The trial brief in a trademark opposition or trademark cancellation is each party’s opportunity to discuss the facts of the case and to present its arguments in support of its position. The Trademark Trial and Appeal Board (TTAB) will carefully read each party’s trial brief and review the evidence the parties submitted during their trial period in making its final decision. No additional evidence may be filed with the trial brief and the plaintiff may not assert any claims that were not properly pleaded in the notice of opposition or petition for cancellation. Similarly, the defendant is prohibited from raising any affirmative defenses that were not raised in its answer.
What are the Requirements for the Trial Brief?
Section 801.03 of the Trademark Trial and Appeal Board Manual of Procedure (TBMP) sets forth all of the requirements pertaining to the form and contents of each party’s trial brief. However, there are really only three items each party’s trial brief must include (besides also complying with the general requirements applicable to all written submissions to the TTAB):
- No more than 55 pages
- An alphabetical index of cases cited in the trial brief
- An argument with accurate citations to the evidentiary record (this is the most important part of the brief)
The following items should also be included to assist the TTAB in its consideration of the case, but they are not required under the rules:
- Table of contents
- Description of the evidentiary record (essentially a list of all evidence that was submitted by the parties during their trial periods)
- Statement of the issues (basically a sentence or two concisely stating the issue(s) being decided by the TTAB)
- Recitation of facts (usually a few paragraphs outlining the relevant facts supported by citations to the evidentiary record)
- Statement of evidentiary objections (essentially an argument that some or all of the evidence submitted by the opposing party is legally inadmissible)
What Happens if I Don’t File a Trial Brief?
If you’re the plaintiff in a trademark opposition or cancellation, you’re required to file a trial brief. If you fail to do so, the TTAB will treat your failure to file a brief as a concession of the case and judgment will be entered against you (even if you submitted admissible evidence during your trial period).
On the other hand, if you’re the defendant in a trademark opposition or cancellation, you’re not required to file a trial brief. However, if the plaintiff filed a trial brief, then I would strongly recommend doing so. Otherwise, the TTAB (1) won’t consider any evidence you may have submitted during your trial period, and (2) won’t be able to consider any arguments you may have in support of your position in the case. In other words, the TTAB will only be hearing the plaintiff’s side of the story and not yours.
When is Each Party’s Trial Brief Due?
The plaintiff’s trial brief is generally due 60 days after the close of the plaintiff’s rebuttal trial period. You should verify the due date by reviewing the most recent scheduling order sent out by the TTAB.
The defendant’s trial brief is generally due 30 days after the due date of plaintiff’s trial brief. Again, you should verify the due date by reviewing the TTAB’s most recent scheduling order.
Finally, the plaintiff may file a reply brief to rebut any arguments presented by the defendant. The deadline for filing the reply brief is generally 15 days from the due date of defendant’s trial brief. Again, the due date can be verified by reviewing the TTAB’s most recent scheduling order. Please note that a reply brief may not be longer than 25 pages (and it’s usually much shorter than that).
All briefs must be filed electronically with the TTAB through the TTAB Center.
What Happens Next?
Assuming that neither party requested an oral hearing after all trial briefs were submitted, the case will be submitted for final decision. If an oral hearing was requested, then the TTAB will work with the parties to schedule the hearing. Once the oral hearing has concluded, the case will be submitted for final decision.
Do You Need Some Assistance?
I’m experienced US trademark attorney Morris Turek. Whether you’re the plaintiff or defendant in a trademark opposition or cancellation, I would be happy to assist you in preparing and filing your trial brief. You can call me at (314) 749-4059, send me an email at morris@yourtrademarkattorney.com, or submit a message through 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.