In a recent precedential opinion in Monster Energy Company v. Coulter Ventures, LLC, Oppositions Nos. 91233515 (parent), 91233516, 91233517, 91242202, and 91252191 (August 7, 2023), the Trademark Trial and Appeal Board (“TTAB”) shed light on the procedural intricacies of expert reports. The decision focused on sur-rebuttals, sur-sur-rebuttals, and the Board’s authority to manage docket control.
Monster Energy has opposed several applications by Coulter Ventures—a fitness equipment company—for several MONSTER-formative marks. In the consolidated opposition proceedings, two motions took center stage: Monster Energy’s motion for leave to serve a sur-rebuttal expert report and Coulter Ventures’ motion for reconsideration of the Board’s decision to strike its sur-sur-rebuttal expert report.
The “battle of the experts” commenced with Monster Energy’s expert, Dr. Sara Parikh, presenting a survey to demonstrate consumer overlap between the parties. Coulter Ventures responded with a rebuttal expert report critiquing Dr. Parikh’s survey methodology. Monster Energy, seeking to counter this, served a sur-rebuttal report by Dr. Parikh, dissecting the critique.
The crux of the matter emerged when Coulter Ventures introduced a sur-sur-rebuttal report by Mr. David Franklyn, presenting a new survey with revised stimuli. Monster Energy swiftly moved to strike this report, initiating a legal debate that raises the question: How far can the exchange of expert reports go?
The TTAB answered the question with a bright-line rule: there will be no sur-sur-rebuttal reports in trademark proceedings. In rendering its decision, the Board referenced Newegg Inc. v. Schoolhouse Outfitters, LLC, which established that sur-rebuttal expert reports can be allowed only under limited circumstances. Specifically, a sur-rebuttal report that contains new evidence, or one which would otherwise necessitate a response from the other party in the interest of fairness, is impermissible. Accordingly, the TTAB noted, “a sur-sur-rebuttal should never be necessary.” In line with this reasoning, the TTAB also excluded portions of the Parikh sur-rebuttal report that presented new evidence, bolstered Parikh’s original report, or otherwise were not in critique of the rebuttal report. The TTAB emphasized that this rule will create certainty and finality in the exchange of expert opinions. This case underscores the necessary balance between zealous advocacy and procedural rigor. In light of this bright-line rule, TTAB litigants and their counsel should work to ensure that all relevant testimony is included in their initial expert reports, and take care not to exceed the scope permitted for rebuttal reports and sur-rebuttal reports.