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Failure of Proof

If the party in the position of plaintiff (which includes a counterclaim plaintiff) fails to submit any proof during its initial testimony period, the opponent can move, prior to commencement of its own testimony period, for a dismissal on the ground of failure to prosecute pursuant to Trademark Rule 2.132(a), 37 C.F.R. Sec. 2.132(a).
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A state's decision about what is legal or illegal is not relevant to the Board, as demonstrated in the recent TTAB decision, In re Morgan Brown (Herbal Access), Serial No. 8636298 (July 14, 2016).
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Burden of Proof

Like a trial in the federal courts, opposers/petitioners in the TTAB normally have the burden of proof for their claims, and applicants/registrants have the burden of proof for their counterclaims and affirmative defenses.
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Before your client decides to file an application for a trademark without fully committing to the mark, confirm that the client understands the consequences of what may occur if the application draws an opposition.
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Certain printed publications can be admitted into evidence through a Notice of Reliance.
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