704.08(b)    Internet Materials

37 C.F.R. § 2.122(e)  Printed publications and official records.

  • (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.

In Safer, Inc. v. OMS Investments, Inc,, 94 USPQ2d 1031 (TTAB 2010) ("Safer"), the Board changed its practice regarding Internet evidence, holding that if a document obtained from the Internet identifies its date of publication or date that it was accessed and printed, and its source (e.g., the URL), it may be admitted into evidence pursuant to a notice of reliance in the same manner as a printed publication in general circulation in accordance with 37 C.F.R. § 2.122(e). [ Note 1.] Effective January 14, 2017, the Board amended 37 C.F.R. § 2.122(e)  to add a new subsection (2) to codify the Board’s decision in Safer. [ Note 2.]

A document obtained from the Internet must be publicly available; that is, it must identify its date of publication or the date it was accessed and printed, and its source (URL). [ Note 3.] As with traditional printed publications submitted by notice of reliance, the propounding party must indicate in the notice of reliance generally the relevance of those materials and associate the materials with one or more issues in the case. [ Note 4.] See TBMP § 704.02 and TBMP § 704.08(a).

Internet documents that may be introduced by notice of reliance include websites, advertising, business publications, annual reports, and studies or reports prepared for or by a party or non-party, as long as they can be obtained through the Internet as publicly available documents. This expands the types of documents that can be introduced by notice of reliance beyond printed publications in general circulation, and means that some Internet documents, such as annual reports that are publicly available, can be made of record by notice of reliance when paper versions of the annual reports are not acceptable as printed publications.

The probative value of Internet documents is limited. They can be used to demonstrate what the documents show on their face. However, documents obtained through the Internet may not be used to demonstrate the truth of what has been printed. A printout from a webpage may have more limitations on its probative value than traditional printed publications. A party may increase the weight the Board will give website evidence by submitting testimony and proof of the extent to which a particular website has been viewed. Otherwise, the document may not be considered to have much probative value.

The nonoffering party may verify the Internet document through the date and source information on the face of the document, and may rebut the probative value of the document by showing that there has been a significant change to the document as submitted by the offering party. Due to the transitory nature of the Internet, the party proffering information obtained from the Internet runs the risk that the website owner may change the information contained therein.

Internet search summaries, which essentially are links to the website pages, are not admissible by notice of reliance. [ Note 5.]

The Board strongly discourages the submission of cumulative evidence. See TBMP § 702.05. The Board has specifically stated that "It is not necessary for the parties to introduce every document obtained from an Internet search especially when it includes duplicative and irrelevant materials." [ Note 6.] Internet documents may be objectionable under Fed. R. Evid. 403 on the ground that they are "needlessly presenting cumulative evidence."

Internet printouts that are otherwise properly authenticated are acceptable to show that the statements contained therein were made or that information was reported, but not to prove the truth of the statements contained therein. [ Note 7.]

NOTES:

 1.   See, e.g., Alcatraz Media Inc. v. Chesapeake Marine Tours Inc., 107 USPQ2d 1750, 1759 (TTAB 2013) (objection to Internet printouts from petitioner's website showing the dates accessed and printed and URL information on the grounds that petitioner failed to authenticate the documents by testimony overruled), aff’d, 565 F. App’x 900 (Fed. Cir. 2014) (mem.); Coach Services Inc. v. Triumph Learning LLC, 96 USPQ2d 1600, 1604 n.4 (TTAB 2010) (excerpts from websites promoting the sale of books and software admitted into evidence pursuant to notice of reliance), aff’d-in-part, rev’d-in-part and remanded on other grounds, 668 F.3d 1356, 101 USPQ2d 1713, 1718 (Fed. Cir. 2012); Calypso Technology Inc. v. Calypso Capital Management LP, 100 USPQ2d 1213, 1216-19 (TTAB 2011) (detailed discussion of why certain documents, accompanied by adequate authentication, were admissible and why certain other documents, lacking in specifically-addressed authentication elements, were not admissible); 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).

 2.   MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES, 81 Fed. Reg. 69950, 69952 (October 7, 2016). Safer, Inc. v. OMS Investments, Inc., 94 USPQ2d 1031 (TTAB 2010) overruled the Board’s holding in Raccioppi v. Apogee Inc., 47 USPQ2d 1368 (TTAB 1998), that Internet materials are not self-authenticating and are treated differently from articles taken from the LexisNexis database with respect to whether they may be submitted as official records.

 3.   37 C.F.R. § 2.122(e)(2). See United Global Media Group, Inc. v. Tseng, 112 USPQ2d 1039, 1046-47 (TTAB 2014) (Internet printouts personal to applicant such as invoices and account information not admissible through notice of reliance even if show URLs and dates printed; press releases posted on Internet have become publicly available, thus admissible under notice of reliance); FUJIFILM SonoSite, Inc. v. Sonoscape Co., Ltd., 111 USPQ2d 1234, 1237 (TTAB 2014) (notice of reliance failed to specify the relevance of the voluminous web pages submitted under two exhibits; defect is curable); Alcatraz Media Inc. v. Chesapeake Marine Tours Inc., 107 USPQ2d 1750, 1759 (TTAB 2013) (objection to Internet printouts from petitioner’s website showing the dates accessed and printed and URL information on the grounds that petitioner failed to authenticate the documents by testimony overruled), aff’d, 565 F. App’x 900 (Fed. Cir. 2014) (mem.); Edom Laboratories Inc. v. Lichter, 102 USPQ2d 1546, 1550 (TTAB 2012) (web pages inadmissible for lack of URL and date accessed); Calypso Technology Inc. v. Calypso Capital Management LP, 100 USPQ2d 1213, 1216-19 (TTAB 2011) (detailed discussion of why certain documents, accompanied by adequate authentication, were admissible and why certain other documents, lacking in specifically-addressed authentication elements, including absent URL's or dates accessed printed, were not admissible); American Lebanese Syrian Associated Charities Inc. v. Child Health Research Institute, 101 USPQ2d 1022, 1025 (TTAB 2011) (applicant did not indicate the general relevance of opposer’s archival website and such relevance is not clear on the face of the submissions, but applicant may rely on copy of opposer’s website made of record by opposer).

 4.   37 C.F.R. § 2.122(g). MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES, 81 Fed. Reg. 69950, 69952 (October 7, 2016) ("The Office is adding new § 2.122(g) detailing the requirements for admission of evidence by notice of reliance. Section 2.122(g) provides that a notice must indicate generally the relevance of the evidence offered and associate it with one or more issues in the proceeding, but failure to do so with sufficient specificity is a procedural defect that can be cured by the offering party within the time set by Board order. The amendment codifies current case law and Office practice."). See Barclays Capital Inc. v. Tiger Lily Ventures Ltd., 124 USPQ2d 1160, 1164 (TTAB 2017) (Board applied Trademark Rule 2.122(g) in determining whether descriptions of relevance set forth in the notices of reliance were sufficient); Apollo Medical Extrusion Technologies, Inc. v. Medical Extrusion Technologies, Inc., 123 USPQ2d 1844, 1847 (TTAB 2017) (opposer’s statement of relevance of Internet evidence introduced under notice of reliance acceptable because sufficiently tailored to issues), on appeal, 3:17-CV-02150 (S.D. Cal. October 19, 2017).

 5.   See Edom Laboratories Inc. v. Lichter, 102 USPQ2d 1546, 1550 (TTAB 2012) (search summary inadmissible because it merely offers links to information not otherwise of record); Calypso Technology Inc. v. Calypso Capital Management LP, 100 USPQ2d 1213, 1219 (TTAB 2011). Cf.Frito-Lay North America, Inc. v. Princeton Vanguard, LLC, 124 USPQ2d 1184, 1193 (TTAB 2017) (Google results "are not very probative" because they "are very truncated and do not provide us with sufficient information upon which to make a clear finding."), on appeal sub nom Snyder’s Lance, Inc. v. Frito-Lay North America, Inc., No. 3:17-CV-00652 (W.D.N.C. November 6, 2017); Alcatraz Media Inc. v. Chesapeake Marine Tours Inc., 107 USPQ2d 1750, 1759 (TTAB 2013) (results from search engine introduced by testimony admissible but of limited probative value because they lack sufficient context), aff’d, 565 F. App’x 900 (Fed. Cir. 2014) (mem.); Miller v. Miller, 105 USPQ2d 1615, 1617-18 (TTAB 2013) (search results summary introduced by testimony have probative weight to the extent the results include sufficient information surrounding the term searched to show context, that Miller is a surname, and have been supplemented by other testimony).

 6.   Safer, Inc. v. OMS Investments, Inc., 94 USPQ2d 1031, 1040 n.19 (TTAB 2010). See also Alcatraz Media Inc. v. Chesapeake Marine Tours Inc., 107 USPQ2d 1750, 1759 (TTAB 2013) (relevant, representative sample of articles obtained from Internet database sufficient and preferred; parties discouraged from submitting all results), aff’d, 565 F. App’x 900 (Fed. Cir. 2014) (mem.).

 7.   See, e.g., Ayoub, Inc. v. ACS Ayoub Carpet Serv., 118 USPQ2d 1392, 1399 n.62 (TTAB 2016) (statements made on website constitute hearsay and cannot be used to establish prior use); Alcatraz Media Inc. v. Chesapeake Marine Tours Inc., 107 USPQ2d 1750, 1759 (TTAB 2013) (search engine results are only probative of what they show on their face, not for the truth of the matters contained therein), aff’d, 565 F. App’x 900 (Fed. Cir. 2014) (mem.); Swiss Watch International Inc. v. Federation of the Swiss Watch Industry, 101 USPQ2d 1731, 1735 (TTAB 2012) (Internet printouts submitted as exhibits to testimony are not hearsay).