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Once discovery closes and all the evidence is gathered by both sides, the trial period in the Trademark Trial and Appeal Board begins.

 

The trial period consists of submitting evidence to the Trademark Trial and Appeal Board to prove the case and also taking depositions as trial testimony.

After each party’s trial periods end, then each party submits briefs stating the merits of the case.

Sometimes, as in Weiner v. E&J Starz, Inc., a case we recently won, one party does not submit evidence.  If the plaintiff does not submit evidence, then the case is subject to dismissal with prejudice. 37 C.F.R. §2.132.

 

Are there Oral Arguments in the Trademark Trial and Appeal Board Cases?

Yes, there are.

The Trademark Manual of Board Procedure (which contains the rules of procedure for the Trademark Trial and Appeal Board) states that oral arguments are optional.  If a party would like oral arguments in a Trademark Trial and Appeal Board case, a party must make that request 10 days after the final due date of the reply brief in a Trademark Trial and Appeal Board case. 37 CFR § 2.129 and TMBP § 802.

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An oral hearing is held before a panel of at least three judges of the Board.  TMBP § 802.04.

Each party is given 30 minutes to make the arguments of the case.  This time, however, is also taken up with questions and arguments from the three judges.  Those questions or arguments from the judges can come at any point in the 30 minutes, meaning the judges can (and do) interrupt the lawyers in the middle of the presentation of the case.

This means that there is preparation to giving the oral argument and preparation to being interrupted in the middle of that oral argument and recovering to the point of that oral argument.  This kind of oral argument is called appellate-style because it happens in appeals cases instead of in trial cases, as the cases are presented in the briefs of the parties in the TTAB.