Testimony Declaration
(Trademark Use and Confusion) (Opposer/Petitioner) (TTAB)

Summary

This template is a testimony declaration that an opposer or petitioner may file during its testimony period in a Trademark Trial and Appeal Board (TTAB or Board) opposition or cancellation proceeding. It may be used to help establish trademark use and likelihood of confusion. The template includes practical guidance, drafting notes, and alternate and optional clauses. A party in an opposition or cancellation proceeding may submit evidence during its testimony period in one of three ways: • Notices of reliance (for documentary evidence) • Testimony depositions • Declaration or affidavit testimony (declarations are generally submitted because, unlike affidavits, they do not need to be notarized) See 37 C.F.R. §§ 2.120(k), 2.122(g), 2.123(a); Trademark Trial and Appeal Board Manual of Procedure 703. For sample notices of reliance, see Notice of Reliance (Printed Publications) (TTAB), Notice of Reliance (Official Records) (TTAB), Notice of Reliance (Trademark Registrations) (TTAB), Notice of Reliance (Discovery Depositions) (TTAB), and Notice of Reliance (Discovery Responses and Disclosures) (TTAB). A testimony declaration may be preferable to a testimony deposition for various reasons, such as: • The witness has little or no deposition experience and/or is not fluent in legal matters • Convenience (declarations can be drafted over a period of time, in one or more sessions, in person or by phone) • Expense, especially if multiple witnesses are needed to present your client's case in chief (although testimony depositions can be taken remotely by video conference or by phone, many attorneys find that such methods are not as effective) If testimony is submitted by declaration, the adverse party has the right to orally cross-examine the declarant. In such case, the adverse party must pay its own travel and attorney expenses and the costs of the court reporter and venue if necessary, while your client bears the expense of producing its witness. 37 C.F.R. § 2.123(a); Trademark Trial and Appeal Board Manual of Procedure 703 (see § 703.01(b)). Evidence presented in a testimony declaration must be admissible under the applicable rules of evidence (i.e., the Federal Rules of Evidence, relevant provisions of the Federal Rules of Civil Procedure, relevant provisions of Title 28 of the United States Code, and the Trademark Rules of Practice) unless the parties otherwise stipulate. 37 C.F.R. §§ 2.122(a), 2.123(l). For more information on testimony declarations, see TTAB Litigation: Procedural Considerations — Testimony Period. For additional TTAB resources, see TTAB Proceedings Resource Kit.