704.08(c)    Other Printed Materials

Certain printed publications qualify for submission by notice of reliance under 37 C.F.R. § 2.122(e)  because they are considered essentially self-authenticating. [ Note 1.] That is, permanent sources for the publications are identified and the nonoffering party is readily able to verify the authenticity of the documents. [ Note 2.] The Board also deems a document obtained from the Internet that displays a date and its source as presumptively true and genuine. [ Note 3.] Materials that do not fall within 37 C.F.R. § 2.122(e), that is, materials that are not admissible by notice of reliance, may nevertheless be introduced into evidence through the testimony of a person who can clearly and properly authenticate and identify the materials, including identifying the nature, source and date of the materials. [ Note 4.] Trade inscriptions applied to a product or packaging or other materials affixed in the course of business may be self-authenticating. [ Note 5.] Even if properly made of record, however, such materials are only probative of what they show on their face, not for the truth of the matters contained therein, unless a competent witness has testified to the truth of such matters. [ Note 6.]

NOTES:

 1.   See Swatch AG v. M. Z. Berger & Co., 108 USPQ2d 1463, 1466 (TTAB 2013) (applicant’s objection to article from the magazine Women’s Wear Daily overruled; periodicals are considered self-authenticating pursuant to Fed. R. Evid. 902(6) and may be admitted via notice of reliance), aff’d, 787 F.3d 1368, 114 USPQ2d 1892 (Fed. Cir. 2015); Paris Glove of Canada Ltd. v. SBC/Sporto Corp., 84 USPQ2d 1856, 1857 (TTAB 2007); Harjo v. Pro-Football Inc., 50 USPQ2d 1705, 1722 (TTAB 1999), rev'd on other grounds, 284 F. Supp. 2d 96, 68 USPQ2d 1225 (D.D.C. 2003), remanded, 415 F.3d 44, 75 USPQ2d 1525 (D.C. Cir. 2005), and aff’d, 565 F.3d 880, 90 USPQ2d 1593 (D.C. Cir. 2009), cert. denied, 130 S. Ct. 631 (2009).

 2.   See Weyerhaeuser v. Katz, 24 USPQ2d 1230, 1232 (TTAB 1992).

 3.   37 C.F.R. § 2.122(e). See MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES, 81 Fed. Reg. 69950, 69963-64 (October 7, 2016) ("The Office is adding new § 2.122(e)(2) permitting admission of internet materials into evidence by notice of reliance and providing requirements for their identification. The amendment codifies current case law and Office practice."), and Safer, Inc. v. OMS Investments, Inc., 94 USPQ2d 1031, 1039 (TTAB 2010).

 4.   See Starbucks U.S. Brands LLC v. Ruben, 78 USPQ2d 1741, 1748 (TTAB 2006) (excerpts taken from Internet websites sought to be introduced during testimony deposition not properly authenticated because witness was not aware of the parameters of the Internet search and was not able to name the individual who conducted the Internet search).

 5.   See Fed. R. Evid. 902(7); Top Tobacco LP v. North Atlantic Operating Co., 101 USPQ2d 1163, 1167-68 (TTAB 2011) (although deponent failed to authenticate exhibits made up of product packaging, they were found to be self-authenticating).

 6.   See ShutEmDown Sports Inc. v. Lacy, 102 USPQ2d 1036 (TTAB 2012) (hangtag by itself, without any testimony describing how it was used, merely demonstrates that the hangtag existed at some point in time; not that the mark was actually placed on goods or that goods bearing the hangtag were offered for sale in commerce); Top Tobacco LP v. North Atlantic Operating Co., 101 USPQ2d 1163, 1168 (TTAB 2011) (trade designations on materials of limited probative value because they do not establish they were actually used in commerce or the degree of consumer exposure); Calypso Technology Inc. v. Calypso Capital Management LP, 100 USPQ2d 1213, 1217, 1220-21 n.14 (TTAB 2011) (plaintiff's own printed publications and printouts from plaintiff's webpage are not evidence of statements made therein); Stuart Spector Designs, Ltd. v. Fender Musical Instruments Corp., 94 USPQ2d 1549 (TTAB 2009) (articles and advertisements considered for whatever they may show on their face, but not for the truth of the matters asserted); Tea Board of India v. Republic of Tea Inc., 80 USPQ2d 1881, 1884 n.8 (TTAB 2006) (publications only admissible for what they show on their face); Standard Knitting Ltd. v. Toyota Jidosha Kabushiki Kaisha, 77 USPQ2d 1917, 1931 n.26 (TTAB 2006) (Lexis/Nexis articles submitted by notice of reliance to demonstrate merchandising activities of applicant and other third parties is inadmissible as hearsay); Blue Man Productions Inc. v. Tarmann, 75 USPQ2d 1811, 1813 (TTAB 2005) (printed publications and news reports hearsay if offered to prove the truth of the statements made therein, but acceptable to show that the stories have been circulated to the public), rev’d on other grounds, slip op. No. 05-2037 (D.D.C. Apr. 3, 2008); and Sports Authority Michigan Inc. v. PC Authority Inc., 63 USPQ2d 1782, 1798 (TTAB 2001) (not evidence of use but may have some probative value to show the meaning of a mark in the same way as third-party registrations).