528.05(e) Printed Publications and Official Records
37 C.F.R. § 2.122(e) Printed publications and official records.
- (1) Printed publications, such as books and periodicals, available to the general public in libraries or of general circulation among members of the public or that segment of the public which is relevant in a particular proceeding, and official records, if the publication or official record is competent evidence and relevant to an issue, may be introduced in evidence by filing a notice of reliance on the material being offered in accordance with paragraph (g) of this section. The notice of reliance shall specify the printed publication (including information sufficient to identify the source and the date of the publication) or the official record and the pages to be read; and be accompanied by the official record or a copy thereof whose authenticity is established under the Federal Rules of Evidence, or by the printed publication or a copy of the relevant portion thereof. A copy of an official record of the Office need not be certified to be offered in evidence.
- (2) Internet materials may be admitted into evidence under a notice of reliance in accordance with paragraph (g) of this section, in the same manner as a printed publication in general circulation, so long as the date the internet materials were accessed and their source (e.g., URL) are provided.
Printed publications, as described in 37 C.F.R. § 2.122(e), include such materials as books and periodicals, available to the general public in libraries or of general circulation among members of the public or that segment of the public which is relevant under an issue in a proceeding. [ Note 1.] See TBMP § 704.08. The term "official records," as used in 37 C.F.R. § 2.122(e), refers not to a party’s company business records, but rather to the records of public offices or agencies, or records kept in the performance of duty by a public officer. [ Note 2.] See TBMP § 704.07.
Materials that qualify as printed publications or official records under 37 C.F.R. § 2.122(e) are considered essentially self-authenticating, that is, the nonoffering party is readily able to verify the authenticity of the proffered materials. [ Note 3.] As such, these materials may be relied on for purposes of summary judgment without further evidence of authenticity. [ Note 4.] A party may introduce evidence of this nature in connection with a summary judgment motion, if the evidence is competent and relevant, by: specifying the official record or printed publication (including, with respect to the printed publication, information sufficient to identify the source and date of the publication) and the pages to be read; indicating generally the relevance of the material being offered; and including a copy of the proffered material with the party’s brief. [ Note 5.]
The material need not be submitted under a notice of reliance or in connection with the affidavit or declaration of a witness, and may simply be submitted as an attachment or exhibit to a party’s supporting brief.
Internet evidence. Materials obtained from the Internet that identify: (1) dates they were accessed; and (2) their source (e.g., the URL), are considered to be self-authenticating and may be admitted into evidence in the same manner as a printed publication in general circulation in accordance with 37 C.F.R. § 2.122(e). [ Note 6.] TBMP § 704.08(b). In all cases, printed publications are only admissible for what they show on their face, and not as proof of any facts asserted therein. [ Note 7.] See TBMP § 704.08.
Materials that are not self-authenticating. Materials that do not fall within 37 C.F.R. § 2.122(e), that is, materials which are not self-authenticating in nature, may nonetheless be admissible as evidence in connection with a summary judgment motion, if competent and relevant, provided they are properly authenticated by an affidavit or declaration pursuant to Fed. R. Civ. P. 56(c)(4). See TBMP § 528.05(b). Such materials may, on summary judgment, be introduced by the affidavit or declaration of a person who can clearly and properly authenticate and identify the materials, including identifying the nature, source and date of the materials. [ Note 8.]
For further information concerning official records and printed publications, including the probative value of such evidence, see TBMP § 704.07 and TBMP § 704.08. [ Note 9.]
NOTES:
1. See 37 C.F.R. § 2.122(e). See also Paris Glove of Canada Ltd. v. SBC/Sporto Corp., 84 USPQ2d 1856, 1857 (TTAB 2007).
2. See Brooks v. Creative Arts by Calloway LLC, 93 USPQ2d 1823, 1825-26 (TTAB 2009) (applicant’s own file copies of briefs from district court case not proper under notice of reliance as official records), aff’d on other grounds, Creative Arts by Calloway, LLC v. Brooks, 09-cv-10488 (SDNY December 27, 2012), dismissed, No. 13-147 (unpublished) (2d Cir. March 7, 2013).
3. See Weyerhaeuser v. Katz, 24 USPQ2d 1230, 1232 (TTAB 1992).
4. See 37 C.F.R. § 2.122(e).
5. Cf. Hard Rock Cafe Licensing Corp. v. Elsea, 48 USPQ2d 1400, 1405 (TTAB 1998) (noting that a proffered excerpt from a newspaper or periodical is lacking in foundation and, thus, is not admissible as evidence to the extent that it is an incomplete or illegible copy, is unintelligible because it is in a language other than English, or is not fully identified as to the name and date of the published source).
6. 37 C.F.R. § 2.122(a). See Safer, Inc. v. OMS Investments, Inc., 94 USPQ2d 1031, 1039 (TTAB 2010). See also Rocket Trademarks Pty. Ltd. v. Phard S.p.A., 98 USPQ2d 1066, 1071 (TTAB 2011) (documents obtained from Internet admitted even though witness did not personally obtain or download documents); Paris Glove of Canada Ltd. v. SBC/Sporto Corp., 84 USPQ2d 1856, 1857 (TTAB 2007) (article from a trade magazine is admissible under 37 C.F.R. § 2.122(e) because, "[o]n its face, it identifies the publication and the date published").
Cf. International Association of Fire Chiefs v. H. Marvin Ginn Corp., 225 USPQ 940, 942 n.6 (TTAB 1985), rev’d on other grounds, 782 F.2d 987, 228 USPQ 528 (Fed. Cir. 1986) (excerpts of printed articles from electronic database were admissible through notice of reliance because the materials "clearly identify the excerpted articles by their dates of publication and sources, all of which are readily available in published materials"). See also In re National Data Corp., 222 USPQ 515, 517 n.3 (TTAB 1984), rev’d on other grounds, 753 F.2d 1056, 224 USPQ 749 (Fed. Cir. 1085) (magazine articles obtained through search of electronic database admissible because they were clearly identified and therefore there was "no credibility problem"); In re Capital Formation Counselors, Inc., 219 USPQ 916, 918 n.3 (TTAB 1983) (printed articles from electronic database are clearly identified by name and date; therefore applicant could have easily checked the articles).
7. See Boyds Collection Ltd. v. Herrington & Co., 65 USPQ2d 2017, 2020 n.8 (TTAB 2008); Exxon Corp. v. Fill-R-Up Systems, Inc., 182 USPQ 443, 445 (TTAB 1974).
8. See Fed. R. Civ. P. 56(c)(1)(A) and Fed r. Civ. P. P. 56(c)(4); Paris Glove of Canada Ltd. v. SBC/Sporto Corp., 84 USPQ2d 1856, 1864 n.8 (TTAB 2007); Westrex Corp. v. New Sensor Corp., 83 USPQ 1215, 1217 (TTAB 2007). Please Note: The 2010 amendment to Fed. R. Civ. P. 56(c)(2) "eliminated the unequivocal requirement that documents submitted in support of a summary judgment motion must be authenticated." Akers v. Beal Bank, 845 F. Supp. 2d 238, 243 (D.D.C. 2012). The lack of authentication is now grounds for objection, but only on the basis that the evidence cannot be presented in a form that would be admissible in evidence. Fed. R. Civ. P. 56(c)(2), Committee Notes on Rules - 2010 amendment ("The objection functions much as an objection at trial, adjusted for the pretrial setting. The burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated.").
9. See Safer, Inc. v. OMS Investments, Inc., 94 USPQ2d 1031, 1039 (TTAB 2010) for a discussion of the probative weight given evidence obtained from the Internet.