It is surprising how often clients will not realize that the TTAB Opposition and Cancellation Proceedings are litigation proceedings. They are administrative in nature, but the Federal Rules of Civil Procedure and Federal Rules of Evidence still apply. Thus, filing a summary judgment can often be an effective method of resolving cancellation and opposition proceedings with the TTAB. The TTAB’s rules do have some nuisances, such as the requirement that the parties exchange 26 (a) (1) disclosures before filing a summary judgment motion.
However, even in most Court proceedings the parties will not file a summary judgment motion, until after both sides have had an opportunity to complete discovery. Unfortunately, the TTAB and its attorneys are not necessarily used to making rulings on evidentiary issues, motions in limine, and a variety of other areas of trial practice. Thus, often times the TTAB does make mistakes on key evidentiary issues, standards of law and application of trial standards to TTAB cancellation and opposition practice.
Moreover, over often times, many TTAB Attorneys do not realize the need for a summary judgment to be decided based on admissible evidence. The same standard applies to summary judgment motions in front of TTAB. Thus, it is not unusual for the TTAB to make an error of law and require a party to file a motion for reconsideration. In fact, many times this can be good opportunity to create your record for an appeal to a federal court that may be more comfortable with ruling upon evidentiary issues and deciding summary judgment motions based on Federal Rule of Civil Procedure 56.
Parties are allowed to appeal final decisions from the TTAB to their local Federal Courts, D.C. Circuits or the Federal Circuit and the Supreme Court. Moreover, the parties may even be allowed to offer new or evidence that was excluded from the TTAB proceedings. However, the TTAB does offer an Accelerated Case Resolution Process that can be used to have summary judgment motions be used for trial purposes. This can often be a cost saving and effective strategy for dispositions of the TTAB proceeding for both parties.
Thus, working with a Trademark Attorney that has Federal Court Litigation and Trial experience is vital to the success of a TTAB cancellation or opposition proceeding. If you have any concerns or questions, then please feel free to contact us at http://www.vrplawgroup.,com