1208.03    Internet Material, Social Media and Multimedia Materials

Material obtained through the Internet or from websites is acceptable as evidence in ex parte proceedings. It should be identified by the full address (url) for the web page, and the date it was downloaded, either by the information printed on the web page itself, or by providing this information in an Office action or an applicant’s response. Providing only the link without the material attached is not sufficient to introduce it into the record. [ Note 1.] Because website contents and search engine results are accessible by the consuming public (although search engine results may be retrieved only if members of the public enter the identical search strategy), they constitute evidence of potential public exposure. [ Note 2.] Website evidence may also be used to show the translation of a word or term. [ Note 3.] Material obtained from an applicant’s website, or that of a third party, may provide information about, for example, products or services, customers, and channels of trade, although their probative value will vary depending on the facts of the particular case. Evidence from websites located outside the United States may have probative value depending on the circumstances, including whether it is likely that U.S. consumers have been exposed to the foreign website [ Note 4.] and whether the website is in English (or has an optional English language version). [ Note 5.] The nature of the goods or services may make it more likely that U.S. consumers will encounter foreign websites in the field in question [ Note 6.] Cf. TBMP § 1208.01 regarding articles appearing in foreign publications.

A search result summary from a search engine, such as Yahoo! or Google, which shows use of a phrase as key words by the search engine, is of limited probative value. Such search results do not show use of a term or phrase as a heading, link or content on a website, or there may be insufficient text to show the context within which a term is used. [ Note 7.] Use in a search summary may indicate only that the two words in an overall phrase appear separately in the website literature. [ Note 8.] Nor does the fact that a search by an Internet search engine retrieves a large number of hits have probative value. [ Note 9.] Likewise, search engine results consisting solely of images are problematic because they provide no indicia of what image is depicted. [ Note 10.] The better practice is to provide a copy of the image from the originating website so as to provide evidentiary context. [ Note 11.] The Board will not take judicial notice of Internet searches. [ Note 12.]

Applicants and examining attorneys should submit only relevant materials that are retrieved by an Internet search. The Board discourages submissions that are unnecessarily cumulative or not probative. [ Note 13.] See TBMP § 1208.01. If a large number of web pages are submitted, it is preferable for the applicant and examining attorney to highlight in their briefs the most probative evidence. [ Note 14.] See TBMP § 1203.01.

Definitions available from an online resource, including online dictionaries and translations, that are readily available and therefore capable of being verified are acceptable. [ Note 15.] In general, evidence from online dictionaries that do not otherwise appear in printed format should be submitted prior to appeal so that the nonoffering party has an opportunity to check the reliability of the evidence and/or timely offer rebuttal evidence. [ Note 16.] The Board will not take judicial notice of such material unless the online dictionary definitions are from references that are the electronic equivalent of a print dictionary or have regular fixed editions. [ Note 17.] TBMP § 1208.04. The Board will consider evidence taken from Wikipedia so long as the nonoffering party has an opportunity to rebut that evidence by submitting other evidence that may call into question the accuracy of the particular Wikipedia information. The better practice with respect to Wikipedia evidence is to corroborate the information with other reliable sources, including Wikipedia’s sources. [ Note 18.] Similarly, the Board will consider dictionary definitions taken from Urban Dictionary (urbandictionary.com), a collaborative online dictionary of slang terms, so long as the non-offering party has an opportunity to rebut that evidence by submitting other definitions. [ Note 19.]

The Board also will consider Internet blog postings as well as individual comments thereto, and accord such evidence the appropriate probative value depending on its source of origin and its relationship to the issue at hand. [ Note 20.] In addition, the Board will consider multimedia evidence [ Note 21.], including video files submitted during examination through TEAS. [ Note 22.]

The Board may consider evidence obtained from social media sites such as Facebook, Twitter, and LinkedIn. [ Note 23.]

NOTES:

 1.   In re Olin Corp., 124 USPQ2d 1327, 1332 n.15 (TTAB 2017) ("Because the information displayed at a link's Internet address can be changed or deleted, merely providing a link to a website is insufficient to make information from that site of record."); In re Change Wind Corp., 123 USPQ2d 1453, 1462 n.8 (TTAB 2017) (providing only a web address or hyperlink is insufficient to make such materials of record); In re Powermat Inc., 105 USPQ2d 1789, 1791 (TTAB 2013) (same); In re White, 73 USPQ2d 1713, 1716 n.5 (TTAB 2004); In re International Business Machines Corp., 81 USPQ2d 1677, 1682 n.9 (TTAB 2006) (Board considered web pages that did not include web addresses because applicant did not object to them). See also In re Fantasia Distribution, Inc., 120 USPQ2d 1137, 1143 n.13 (TTAB 2016) (Board considered still frame information about a video provided in witness declaration but not video itself because providing link to YouTube video does not suffice to introduce evidence into the record); In re HSB Solomon Associates LLC, 102 USPQ2d 1269, 1274 (TTAB 2012) (Board will not utilize web address to access site and consider whatever content appears).

 2.   In re Mr. Recipe, LLC, 1087 n.4 (TTAB 2016) (stories are probative of the perceptions of the authors and of the content received by the readers); In re Fitch IBCA, Inc., 64 USPQ2d 1058, 1060 (TTAB 2002). See, e.g., In re Country Music Association, Inc., 100 USPQ2d 1824, 1829 (TTAB 2011) (printouts from web pages are not per se incompetent to show a term is generic).

 3.   In re Nieves & Nieves, LLC, 113 USPQ2d 1639, 1642 (TTAB 2015) ("We find that the articles from non-U.S. publications have some probative value in this case because it concerns the perception of the general U.S. public—the relevant consumers of the goods in the application—regarding the identity of a celebrity who lives and travels outside of the United States."); In re La Peregrina Ltd., 86 USPQ2d 1645, 1647 n.3 (TTAB 2008) (Board considered translation from www.babelfish.altavista.com); In re Brown-Forman Corp., 81 USPQ2d 1284, 1286 (TTAB 2006) (Board considered entries from WordReference.com Dictionnaire Francais-Anglais and Babel Fish Translation).

 4.   In re Bayer Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828, 1835 (Fed. Cir. 2007) (information originating on foreign websites that are accessible to the United States public may be relevant to discern U.S. consumer impression of a proposed mark); In re Florists’ Transworld Delivery Inc., 106 USPQ2d 1784, 1786 (TTAB 2013) (applicant’s relevancy objection to evidence submitted by the examining attorney obtained from foreign websites overruled because evidence regarding the significance of the color black on floral packaging "would be difficult to locate"); In re International Business Machines Corp., 81 USPQ2d 1677, 1681 n.7 (TTAB 2006) (web page from foreign source considered because case involved computer technology, and "it is reasonable to consider a relevant article regarding computer hardware" from an English-language website from another country); In re King Koil Licensing Co., 79 USPQ2d 1048, 1050 (TTAB 2006) (a consumer in the United States may turn to foreign websites when researching products they may wish to purchase); In re Remacle, 66 USPQ2d 1222, 1224 n.5 (TTAB 2002) (professionals in medicine, engineering, computers, telecommunications and other fields are likely to utilize all available resources, regardless of country of origin or medium, and the Internet is a resource that is widely available to these same professionals and to the general public in the United States). Cf. Chanel, Inc. v. Makarczyk, 110 USPQ2d 2013, 2021 n.9 (TTAB 2014) ("Articles submitted by opposer from foreign publications (e.g., The Economist) have not been considered insofar as opposer did not provide evidence of U.S. circulation").

 5.   In re Well Living Lab Inc., 122 USPQ2d 1777, 1781 n.10 (TTAB 2017) (as one factor, Board considered Canadian websites in English), on appeal, No. 17-2392 (Fed. Cir. August 3, 2017).

 6.   In re Well Living Lab Inc., 122 USPQ2d 1777, 1781 n.10 (TTAB 2017) ("Potential consumers of Applicant's scientific research services and product testing services are likely to encounter the foreign websites as part of a search for companies that offer services related to the research, testing and development of products that are designed to improve one's health and well-being, particularly research that can be applied to indoor environments such as a workplace."), on appeal, No. 17-2392 (Fed. Cir. August 3, 2017).

 7.   In re Bayer Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828, 1833 (Fed. Cir. 2007) ("Search engine results—which provide little context to discern how a term is actually used on the web page that can be accessed through the search result link—may be insufficient to determine the nature of the use of a term or the relevance of the search results to registration considerations"); In re Star Belly Stitcher, Inc., 107 USPQ2d 2059, 2062 n.4 (TTAB 2013) (Google search engine results had "limited probative value"; insufficient text to show context); In re Thomas Nelson, Inc., 97 USPQ2d 1712, 1715 (TTAB 2011) (search engine results submitted by examining attorney not considered because they did not provide sufficient context to have any probative value); In re Innovative Cos., 88 USPQ2d 1095, 1099 n.4 (TTAB 2008); In re Tea and Sympathy Inc., 88 USPQ2d 1062, 1064 n.3 (TTAB 2008); In re King Koil Licensing Co., 79 USPQ2d 1048, 1050 (TTAB 2006); In re Thomas, 79 USPQ2d 1021, 1026 (TTAB 2006) (Google hits without any context for the hits is irrelevant); In re International Business Machines Corp., 81 USPQ2d 1677, 1679 n.3 (TTAB 2006) (listings of search results from Google database of limited probative value because the excerpts are extremely truncated); In re Remacle, 66 USPQ2d 1222, 1223 n.2 (TTAB 2002) (results of search by Yahoo! search engine of little probative value, largely because insufficient text available to determine the nature of the information and, thus, its relevance). But see In re Hotels.com L.P., 87 USPQ2d 1100, 1105 n.7 (TTAB 2008), aff’d, 573 F.3d 1300, 91 USPQ2d 1532 (Fed. Cir. 2009) (although websites referenced in summary format, sufficient information in the summary to understand the context of usage).

 8.   In re Fitch IBCA, Inc., 64 USPQ2d 1058, 1060 (TTAB 2002).

 9.   In re Star Belly Stitcher, Inc., 107 USPQ2d 2059, 2062 n.3 (TTAB 2013) (while Google search engine retrieved over 100,000 results, evidence was of "limited probative value"); In re BetaBatt Inc., 89 USPQ2d 1152, 1153 n.1 (TTAB 2008) (no probative weight given to fact that search using Google search engine retrieved 22,200 hits; further, "hit list" does not corroborate that there are 22,200 relevant references).

 10.   In re Max Capital Group Ltd., 93 USPQ2d 1243, 1246 (TTAB 2010) (much of the 300 pages of Internet material submitted by applicant unhelpful because duplicative, or reference different terms, or for services in different fields or otherwise irrelevant).

 11.   In re Max Capital Group Ltd., 93 USPQ2d 1243, 1246 (TTAB 2010) (criticizing applicant for not pointing out in brief specific Internet evidence believed to be most probative of its position when significant amount of material made of record: "it is incumbent on the applicant and the examining attorney to specify in their briefs those pieces of evidence that they believe are most persuasive of their respective positions, so that the Board can consider that evidence in particular").

 12.   In re Viventia Biotech Inc., 80 USPQ2d 1376, 1377 (TTAB 2006).

 13.   In re Change Wind Corp., 123 USPQ2d 1453, 1463 n.9 (TTAB 2017).

 14.   In re Change Wind Corp., 123 USPQ2d 1453, 1463 n.9 (TTAB 2017) ("The better practice is to use the image search result page to click through to the originating website and obtain a copy of the original image on the originating website in order to provide the context from which evidentiary points the party proffering the image wishes to make can be supported.").

 15.   In re Bayer Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828, 1833 (Fed. Cir. 2007); See also In re Geller, 751 F.3d 1355, 110 USPQ2d 1867, 1868 n.2 (Fed. Cir. 2014) (court, in noting that appellants do not contest the Board’s reliance on an online dictionary definition of "terrorism," nonetheless pointed out that other more specific definitions could be found in various international treaties and national statutes but found that it was "certainly adequate for the purposes of this case.");In re Tires, Tires, Tires, Inc., 94 USPQ2d 1153 (TTAB 2009) (Board considered definition from Encarta online dictionary, made of record by examining attorney).

 16.   In re CyberFinancial.Net Inc., 65 USPQ2d 1789, 1791 n.3 (TTAB 2002); In re Total Quality Group Inc., 51 USPQ2d 1474, 1476 (TTAB 1999). Cf. In re Davey Products Pty Ltd., 92 USPQ2d 1198, 1201 (TTAB 2009) (Internet evidence submitted with denial of request for reconsideration properly of record; if applicant wanted to challenge the evidence, it should have filed a request for remand); In re Carlson, 91 USPQ2d 1198, 1199 n.2 (TTAB 2009) (if applicant wished to raise questions about probative value of online dictionary definition submitted with examining attorney’s final office action he should have submitted guidelines for dictionary with a request for reconsideration).

 17.   See In re Swatch Group Management Services AG, 110 USPQ2d 1751, 1755, n.9 (TTAB 2014) ("In this case, the definition proffered is from the online dictionary found at <merriam-webster.com>, and we take notice of it"); Boston Red Sox Baseball Club LP v. Sherman, 88 USPQ2d 1581, 1590 n.8 (TTAB 2008); In re Red Bull GmbH, 78 USPQ2d 1375, 1378 (TTAB 2006).

 18.   In re Bay State Brewing Co., 117 USPQ2d 1958, 1959 n.3, (TTAB 2016) (applicant had ample opportunity to rebut Wikipedia evidence submitted by Examining Attorney but did not); In re Hinton, 116 USPQ2d 1051, 1053 n.10 (TTAB 2015) ("The Board gives guarded consideration to evidence taken from Wikipedia, bearing in mind the limitations inherent in this reference work, so long as the non-offering party has an opportunity to rebut the evidence by submitting other evidence that may call its accuracy into question."); In re Carrier Consulting Group, 84 USPQ2d 1028, 1032-33 (TTAB 2007). See also In re Swatch Group Management Services AG, 110 USPQ2d 1751, 1754 n.4 (TTAB 2014) (Board considered Wikipedia evidence submitted with examining attorney’s first office action which applicant had an opportunity to rebut); In re Cook Medical Technologies LLC, 105 USPQ2d 1377, 1382 n.2 (TTAB 2012) (Wikipedia evidence considered because examining attorney had opportunity to rebut the evidence); In re Thor Tech, Inc., 90 USPQ2d 1634, 1636 nn.4, 6, 7 (TTAB 2009) (considering Wikipedia evidence attached to Office action and applicant’s response); In re Grand Forest Holdings Inc., 78 USPQ2d 1152, 1153, 1154 n.3 (TTAB 2006) (considering "illuminating" entry from Wikipedia submitted with Office action and subsequent update submitted by applicant).

 19.   In re Star Belly Stitcher, Inc., 107 USPQ2d 2059, 2062 n.3 (TTAB 2013) (Board considered entries obtained from the online Urban Dictionary because they were submitted early enough to afford applicant an opportunity to submit any alternative meanings or otherwise question the reliability of the definitions).

 20.   See In re Geller, 751 F.3d 1355, 110 USPQ2d 1867, 1870 (Fed. Cir. 2014) (the Board, in noting that "the probative value of the blog comments … is less than that of the articles themselves due to the anonymity of the authors," did not err in concluding that such comments shed light on the meaning of the term "Islamisation"); In re Morrison & Foerster LLP, 110 USPQ2d 1423, 1424 n.2 (TTAB 2014) ("These blog postings are from what appear to be well-established media sources with national circulation and public exposure as well as more obscure blogs for which we cannot ascertain the degree of exposure. As such, we are aware that many of the blogs may simply reflect the perception of a single author and not that of the general public.").

 21.   In re General Mills IP Holdings II, LLC, 124 USPQ2d 1016, 1025 n.56 (TTAB 2017) (Board considered audio-visual materials containing television commercials in evaluating whether applicant’s proposed single color mark had acquired distinctiveness).

 22.   In re Fantasia Distribution, Inc., 120 USPQ2d 1137, 1143 n.13 (TTAB 2016) (TEAS accepts multimedia evidence, including video files under 30 MB).

 23.   See In re Adlon Brand GmbH & Co., 120 USPQ2d 1717, 1720 (TTAB 2016) (Board considered social media evidence relating to individuals bearing the surname Adlon because "they illustrate the ways in which members of the public may be exposed to people who bear the surname ADLON.").