Burden of Proof

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09.19.16

By Leslie Ruiter

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.  In TTAB trials, the party in the position of plaintiff bears the burden of proving by preponderance of the evidence its asserted grounds. There are a few exceptions to this “preponderance” standard: where a party claims an earlier first-use date than the date claimed in its application or registrations, it must establish the earlier date by “clear and convincing evidence.”  See, e.g. Hydro-Dynamics, Inc. v. George Putnam & Co., 811 F.2d 1470, 1 U.S.P.Q.2d 1772, 1773 (Fed. Cir. 2008).  Another exception is where fraud is alleged, which must be also proven by “clear and convincing evidence.” In re Bose, 580 F.3d 1240, 91 U.S.P.Q.2d 1938 (Fed. Cir. 2009).

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