision 3: VELCRO Cancellation Bifurcated
Case: Precedential No. 21 Outcome: VELCRO cancellation proceeding bifurcated into two phases
What Happened
The cancellation proceeding against VELCRO was complex enough that the Board ordered bifurcation—dividing the case into two phases.
The TTAB's Analysis
Bifurcation can be appropriate when:
- Issues are complex and separable
- Resolving one issue first might simplify or eliminate other issues
- Efficiency would be served by staged proceedings
Why It Matters
Complex cases may not proceed in straightforward fashion. Parties should consider whether bifurcation might benefit their position and when to request it.
Practical tip: In complex proceedings, evaluate whether bifurcation could help your case. If one dispositive issue could resolve everything, argue for addressing it first.
Decision 4: Sovereign Immunity Rejected
Case: Precedential No. 12 Outcome: Sovereign immunity claim rejected in Virginia College System opposition
What Happened
A state entity (related to Virginia's college system) claimed sovereign immunity as a defense in a TTAB opposition.
The TTAB's Analysis
The Board rejected the sovereign immunity defense, finding it inapplicable in this TTAB context. The proceeding continued.
Why It Matters
State entities participating in the trademark system can't hide behind sovereign immunity in TTAB proceedings. If you're opposing or petitioning against a state actor, this defense shouldn't deter you.
Decision 5: "Trademark Bullying" Defense Struck
Case: Precedential No. 8 (DOOR DABZ) Outcome: "Trademark bullying" affirmative defense struck
What Happened
A respondent in an opposition asserted "trademark bullying" as an affirmative defense—arguing essentially that the opposer was using the trademark system to harass competitors.
The TTAB's Analysis
The Board struck this defense. While trademark bullying is a recognized policy concern, it's not a legal defense in TTAB proceedings.
Why It Matters
You can't defend a TTAB proceeding by claiming the other side is a bully. The Board evaluates cases on trademark merits, not litigation conduct (absent truly sanctionable behavior).
Practical tip: Don't rely on creative defenses not grounded in trademark law. Stick to recognized defenses: priority, no likelihood of confusion, abandonment, etc.
Decision 6: META Opposition - Motion to Dismiss Denied
Case: Precedential No. 6 Outcome: Meta Platforms' motion to dismiss META opposition denied
What Happened
Meta Platforms (formerly Facebook) faced an opposition to its META mark. Meta moved to dismiss the opposition.
The TTAB's Analysis
The Board denied the motion to dismiss, finding the opposer had stated a plausible claim that could proceed to discovery and trial.
Why It Matters
Even major companies face the same procedural rules. A motion to dismiss requires showing the claim fails as a matter of law, not just that the defendant is a powerful brand.
Evidence Best Practices
From the 2024 decisions, key evidence lessons:
Documents
- Authenticate everything - Declaration testimony about documents is essential
- Date your evidence - Undated materials have reduced value
- Preserve originals - Digital copies are fine but maintain chains of custody
Testimony
- Expert witnesses - Must be properly qualified and opinions must be relevant
- Fact witnesses - Personal knowledge required
- Declaration format - Most TTAB evidence comes through declarations, not live testimony
Internet Evidence
- Screenshots need dates - URL and date should be visible
- Wayback Machine - Historical screenshots can establish past use
- Website changes - Don't assume current pages prove past facts
Up Next: Part 6 - Special Topics
In our final installment, we'll cover unique cases with broad implications—sovereign immunity, the META opposition, Pan-American Convention claims, and more.
Track TTAB Proceedings with GleanMark
GleanMark monitors TTAB proceedings involving marks in your portfolio. Get alerts when oppositions or cancellations are filed against your registrations—or against competitors.
This article is for informational purposes only and does not constitute legal advice. Consult with a qualified trademark attorney for guidance on your specific situation.
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