Precedential No. 12: TTAB Delivers Up a Nothingburger to Applicant Seeking to Strike Testimony and Evidence

In a precedential interlocutory order, the Board delivered up a nothingburger to Applicant Eifit LLC on its motion to strike certain of Opposer Icon Health's testimony and evidence. The Board deferred until trial any ruling as to a number of objections that raised substantive issues. With respect to Eifit's procedural objections, the Board either overruled them or accepted Icon's amended notices of reliance. Icon Health & Fitness, Inc. v. Eifit LLC, 2022 USPQ2d 315 (TTAB 2022) [precedential].

Eifit moved to strike three of Icon Health's seven notices of reliance, as well as all three of Icon's testimony declarations. Eifit's motion was timely as to the alleged procedural deficiencies. As to substantive grounds that Eifit raised, the Board pointed out that it does not read trial evidence or testimony or review other trial evidence prior to final decision. See Genesco Inc. v. Martz, 66 UPSQ2d 1260, 1263 (TTAB 2003).

As to the three challenged notices of reliance, Eifit contended that they failed to indicate the relevance of the proffered evidence with sufficient particularity. See Rule 2.122(g). The Board noted that this is a procedural defect that can be cured by the offering party. See STX Fin., LLC v. Terrazas, 2020 USPQ2d 10988 at *2 (TTAB 2020). The parties resolved their disagreement as to one of the notices of reliance; the Board found that a second notice of reliance complied with the Rule; and as to the third, the Board accepted Icon's appropriately amended notice of reliance.

With regard to the testimony declarations, Eifit raised mostly substantive objections (for example, hearsay, lack of authentication), as to which the Board deferred decision until trial. The Board did rule on one procedural objection: Eifit claimed that Icon improperly submitted its own interrogatory answers as an exhibit to one of the declarations. The Board overruled that objection, pointing to Rule 2.120(k)(6) and observing that a party may offer its own interrogatory answers during the examination of a witness, including as an exhibit to a testimony declaration. See W. End Brewing Co. v. S. Australian Brewing Co., 2 USPQ2d 1306, 1308 n.3 (TTAB 1987).

Finally the Board noted that Eifit should renew its substantive objections either in its brief on the case, or in an appendix thereto, or in a separate statement of objections filed with its brief. Otherwise they will be considered waived. See, e.g., Wet Seal Inc. v. FD Mgmt. Inc., 82 USPQ2d 1629, 1632 (TTAB 2007) (objection to testimony waived when not renewed in brief). See also TBMP § 707.04.

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TTABlogger comment: This motion resulted in a six-month delay in the proceeding and some bloggable content, but little else.

Text Copyright John L. Welch 2022.