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.] Providing only a web address or a hyperlink without the material attached is not sufficient to introduce it into the record. [ Note 3.] For information about Internet materials in ex parte appeals, see TBMP § 1208.03.

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) either on its face or on the notice of reliance cover sheet. [ Note 4.] 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 5.] 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. [ Note 6.] 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. [ Note 7.] Otherwise, the document may not be considered to have much probative value. [ Note 8.]

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 are not admissible by notice of reliance. [ Note 9.]

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 10.] 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 11.] Internet printouts, may have some relevance for what they show on their face, regardless of whether the statements are true or false. [ Note 12.]

For Internet printouts from the Internet Archive Wayback Machine, the degree of authentication required depends on what the party offering the evidence seeks to establish. If a party seeks to rely on Wayback Machine printouts only to demonstrate what the webpages show on their face, they generally can be admissible under a notice of reliance as self-authenticating Internet evidence if the webpages display a URL and date. [ Note 13.] If a party wishes to rely on the Wayback Machine evidence not just for what it shows on its face but to establish that the webpages submitted were displayed on various dates in the past, ("the truth of the capture of the archive date"), witness testimony must be offered to authenticate the printouts and lay the foundation that the webpage printouts are business records. [ Note 14.] If a party wishes to go further and rely on the pages for the truth of the underlying webpage contents, which would constitute hearsay, competent witness testimony as to their accuracy may be required. [ Note 15.] The authenticity and accuracy of the Wayback Machine captures can be further corroborated by witnesses familiar with the webpages themselves. [ Note 16.]

The party who submits Internet materials must ensure that the evidence is legible, and that the evidence has been entered into the record. [ Note 17.] The submitting party may submit only the relevant portions of a website so long as the portions are sufficient to show their context. [ Note 18.]

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.   See Chutter, Inc. v. Great Management Group, LLC, 2021 USPQ2d 1001, at *32 n.67 (TTAB 2021) (article and accompanying video referenced by hyperlink inadmissible), appeal docketed, No. 22-1212 (Fed. Cir. 2021); International Dairy Foods Association v. Interprofession du Gruyère, 2020 USPQ2d 10892, at *7-8 (TTAB 2020) (nonconforming evidence consisting of Internet materials bearing web addresses without a copy of the corresponding web pages not considered by the Board), aff’d, ___ F. Supp. 3d ___, 2021 WL 6286234 (E.D. Va. Dec. 15, 2021), appeal docketed, No. 22-1041 (4th Cir. Jan. 11, 2022); TV Azteca, S.A.B. de C.V. v. Martin, 128 USPQ2d 1786, 1790 n.14 (TTAB 2018) (providing an Internet link to an article is insufficient to make the article of record because the information displayed at a link’s Internet address is impermanent; article is of record only because it was submitted as an exhibit to a declaration. "The Board does not accept Internet links as a substitute for submission of a copy of the resulting page.").

 4.   37 C.F.R. § 2.122(e)(2). See STX Financing, LLC v. Terrazas, 2020 USPQ2d 10989, at *4 (TTAB 2020) (motion to strike exhibit consisting of Internet materials denied where date of access or publication of the Internet materials was not displayed on the face of the Internet materials themselves but was clearly provided in the notice of reliance), appeal dismissed sub nom. STX Financing, LLC. v. Vidal, No. 22-1192 2022 WL 1124962 (Fed. Cir. Apr. 15, 2022); 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).

 5.   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).

 6.   Fed. R. Civ. P. 802. See, e.g., Chutter, Inc. v. Great Management Group., LLC, 2021 USPQ2d 1001, at *33 n.69 (TTAB 2021) (YouTube video stating number of "results" and "views" admissible only to show what has been printed, not the truth of what has been printed), appeal docketed, No. 22-1212 (Fed. Cir. 2021); Spiritline Cruises LLC v. Tour Management Services, Inc., 2020 USPQ2d 48324, at *2 (TTAB 2020) (Internet printouts and other materials properly introduced under a notice of reliance without supporting testimony considered only for what they show on their face rather than for the truth of the matters asserted); Milwaukee Electric Tool Corp. v. Freud America, Inc., 2019 USPQ2d 460354, at *4 (TTAB 2019) (same for website, Internet printouts and other materials), complaint filed, No. 20-cv-109 (M.D.N.C. Feb. 3, 2020); Ricardo Media Inc. v. Inventive Software, LLC, 2019 USPQ2d 311355, at *2 (TTAB 2019) (unaccompanied by testimony, articles from the Internet may not be considered for the truth of the matters asserted but are admissible for what they show on their face); Optimal Chemical Inc. v. Srills LLC, 2019 USPQ2d 338409, at.*2 n.13 (TTAB 2019) (website printouts are hearsay and admissible under notice of reliance for what they show on their face but may not be relied upon for the truth of the matters asserted unless supported by testimony or other evidence); Schiedmayer Celesta GmbH v. Piano Factory Group, Inc., 2019 USPQ2d 341894, at *3, *9 nn. 8, 15 (TTAB 2019) (Internet evidence relied on for "what these sources state, rather than the truth of what they state"; Internet reference works considered for what they show on their face, specifically that certain searches and materials point to Ms. Schiedmayer’s family and its businesses and their musical instruments), 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); WeaponX Performance Products Ltd. v. Weapon X Motorsports, Inc., 126 USPQ2d 1034, 1038 and 1040-41 (TTAB 2018) (printouts from websites downloaded from the Internet are admissible under notice of reliance for what they show on their face, but absent testimony from a competent witness, the matters asserted therein are hearsay and thus not probative of the truth of what has been printed); Couch/Braunsdorf Affinity, Inc. v. 12 Interactive, LLC, 110 USPQ2d 1458, 1467 n.30 (TTAB 2014) (Internet webpage evidence admissible only to show what has been printed and not for the truth of what has been printed).

 7.   Ricardo Media Inc. v. Inventive Software, LLC, 2019 USPQ2d 311355, at *3 (TTAB 2019) (no evidence introduced to show that United States consumers visited website) (citing In re Brouwerij Bosteels, 96 USPQ2d 1414, 1424 (TTAB 2010)); Baroness Small Estates, Inc. v. American Wine Trade, Inc., 104 USPQ2d 1224, 1228 (TTAB 2012) (noting that there was no evidence in the record as to the public exposure to the website pages submitted as evidence in genericness claim) (citing In re Country Music Association Inc., 100 USPQ2d 1824, 1830 (TTAB 2011)).

 8.   See, e.g., International Dairy Foods Association v. Interprofession du Gruyère, 2020 USPQ2d 10892, at *7 (TTAB 2020) ("Reference materials from foreign sources pertaining to cheese, even if in English, have limited probative value on the question of genericness because they do not reflect usage, or exposure to consumers, of the term GRUYERE in the United States."), aff’d, ___ F. Supp. 3d ___, 2021 WL 6286234 (E.D. Va. Dec. 15, 2021), appeal docketed, No. 22-1041 (4th Cir. Jan. 11, 2022); Optimal Chemical Inc. v. Srills LLC, 2019 USPQ2d 338409, at *2 n.13 (TTAB 2019) (website printouts are hearsay and admissible under notice of reliance for what they show on their face but may not be relied upon for the truth of the matters asserted unless supported by testimony or other evidence); WeaponX Performance Products Ltd. v. Weapon X Motorsports, Inc., 126 USPQ2d 1034, 1038 and 1040-41 (TTAB 2018) (same).

 9.   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."), appeal dismissed without prejudice sub nom. Snyder’s-Lance, Inc. v. Frito-Lay North America, Inc., 414 F. Supp. 3d 822, 2019 USPQ2d 401574 (W.D.N.C. 2019), reversed and remanded on other grounds, 991 F.3d 512 (4th Cir. 2021); 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).

 10.   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.).

 11.   See, e.g., Schiedmayer Celesta GmbH v. Piano Factory Group, Inc., 2019 USPQ2d 341894, at *3, *9 nn. 8, 15 (TTAB 2019) (Internet evidence relied on for "what these sources state, rather than the truth of what they state"; Internet reference works considered for what they show on their face, specifically that certain searches and materials point to Ms. Schiedmayer’s family and its businesses and their musical instruments), aff’d, 11 F.4th 1363, 2021 USPQ2d 913 (Fed. Cir. 2021); 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). Cf. Optimal Chemical Inc. v. Srills LLC, 2019 USPQ2d 338409, at *14 n.90 (TTAB 2019) (although respondent did not offer testimony in connection with certain Internet evidence, Board considered this evidence for the truth of the matters asserted where the petitioner did not object and opined on its accuracy in its rebuttal testimony and rebuttal brief); WeaponX Performance Products Ltd. v. Weapon X Motorsports, Inc., 126 USPQ2d 1034, 1038 (TTAB 2018) (although printouts from Internet websites constitute hearsay, to the extent nonoffering party has accepted as fact any portion of this evidence, Board deems the evidence stipulated into the record for the truth of any matters asserted therein).

 12.   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), 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 their truth of the matter, multiple sources did corroborate third-party use).

 13.   Spiritline Cruises LLC v. Tour Management Services, Inc., 2020 USPQ2d 48324, at *3 (TTAB 2020). See, e.g., Coca-Cola Co. v. Meenaxi Enterprise, Inc., 2021 USPQ2d 709, at *11 (TTAB 2021) (Wayback Machine screen captures displaying a URL and date are admissible).

 14.   Spiritline Cruises LLC v. Tour Management Services, Inc., 2020 USPQ2d 48324, at *3-4 (TTAB 2020) (witness testimony authenticated printouts and laid foundation to support intended evidentiary use).

 15.   See Coca-Cola Co. v. Meenaxi Enterprise, Inc., 2021 USPQ2d 709, at *11 (TTAB 2021) (without accompanying testimony, Wayback Machine evidence generally is admissible only for what it shows on its face); Spiritline Cruises LLC v. Tour Management Services, Inc., 2020 USPQ2d 48324, at *4 (TTAB 2020) (testimony established that printouts qualify under the business records exception; webpages were not offered to prove the truth of the matter asserted). Cf. WeaponX Performance Products Ltd. v. Weapon X Motorsports, Inc., 126 USPQ2d 1034, 1041 (TTAB 2018) (webpages submitted under notice of reliance generally cannot be used to demonstrate priority without corroborating testimony).

 16.   Spiritline Cruises LLC v. Tour Management Services, Inc., 2020 USPQ2d 48324, at *4, *9, *11 (TTAB 2020) (other witnesses provided corroborating testimony to support authenticity and accuracy of webpage captures as of the date in question).

 17.   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); 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 mem., 565 F. App’x 900 (Fed. Cir. 2014); 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).

 18.   See STX Financing, LLC v. Terrazas, 2020 USPQ2d 10989, at *4 (TTAB 2020) (motion to strike exhibits to notice of reliance on the ground that the offering party did not submit complete copies of the websites, but only screenshots of portions of the websites, denied), appeal dismissed sub nom. STX Financing, LLC. v. Vidal, No. 22-1192 2022 WL 1124962 (Fed. Cir. Apr. 15, 2022).