Although Trademark Trial and Appeal Board ("Board" or "TTAB") proceedings are typically shorter and less expensive than federal court litigation, the proceedings still endure for a minimum of 18 months and can be quite costly. For general information on Board proceedings, see our firm page entitled, Trademark Trial and Appeal Board Proceedings. Most Board proceedings will be extended or suspended (for various reasons such as settlement discussions or motion practice) for periods of time. This means that from commencement of the proceedings through to the final decision, the process will take on average 3 years or more to complete. Most parties cannot financially afford the proceedings. This is supported by statistics that show that approximately only 2-3 percent of cases annually receive a final decision on the merits. Recognizing the lengthy time frames and high costs involved in these proceedings, the Board considered proposals from stakeholders to more efficiently handle these matters. In the end, the Board decided to provide cost effective options for parties to Board proceedings, creating Accelerated Case Resolution "ACR". ACR presents a more efficient and economical alternative to discovery, trial and briefing.
ACR applies to both opposition and cancellation proceedings. ACR is available in all cases. In every case proceeding under ACR, there will be pleadings and an Institution Order issued by the Board. The cases that are most appropriate for ACR are those that require less or little discovery, scenarios where parties can stipulate to many facts, few anticipated witnesses, agreement by the parties to use summary judgment submissions, and agreement to have the Board resolve disputes of material fact. Lastly, the parties should anticipate being able to stipulate to the admissibility of the majority of the record. Regarding objections to any specific items of evidence, the parties can object on grounds of relevance or weight in the final briefs or in summary judgment submissions. It is important to keep in mind that the Board's decision in a proceeding utilizing ACR is final, and therefore it is judicially reviewable.
It may be helpful to request that the Interlocutory Attorney participate in the discovery/settlement conference to aid the parties in considering different options for ACR. The parties need to discuss how much time would be needed for discovery, and what restrictions would be placed on the discovery phase of the proceeding. In certain cases the parties may proceed with the typical discovery phase, but then opt for an ACR trial phase. The parties will need to present the ACR agreement or stipulation in writing to the assigned Interlocutory Attorney. Then, it is in the Board's discretion to either accept or reject the parties' proposal to resolve the case according to the ACR schedule presented. Currently, ACR is only permitted upon consent of the parties and agreement of the Board (it will not be approved by unilateral motion of one party).
The more issues the parties can agree to stipulate to, the more cost savings there will be in the process. The parties can agree to forego pretrial disclosures. In addition, they can agree on certain substantive issues. For example, if the parties agree there is a likelihood of confusion between the sources of the marks, but disagree over priority, and will allow the Board to settle that single issue; there will be significant savings in the discovery, trial and briefing phase. If the parties agree to forego depositions, this too will be a great savings.
Often parties will consent to witnesses presenting direct testimony through affidavits or declarations to save costs. The standards of proof will remain the same in ACR proceedings. The plaintiff must establish its case by a preponderance of the evidence. Lastly, it appears that a party can agree to ACR, and then change its mind, if for example the parties could not agree on stipulated facts. Moreover, the Board at some point in the proceedings could determine that (based on disagreements between the parties or extensive motion practice) the case is no longer viable for resolution by ACR. If you have questions regarding ACR or other Board proceedings, please feel free to contact the firm for a courtesy consultation.