Evidence and Proof of Facts

A petition must include a statement of the relevant facts and

be accompanied by any evidence to be considered.

37 C.F.R.

§§2.146(c)

,

2.147(a)(2)(ii)-(iii),

(b)(2)(i)-(iii)

. Any recitation of facts or evidence submitted with the

petition or to supplement the petition must be verified with an affidavit or declaration

under

37 C.F.R §2.20

.

37 C.F.R §§2.146(c)

,

2.147(a)(2)(iii)

,

(b)(2)(i)

. When facts are to be proved on petition, petitioner must

submit proof in the form of verified statements signed by someone with firsthand knowledge

of the facts to be proved.

37 C.F.R §2.146(c)(1)

.

For example, if the petitioner seeks waiver of a provision of the rules under

37 C.F.R §2.146(a)(5)

and

§2.148

, a declaration or

affidavit submitted as evidence of an extraordinary situation must be signed by an

individual with firsthand knowledge of the circumstances asserted to be extraordinary. See

TMEP

§1708

regarding petitions to the Director seeking waiver of

rules.

Petitioners should not submit as evidence any documents

that are already part of the record for the subject application or registration, or any

USPTO records that are not relevant to the petition. For example, in most circumstances,

submitting the entire record of a Trademark Trial and Appeal Board (Board) proceeding or the

entire record of an application or registration would not be necessary to support a

petition; only relevant documents from such records should be submitted. Further, it is

inappropriate for the petitioner to “dump” evidence and leave it to the Office to determine

its possible relevance. Therefore, a petition accompanied by more than 75 pages of evidence

must include a separate itemized index listing the supporting evidence and identifying what

fact(s) it supports, along with an explanation of why it is necessary to include more than

75 pages of evidence, or the petition may be considered incomplete

to “dump” evidence and leave it to the Office to determine

its possible relevance. Therefore, a petition accompanied by more than 75 pages of evidence

must include a separate itemized index listing the supporting evidence and identifying what

fact(s) it supports, along with an explanation of why it is necessary to include more than

75 pages of evidence, or the petition may be considered incomplete. In such a case, a staff

attorney or paralegal in the Office of the Deputy Commissioner for Trademark Examination

Policy will notify the petitioner that an index and explanation are required, and grant the

petitioner 30 days to submit these items. If the petitioner does not submit the index and

explanation within the time allowed, the petition will be denied, or, in appropriate cases,

a decision on petition will be rendered based on the first 75 pages of evidence.

When a petition includes an unverified assertion that is not

supported by evidence, a staff attorney or paralegal in the Office of the Deputy

Commissioner for Trademark Examination Policy will notify the petitioner that an affidavit

or declaration is required, and grant the petitioner 30 days to submit the necessary

verification.  If the petitioner does not submit a verification within the time allowed, the

petition will be denied, or, in appropriate cases, a decision on petition will be rendered

based on the information in the record, without consideration of the unverified

assertion.

If physical evidence is available, such as a printout of the

trademark electronic filing system submission confirmation page that shows the date of

actual receipt of a document by the USPTO (

see

TMEP

§303.02(a)

), the petitioner should include the evidence with the

initial petition.  Evidence consisting only of a verified statement without supporting

evidence may not be sufficient.