704.08    Printed Publications

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; indicate generally the relevance of the material being offered; 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. The notice of reliance shall be filed during the testimony period of the party that files the notice.
    • (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.

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).

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).

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 2002) (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).