An oral hearing in a trademark opposition or trademark cancellation provides each party a final opportunity to explain and emphasize their strongest arguments, as well as to rebut and refute the other party’s arguments. Although the oral hearing doesn’t become part of the evidentiary record (unlike the testimony and documents submitted during a party’s trial period), it does give each party a chance to persuade the Trademark Trial and Appeal Board (TTAB) that its legal position is the strongest and that the TTAB should rule in its favor.
How Does a Party Request an Oral Hearing?
If a party wants to request an oral hearing, it must do so by electronically filing a request for an oral hearing through the TTAB Center no later than ten days after the due date for filing the last reply brief in the proceeding. The requesting party must also pay the requisite filing fee. Please note that requesting an oral hearing is optional. In fact, in the vast majority of oppositions and cancellations, neither party requests a hearing. Instead, each party simply relies on its written trial brief to do the talking.
After an oral hearing is requested, the TTAB will set a deadline for the requesting party to submit several potential dates and times for the hearing. Both parties should work together to find mutually convenient dates/times for the hearing. The TTAB will choose one of those mutually agreed upon dates/times and will then notify the parties in writing of the date, time, and location of the scheduled hearing.
Where is the Oral Hearing Held?
Oral hearings are generally held at the USPTO headquarters in Alexandria, Virginia in the TTAB’s hearing room. Unless an in-person hearing is specifically requested by the parties, the TTAB will generally schedule the hearing to be conducted via video conference. This allows each party to attend the oral hearing remotely rather than having to travel to Virginia to participate.
Infrequently, oral hearings are held somewhere other than the USPTO headquarters in conjunction with a legal conference or a continuing legal education (CLE) program. In that event, the parties are usually requested to attend the hearing in-person.
Does Each Party Have to Attend?
The party requesting the oral hearing is required to attend the hearing at the appointed date and time. If the requesting party fails to appear, then the TTAB will deem that party’s right to an oral hearing to be waived and the TTAB will not reschedule the hearing.
The non-requesting party is not required to attend. If the non-requesting party intends not to attend the hearing, it should notify the TTAB at least two weeks in advance of the scheduled hearing date.
What Happens During the Oral Hearing?
The oral hearing is held in front of a panel of three TTAB judges who have already read the trial briefs and examined the evidence submitted by the parties. Each party is allowed 30 minutes for its oral argument. The plaintiff may reserve a portion of its 30 minutes for rebuttal of the defendant’s arguments. If the defendant filed a counterclaim in the opposition or cancellation, then the defendant (as the plaintiff in the counterclaim) may also reserve part of its 30 minutes for rebuttal on the counterclaim.
During each party’s oral argument, the judges may ask questions or request clarification of the party’s arguments. Although the judges may (and routinely do) interrupt a party’s oral argument to ask questions or request clarification, neither party is permitted to interrupt the other party during the course of its oral argument.
Neither party may use the oral hearing to introduce new arguments or offer new evidence. However, they may use visual aids (such as charts and graphs) during their arguments to help explain their positions or to summarize evidence that was previously submitted during their trial periods.
The parties are strictly prohibited from video recording the oral hearing. If either party wants to make an audio recording of the hearing, it must file a motion with the TTAB requesting permission to do so. Such motion must be filed well in advance of the hearing, and the requesting party must demonstrate “good cause” for recording the hearing.
After the oral hearing has been completed, the case will be submitted to the same panel of judges for its final decision.
Do You Require Any Assistance?
I’m experienced US trademark attorney Morris Turek. If you’re involved in a trademark opposition or cancellation and believe an oral hearing would benefit your case, I would be glad to assist you with requesting, scheduling, and conducting one on your behalf. You may contact me by phone at (314) 749-4059, via email at morris@yourtrademarkattorney.com, or by submitting the contact form located near the bottom of this page (please don’t forget to include the opposition or cancellation number). I look forward to hearing from you soon.