704.08(a) Traditional Printed Publications
Certain types of printed publications may be introduced into evidence in a Board inter partes proceeding by notice of reliance. Specifically, 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 under an issue in a proceeding, if the publication is competent evidence and relevant to an issue in the proceeding, may be introduced in evidence by filing a notice of reliance thereon during the testimony period of the offering party. [ Note 1.] The notice must specify the printed publication, including information sufficient to identify the source and the date of the publication, and the pages to be read; indicate generally the relevance of the material being offered and associate it with one or more issues in the case; and be accompanied by the printed publication or a copy of the relevant portion thereof. [ Note 2.]
In lieu of the actual "printed publication or a copy of the relevant portion thereof," the notice of reliance may be accompanied by an electronically generated document which is the equivalent of the printed publication or relevant portion, as, for example, by a printout from the LexisNexis or Westlaw computerized library of an article published in a newspaper or magazine of general circulation. [ Note 3.]
In case of reasonable doubt as to whether printed publications submitted by notice of reliance under 37 C.F.R. § 2.122(e) are "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 the proceeding, the burden of showing that they are so available lies with the offering party. [ Note 4.] The offering party need only make such a showing if its adversary has challenged its submission; it need not make such a showing as part of its original submission.
For examples of cases concerning the admissibility of specific materials, by notice of reliance, as "printed publications" under 37 C.F.R. § 2.122(e), see cases cited in the note below. [ Note 5.]
Printed publications made of record by notice of reliance under 37 C.F.R. § 2.122(e) are admissible and probative only for 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.] While printed publications made of record by notice of reliance and without witness testimony cannot be considered for proving the truth of the matter, they may have some relevance for what they show on their face, regardless of whether the statements are true or false. [ Note 7.]
Although the types of printed publications described above may be made of record by notice of reliance under 37 C.F.R. § 2.122(e), they may, alternatively, be made of record by appropriate identification and introduction during the taking of testimony, or by stipulation of the parties. [ Note 8.] These latter two methods may also be used for the introduction of printed publications that are not admissible by notice of reliance under 37 C.F.R. § 2.122(e). [ Note 9.]
For information concerning the raising of objections to notices of reliance and materials filed thereunder, see TBMP § 533 and TBMP § 707.02.
Materials improperly offered under 37 C.F.R. § 2.122(e) may nevertheless be considered by the Board if the adverse party (parties) does not object to their introduction or itself treats the materials as being of record. [ Note 10.]
The party who submits printed publications must ensure that the evidence is legible, with each page displayed so it can be read from top to bottom, and that the evidence has been entered into the record. [ Note 11.] The submitting party must also ensure that such evidence is complete. [ Note 12.]
NOTES:
1. 37 C.F.R. § 2.122(e) and 37 C.F.R. § 2.122(g) . See Hunter Publishing Co. v. Caulfield Publishing Ltd., 1 USPQ2d 1996, 1997 n.2 (TTAB 1986) (while subject matter may be of interest to the general public such materials are not necessarily in general circulation); Mack Trucks, Inc. v. California Business News, Inc., 223 USPQ 164, 165 n.5 (TTAB 1984) (objection that applicant failed to indicate relevance of materials overruled); Questor Corp. v. Dan Robbins & Associates, Inc., 199 USPQ 358, 361 n.3 (TTAB 1978) (notice of reliance on printed material filed after oral hearing untimely), aff’d, 599 F.2d 1009, 202 USPQ 100 (CCPA 1979); Plus Products v. Natural Organics, Inc., 204 USPQ 773, 775 n.5 (TTAB 1979) (duplicates of printed publications submitted with brief which had been properly filed by notice of reliance during testimony period considered); Glamorene Products Corp. v. Earl Grissmer Co., 203 USPQ 1090, 1092 n.5 (TTAB 1979) (rule provides safeguard that party against whom evidence is offered is readily able to corroborate or refute authenticity of what is proffered); Wagner Electric Corp. v. Raygo Wagner, Inc., 192 USPQ 33, 36 n.10 (TTAB 1976) (plaintiff’s catalogs and house publications not considered because it was not shown they are "available to the general public in libraries or in general circulation;" advertisements permitted if publication in which they appeared and dates are provided to allow party to verify authenticity); Jetzon Tire & Rubber Corp. v. General Motors Corp., 177 USPQ 467, 468 n.3 (TTAB 1973) (publication shown to be available in public library properly submitted under 37 C.F.R. § 2.122(e), even though it may constitute hearsay or be of dubious relevance).
2. See 37 C.F.R. § 2.122(e) and 37 C.F.R. § 2.122(g). See also Panda Travel Inc. v. Resort Option Enterprises Inc., 94 USPQ2d 1789, 1793 (TTAB 2009) (statement that documents are introduced to show use of opposer’s marks sufficient to indicate relevance); 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"); Blue Man Productions Inc. v. Tarmann, 75 USPQ2d 1811, 1813 (TTAB 2005) (general statement of relevance sufficient for a collection of materials), rev’d on other grounds, slip op. No. 05-2037 (D.D.C. Apr. 3, 2008); Harjo v. Pro-Football Inc., 50 USPQ2d 1705, 1721 n.50 (TTAB 1999) (excerpts that were unidentified as to either source or date were not considered, as the extent to which such material is genuine and available to the public could not be ascertained), 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); Hard Rock Cafe Licensing Corp. v. Elsea, 48 USPQ2d 1400, 1405 (TTAB 1998) (finding it sufficient that copies of the excerpted articles contained notations either on the copies themselves or in the notice of reliance as to the source and date of the copied articles, but 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); Original Appalachian Artworks Inc. v. Streeter, 3 USPQ2d 1717, 1717 n.3 (TTAB 1987) (printed advertisement not identified with the specificity required to be considered a printed publication); Beech Aircraft Corp. v. Lightning Aircraft Co., 1 USPQ2d 1290, 1291 (TTAB 1986) (notice of reliance received without appended copy of printed publication).
3. SeeBarclays Capital Inc. v. Tiger Lily Ventures Ltd., 124 USPQ2d 1160, 1166 (TTAB 2017) (citing Alcatraz Media Inc. v. Chesapeake Marine Tours Inc., 107 USPQ2d 1750, 1759 (TTAB 2013) (Board "routinely accepts printouts of articles obtained from the LexisNexis database, when filed under notice of reliance, so long as the date and source of each article are clear.")), aff’d, 565 F. App’x 900 (Fed. Cir. 2014) (mem.); Weyerhaeuser Co. v. Katz, 24 USPQ2d 1230 (TTAB 1992); International Association of Fire Chiefs, Inc. v. H. Marvin Ginn Corp., 225 USPQ 940, 942 n.6 (TTAB 1985) (NEXIS printout of excerpted stories published in newspapers, magazines, etc. are admissible because excerpts identify their dates of publication and sources and since complete reports, whether through the same electronic library or at a public library, are available for verification), rev’d on other grounds, 782 F.2d 987, 228 USPQ 528 (Fed. Cir. 1986).
Cf. In re Omaha National Corp., 819 F.2d 1117, 2 USPQ2d 1859, 1860 (Fed. Cir. 1987) (electronic excerpts are not hearsay because articles were not used to support the truth of the statements therein but to show descriptive usage of term); R. J. Reynolds Tobacco Co. v. Brown & Williamson Tobacco Corp., 226 USPQ 169, 174-75 (TTAB 1985) (printouts from databases which themselves comprise abstracts or syntheses of published documents unlike the actual text of the documents, are hearsay as to the context of a term).
4. See Calypso Technology Inc. v. Calypso Capital Management LP, 100 USPQ2d 1213, 1217-1218 (TTAB 2011) ("Certainly if these materials are in general circulation it was incumbent on plaintiff to show this in response to defendant’s objection."); Glamorene Products Corp. v. Earl Grissmer Co., 203 USPQ 1090, 1092 n.5 (TTAB 1979) (private promotional literature is not presumed to be publicly available within the meaning of the rule).
5. Barclays Capital Inc. v. Tiger Lily Ventures Ltd., 124 USPQ2d 1160, 1165 (TTAB 2017) (financial reports generally no, but financial report included as a segment of a newswire service report from Lexis/Nexis database - yes, if date and source of each article is clear; press releases - no); Luxco, Inc. v. Consejo Regulador del Tequila, A.C., 121 USPQ2d 1477, 1506 n.185 (TTAB 2017) (articles now available only through subscription to The New York Times archives – yes), appeal dismissed per stipulation, No. 17-00345 (E.D. Va. August 24, 2017); Swatch AG (Swatch SA) (Swatch Ltd.) v. M.Z. Berger & Co., 108 USPQ2d 1463, 1466 (TTAB 2013) (magazine article explaining the results of a consumer brand awareness survey – yes), aff’d, 787 F.3d 1368, 114 USPQ2d 1892 (Fed. Cir. 2015); Research In Motion Ltd. v. NBOR Corp., 92 USPQ2d 1926, 1929 (TTAB 2009) (annual reports - no; opposer’s file copies of financial reports submitted to SEC - no); Stuart Spector Designs, Ltd. v. Fender Musical Instruments Corp., 94 USPQ2d 1549 (TTAB 2009) (foreign publications without a showing that publications are in general circulation in the United States - no; Spanish language publication shown to be in general circulation in the United States - yes; press clippings - no; distribution of in-house publications/catalogs and auction catalogs to retailers, trade shows, guitar clinics and individuals upon request does not constitute "general circulation"); Hiraga v. Arena, 90 USPQ2d 1102, 1104 (TTAB 2009) (invoices and annual catalog - no); Life Zone Inc. v. Middleman Group Inc., 87 USPQ2d 1953, 1956-59 (TTAB 2008) (brochures, periodic newsletters, materials used in seminars and conferences showing topics of discussion, recently created marketing materials, materials used in radio ads and interviews, testimonials from customers in affidavit form - no); L.C. Licensing Inc. v. Berman, 86 USPQ2d 1883, 1886, n.6 (TTAB 2008) (letters and emails - no); Tri-Star Marketing LLC v. Nino Franco Spumanti S.R.L., 84 USPQ2d 1912, 1914 (TTAB 2007) (excerpt from wine atlas - yes; certificate awarded to defendant from Italian government - no; copy of disciplinary rules governing wine production in geographic area - no); Wet Seal Inc. v. FD Management Inc., 82 USPQ2d 1629, 1632 (TTAB 2007) (annual reports, financial statements, advertising invoices and other advertising documents - no); Carefirst of Maryland Inc. v. FirstHealth of the Carolinas Inc., 77 USPQ2d 1492, 1500 (TTAB 2005) (opposer’s newsletters and brochures - no), aff’d, 479 F.3d 825, 81 USPQ2d 1919 (Fed. Cir. 2007); Harjo v. Pro-Football Inc., 50 USPQ2d 1705, 1722 n.54 (TTAB 1999) (advertisements in newspapers or magazines available to the general public in libraries or in general circulation - yes), rev’d, 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); Hard Rock Café Licensing Corp. v. Elsea, 48 USPQ2d 1400, 1403 (TTAB 1998) (press releases, press clippings, studies prepared for a party, affidavits or declarations, or product information - no); Weyerhaeuser Co. v. Katz, 24 USPQ2d 1230, 1232 n.5 (TTAB 1992) (trademark search reports - no); Midwest Plastic Fabricators Inc. v. Underwriters Laboratories Inc., 12 USPQ2d 1267, 1270 n.5 (TTAB 1989), aff’d, 906 F.2d 1568, 15 USPQ2d 1359 (Fed. Cir. 1990) (annual reports - no); Hunter Publishing Co. v. Caulfield Publishing Ltd., 1 USPQ2d 1996, 1997 n.2 (TTAB 1986) (conference papers, dissertations, and journal papers - no); Colt Industries Operating Corp. v. Olivetti Controllo Numerico S.p.A., 221 USPQ 73, 74 n.2 (TTAB 1983) (press releases-- no); Jeanne-Marc, Inc. v. Cluett, Peabody & Co., 221 USPQ 58, 59 n.4 (TTAB 1984) (annual reports - no); Logicon, Inc. v. Logisticon, Inc., 205 USPQ 767, 768 n.6 (TTAB 1980) (annual report even if in some libraries, or available on request - no; magazine articles - yes); Glamorene Products Corp. v. Earl Grissmer Co., 203 USPQ 1090, 1092 n.5 (TTAB 1979) (promotional literature - no); Hunt-Wesson Foods, Inc. v. Riceland Foods, Inc., 201 USPQ 881, 883 (TTAB 1979) (promotional literature - no); Wagner Electric Corp. v. Raygo Wagner, Inc., 192 USPQ 33, 36 n.10 (TTAB 1976) (catalogs and other house publications - no); Andrea Radio Corp. v. Premium Import Co., 191 USPQ 232, 234 (TTAB 1976) (annual reports, promotional brochures, price list, reprints of advertisements, and copies of advertising mats - no); Manpower, Inc. v. Manpower Information Inc., 190 USPQ 18, 21 (TTAB 1976) (telephone directory pages, indexes from United States Code Annotated, and dictionary pages - yes); Litton Industries, Inc. v. Litronix, Inc., 188 USPQ 407, 408 n.5 (TTAB 1975) (annual reports - no); Exxon Corp. v. Fill-R-Up Systems, Inc., 182 USPQ 443, 445 (TTAB 1974) (credit card applications, handouts, and flyers - no; articles from trade publications and other magazines - yes); Minnesota Mining & Manufacturing Co. v. Stryker Corp., 179 USPQ 433, 434 (TTAB 1973) (annual reports, product booklets, and product brochures - no); Ortho Pharmaceutical Corp. v. Hudson Pharmaceutical Corp., 178 USPQ 429, 430 n.2 (TTAB 1973) (article from "Memoirs of the University of California" - no, since publication not shown to be available to the general public).
6. See, e.g., In re Omaha Nat’l Corp., 819 F.2d 1117, 2 USPQ2d 1859, 1860 (Fed. Cir. 1987) (articles are not used to support the truth of the statements therein but to show descriptive usage of term); Gravel Cologne, Inc. v. Lawrence Palmer, Inc., 469 F.2d 1397, 176 USPQ 123, 123 (CCPA 1972) (advertisement from newspaper only showed promotion of the product on the day the publication issued); Ricardo Media Inc. v. Inventive Software, LLC, 2019 USPQ2d 311355, at *2 (TTAB 2019) (unaccompanied by testimony, articles from printed publications may not be considered for the truth of the matters asserted but are admissible for what they show on their face); Schiedmayer Celesta GmbH v. Piano Factory Group, Inc., 2019 USPQ2d 341894, at *8 n.14 (TTAB 2019) (printed publications not admissible for the truth of the matters asserted therein), aff’d, 11 F.4th 1363, 2021 USPQ2d 913 (Fed. Cir. 2021); TV Azteca, S.A.B. de C.V. v. Martin, 128 USPQ2d 1786, 1790-91 (TTAB 2018) (newspaper articles and blog post submitted with no supporting testimony or other evidence are hearsay; "residual hearsay" exception of Fed. R. Evid. 807(a) does not apply); Ayoub, Inc. v. ACS Ayoub Carpet Serv., 118 USPQ2d 1392, 1399 n.65 (TTAB 2016) (telephone directory listings themselves are not hearsay; while the Yellow Pages display advertisements may not be considered for the truth of the matters asserted therein, they do show on their face that the public may have been exposed to the advertisements); City Bank v. OPGI Management GP Inc./Gestion OPGI Inc., 106 USPQ2d 1668, 1672 (TTAB 2013) (testimony failed to expand the probative value of business brochure prepared by third-party; document is admissible solely for what it shows on its face and cannot be considered to prove the truth of any matter stated therein); Swiss Watch International Inc. v. Federation of the Swiss Watch Industry, 101 USPQ2d 1731, 1734 n.8 (TTAB 2012) (noting that printed publications submitted in a foreign language without translations are of limited probative value); Brooks v. Creative Arts By Calloway LLC, 93 USPQ2d 1823, 1827 (TTAB 2010) (truth of matters asserted in printed publications not considered; printed publications considered as showing continued consumer exposure of opposer’s mark in connection with opposer’s name), aff’d on other grounds , Creative Arts by Calloway, LLC v. Brooks, No. 09-cv-10488 (S.D.N.Y. Dec. 27, 2012), dismissed, slip op. No. 13-147 (2d Cir. March 7, 2013); Safer Inc. v. OMS Investments Inc., 94 USPQ2d 1031, 1037 n.14 (TTAB 2010); Syngenta Crop Protection Inc. v. Bio-Chek LLC, 90 USPQ2d 1112, 1117 n.7 (TTAB 2009) (printed publications probative only for 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); 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1717 n.2 (TTAB 2007); L.C. Licensing Inc. v. Berman, 86 USPQ2d 1883, 1887 (TTAB 2008) (newspaper article probative only for what it shows on its face, not for the truth of the matters contained therein); Midwest Plastic Fabricators Inc. v. Underwriters Laboratories Inc., 12 USPQ2d 1267, 1270 n.5 (TTAB 1989) (annual report considered stipulated into evidence only for what it showed on its face), aff’d, 906 F.2d 1568, 15 USPQ2d 1359 (Fed. Cir. 1990); Harjo v. Pro-Football Inc., 50 USPQ2d 1705, 1721 n.50 (TTAB 1999) (evidence of the manner in which the term is used in the articles and of the fact that the public has been exposed to the articles and may be aware of the information contained therein), rev’d, 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); Logicon, Inc. v. Logisticon, Inc., 205 USPQ 767, 768 n.6 (TTAB 1980) (magazine article limited to what it showed on its face); Volkswagenwerk AG v. Ridewell Corp., 201 USPQ 410 (TTAB 1979) (advertisement submitted with notice of reliance only showed that advertisement appeared on that date in that journal and does not show customer familiarity with marks nor actual sales); Food Producers, Inc. v. Swift & Co., 194 USPQ 299, 301 n.2 (TTAB 1977) (publications limited to their face value because no opportunity to ascertain basis for information or confront and cross-examine individuals responsible therefor); Wagner Electric Corp. v. Raygo Wagner, Inc., 192 USPQ 33, 36 n.10 (TTAB 1976) (advertisements were only probative of fact that opposer advertised its goods under the mark in the publications on those dates); Litton Industries, Inc. v. Litronix, Inc., 188 USPQ 407, 408 n.5 (TTAB 1975) (even if annual reports were admissible as printed publications, they would only be probative of fact that they are opposer’s annual reports for the years shown thereon); Otis Elevator Co. v. Echlin Manufacturing Co., 187 USPQ 310, 312 n.4 (TTAB 1975) (magazine article showed only that the goods under the mark were the subject of the article in that publication); Exxon Corp. v. Fill-R-Up Systems, Inc., 182 USPQ 443, 445 (TTAB 1974) (articles from trade publications admissible to show that they appeared in the publication on a certain date and that they contained certain information, but not that the information is true).
7. Spiritline Cruises LLC v. Tour Management Services, Inc., 2020 USPQ2d 48324, at *2, *11 (TTAB 2020) ("[S]uch materials are frequently competent to show, on their face, matters relevant to trademark claims (such as public perception), regardless of whether the statements are true or false"; third-party documentary evidence corroborates pervasive use by others in the industry) (quoting Harry Winston S.A. v. Bruce Winston Gem Corp., 111 USPQ2d 1419, 1428 (TTAB 2014)); Ricardo Media Inc. v. Inventive Software, LLC, 2019 USPQ2d 311355, at *2 (TTAB 2019) ("sometimes what Internet printouts and printed publications show on their face is relevant to trademark cases, including likelihood of confusion cases"); Robinson v. Hot Grabba Leaf, LLC, 2019 USPQ2d 149089, at *6-7 (TTAB 2019) (third-party references are probative evidence that the relevant public perceives the terms "grabba" and "grabba leaf" to, at a minimum, immediately convey information about an ingredient or characteristic of tobacco, or tobacco products, including cigar wraps; urban dictionary definition probative when considered in context of third-party use in record), cancellation order vacated on default judgment, No. 0:19-cv-61614-DPG (S.D. Fla. Dec. 17, 2019); Ayoub, Inc. v. ACS Ayoub Carpet Service, 118 USPQ2d 1392, 1399 n.62, 1403 (TTAB 2016) (although website printouts and printed materials could not be considered for the truth of the matter, these multiple sources did corroborate third-party use); Harry Winston, Inc. v. Bruce Winston Gem Corp., 111 USPQ2d 1419, 1427-28 (TTAB 2014) (although printed publications were not considered for the truth of the matter, "such publications can be used to demonstrate promotion of the mark by its owner, public perceptions of the mark by others, and other issues relevant to this proceeding.").
See also Piano Factory Grp., Inc. v. Schiedmayer Celesta GmbH, 11 F.4th 1363, 2021 USPQ2d 913, at *13 (Fed. Cir. 2021) ("The Board did not err in relying on recent publications or the history of the Schiedmayer companies to draw inferences as to Schiedmayer Celesta's fame as of 2007.");
8. See Pass & Seymour, Inc. v. Syrelec, 224 USPQ 845, 846 (TTAB 1984) (objection on ground that no notice of reliance was filed was not well taken where party had introduced the materials in connection with testimony); Hayes Microcomputer Products, Inc. v. Business Computer Corp., 219 USPQ 634, 635 n.3 (TTAB 1983) (same).
9. See, e.g., Midwest Plastic Fabricators Inc. v. Underwriters Laboratories Inc., 12 USPQ2d 1267, 1270 n.5 (TTAB 1989) (annual reports), aff’d, 906 F.2d 1568, 15 USPQ2d 1359 (Fed. Cir. 1990); Colt Industries Operating Corp. v. Olivetti Controllo Numerico S.p.A., 221 USPQ 73, 74 n.2 (TTAB 1983) (copies of agreements, press releases, shipping documents and foreign registrations); Minnesota Mining & Manufacturing Co. v. Stryker Corp., 179 USPQ 433, 434 (TTAB 1973) (annual reports, product booklets and brochures).
10. See, e.g., Orange Bang, Inc. v. Olé Mexican Foods, Inc., 116 USPQ2d 1102, 1108 n.14 (TTAB 2015) (because non-offering party treated sales history reports as being of record, Board construed exhibit as having been stipulated into the record by the parties); L.C. Licensing Inc. v. Berman, 86 USPQ2d 1883, 1886 n.6 (TTAB 2008) (letters and emails considered as stipulated into the record because opposer treated materials as being of record, setting forth in its brief that such materials are part of the evidence of record); Black & Decker Corp. v. Emerson Electric Co., 84 USPQ2d 1482, 1485 (TTAB 2007) (Internet evidence considered because party stipulated at deposition that it would not contest the authenticity of web pages and treated the evidence as being of record, stating in its brief that the Internet evidence is part of other party’s evidence of record); Genesco Inc. v. Martz, 66 USPQ2d 1260, 1266 (TTAB 2003) (documents construed as being offered under 37 C.F.R. § 2.122(e) and deemed to be of record despite lack of information as to source and date since applicant did not object to the materials and moreover treated them as of record; however, probative value of such materials necessarily limited due to lack of information as to source and date); Plyboo America Inc. v. Smith & Fong Co., 51 USPQ2d 1633, 1634 n.3 (TTAB 1999) (plaintiff did not object to introduction of curriculum vitae, advertising literature, printout of page from website by notice of reliance and treated materials as of record); U.S. West Inc. v. BellSouth Corp., 18 USPQ2d 1307, 1309 n.4 (TTAB 1990) (opposer’s improper subject matter considered where applicant expressly agreed to its authenticity and accuracy); Midwest Plastic Fabricators Inc. v. Underwriters Laboratories Inc., 12 USPQ2d 1267, 1270 n.5 (TTAB 1989) (neither party objected to the annual reports submitted by the other party), aff’d, 906 F.2d 1568, 15 USPQ2d 1359 (Fed. Cir. 1990); Hunter Publishing Co. v. Caulfield Publishing Ltd., 1 USPQ2d 1996, 1997 n.2 (TTAB 1986) (matter improper for notice of reliance and for rebuttal considered); Jeanne-Marc, Inc. v. Cluett, Peabody & Co., 221 USPQ 58 (TTAB 1984) (annual reports and responses to document production request considered); Conde Nast Publications Inc. v. Vogue Travel, Inc., 205 USPQ 579, 580 n.5 (TTAB 1979) (various documents constituting improper subject matter considered where no objection was raised and adverse party specifically addressed the materials in its brief); Plus Products v. Natural Organics, Inc., 204 USPQ 773, 775 n.5 (TTAB 1979) (untimely, but no objection or prejudice).
Cf. Original Appalachian Artworks Inc. v. Streeter, 3 USPQ2d 1717, 1717 n.3 (TTAB 1987) (improper subject matter excluded where adverse party, while not objecting to the improperly offered materials, did not treat the materials as being of record); Hunt-Wesson Foods, Inc. v. Riceland Foods, Inc., 201 USPQ 881, 883 (TTAB 1979) (improper subject matter excluded, although no objection).
11. 37 C.F.R. § 2.126(a)(2); MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES, 81 Fed. Reg. 69950, 69952 (October 7, 2016) ("The Office is adding new § 2.126(a)(2) to require that exhibits pertaining to an electronic submission must be made electronically as an attachment to the submission and must be clear and legible. The amendment codifies the use of electronic filing."). See, e.g., RxD Media, LLC v. IP Application Development LLC, 125 USPQ2d 1801, 1806 n.16 (TTAB 2018) ("Illegible evidence is given no consideration."), aff’d, 377 F. Supp. 3d 588 (E.D. Va. 2019), aff’d, 986 F.3d 361, 2021 USPQ2d 81 (4th Cir. 2021). See also Alcatraz Media, Inc. v. Chesapeake Marine Tours, Inc., 107 USPQ2d 1750, 1753 n.6 (TTAB 2013) (citing Hard Rock Café Licensing Corp. v. Elsea, 48 USPQ2d 1400, 1404 (TTAB 1998) ("It is reasonable to assume that it is opposer’s responsibility to review the documents it submits as evidence to ensure that such submissions meet certain basic requirements, such as that they are legible … .")), aff’d, 565 F. App’x 900 (Fed. Cir. 2014) (mem.); Weider Publications, LLC v. D&D Beauty Care Co., 109 USPQ2d 1347, 1351-52 (TTAB 2014) (duty of the party making submissions to the Board via ESTTA to ensure that they have been entered into the trial record), appeal dismissed per stipulation, No. 14-1461 (Fed. Cir. Oct. 10, 2014).
12. Luxco, Inc. v. Consejo Regulador del Tequila, A.C., 121 USPQ2d 1477, 1506 n.185 (TTAB 2017) (opposer failed to introduce full copies of the articles into evidence in its rebuttal notice of reliance so Board relied on copies submitted with applicant’s notices of reliance), appeal dismissed per stipulation, No. 17-00345 (E.D. Va. August 24, 2017).