The importance of federal registration of trademarks was underscored by the B&B Hardware Court when it declared: “Registration is significant. The Lanham Act confers ‘important legal rights and benefits’ on trademark owners who register their marks.”² So important are the “substantial” benefits to registration that the Court expects litigants before the TTAB “will take the matter seriously” when registration is opposed, confirming and justifying “that registration decisions can be weighty enough to ground issue preclusion.”³ As a result, the Court’s majority had no problem directing that federal district courts apply issue preclusion “when the usages adjudicated by the TTAB are materially the same as those before the district court,” so long as “the other ordinary elements of issue preclusion are met.”⁴

While B&B Hardware confirmed that the TTAB’s final decision on whether a likelihood of confusion exists—for purposes of determining the right to register—can bind a later district court on that key issue in the trademark infringement context,⁵ the Court’s holding begs the question of what other types of issues decided by the TTAB may result in the application of issue preclusion in federal court proceedings. Within the last year, at least one federal district court applied issue preclusion based on an earlier TTAB decision concerning lack of priority.⁶ Time will tell what other kinds of trademark issues will lead to preclusion under B&B Hardware.

Functionality

Functionality determinations by the TTAB seem particularly apt to prevent a losing party on that issue before the TTAB from relitigating functionality of the claimed mark in a later trademark infringement action. Functionality is the death knell of trademark registration and protection. It is to nontraditional trademarks what genericness is to traditional word marks—both are part of the public domain from a trademark perspective, free for anyone to use, even direct competitors. It is not even possible to obtain a defensive supplemental registration for either type of matter, as both are considered incapable of ever being a trademark, so it is just as critical that substantial record evidence ground a functionality finding as a genericness finding.

It has been hard not to notice the continuous stream of adverse TTAB decisions over the last few years denying registration of product configuration trademarks,⁷ and this apparent skepticism is especially revealed in the TTAB’s application of the functionality doctrine.⁸

Truly functional product design should be recognized as an important, “do or die” determination in TTAB cases. The Supreme Court has ruled that a physical product feature is functional as a matter of law if it is “essential to the use or purpose of the article or if it affects the cost or quality of the article.”⁹ Yet, determining when functionality exists has proven to be a difficult task, in part because the Supreme Court has not adopted the same language in analyzing functionality as the routinely applied USPTO test set forth in Morton-Norwich.¹⁰ Indeed, many commentators consider the governing law on trademark functionality to be a “mess.”¹¹ Given the analogous “do or die” nature of a functionality finding, it remains to be seen whether the Federal Circuit will require the TTAB to apply the same level of rigor in supporting USPTO functionality refusals as it does when reviewing the TTAB’s genericness determinations.¹²

The Morton-Norwich factors—the USPTO’s longstanding doctrinal analysis for determining whether a product design or feature can ever be owned as a trademark or whether it is functional—consider the following:

1. existence of a utility patent that discloses the utilitarian advantages of the design sought to be registered;
2. advertising by the applicant that touts the utilitarian advantages of the design;
3. facts pertaining to the availability of alternative designs; and
4. facts pertaining to whether the design results from a comparatively simple or inexpensive method of manufacture.¹³

As to the first Morton-Norwich factor, when utility patents are involved, it is not impossible to overcome functionality, but it is a very tough road, given what the Supreme Court has said on the subject:

The functionality doctrine prevents trademark law, which seeks to promote competition by protecting a firm’s reputation, from instead inhibiting legitimate competition by allowing a producer to control a useful product feature. It is the province of patent law, not trademark law, to encourage invention by granting inventors a monopoly over new product designs or functions for a limited time, after which competitors are free to use the innovation.¹⁴

In such cases, the applicant bears an especially “heavy burden of showing that the feature is not functional” and “overcoming the strong evidentiary inference of functionality.”¹⁵ Moreover, it is not necessary that the applicant own the applicable utility patent. Third-party utility patents potentially are relevant to the functionality determination too. During ex parte examination, the USPTO is expected to consult patent databases, including the USPTO’s patent records, to see if applicable utility patents exist that disclose the functional advantages of the product design that the applicant seeks to register.¹⁶ The USPTO must not only examine the details of the application (i.e., the drawing, the description of the mark, the identification of goods or services, and the specimen, if any), but also conduct independent research to obtain relevant and competent evidentiary support for a functionality refusal.¹⁷

When it comes to assessing the second Morton-Norwich factor, it becomes important for marketers, engineers, and trademark counsel to be on the same page about which product features qualify for and are subject to trademark protection, if any, and which are functional and outside the protection of trademarks. When an applicant’s advertising touts the functional benefits of a particular design feature, the USPTO is certain to believe those claims, making it exceedingly difficult, if not impossible, to recover and rebut a functionality finding. The TTAB rightly considers this kind of evidence as fresh meat to feed a functionality finding. A recent example relates to a claimed trademark consisting of “a three-dimensional configuration of external helical fluting around a gun barrel,” where the TTAB rightly seized on the brand owner’s website content touting function in this way:

[T]he unique appearance of our Helical Fluting provides the discriminating shooter with a barrel that not only looks great but is up to thirty percent more rigid than a similar barrel with Straight Fluting. Helical fluting provides additional surface area for improved cooling, improved barrel harmonics, and helps counteract rotational torque, giving the shooter greater shot consistency.¹⁸

Although there was much discussion in the decision about whether the applicant’s utility patent actually disclosed the claimed trademark feature (when present, no trademark protection is possible), about the presence of an arguably controlling design patent (normally considered totally consistent with nontraditional trademark protection),¹⁹ and about the existence of other competing designs in the marketplace, it’s exceedingly hard to explain away the self-inflicted wound of the applicant’s own advertising.

In the end, the TTAB pointed both barrels at the applicant’s trademark claim, finding functionality and affirming the USPTO examining attorney’s refusal to register the claimed “external helical fluting around a gun barrel” trademark:

[B]ased on all of the record evidence, we find Applicant’s proposed rifle barrel configuration mark is principally dictated by utilitarian concerns. With respect to the Morton-Norwich factors in particular, Applicant owns a utility patent demonstrating and claiming the utilitarian purposes of its fluted design; Applicant extols these same virtues in its advertisements; and Applicant’s design is considered superior to other barrel fluting designs. With these findings and viewing the record in its entirety, we conclude the proposed rifle barrel configuration mark comprises matter that, as a whole, “is essential to the use or purpose of the article or . . . affects the cost or quality of the article,” as contemplated by [the Supreme Court], and thus is functional and not registrable on that basis.²⁰

The TTAB’s functionality determination is a question of fact, and it depends on the totality of the evidence presented in each particular case.²¹ Although there is no set amount of evidence that an examining attorney must present to establish a prima facie case of functionality, it is clear that there must be evidentiary support for the refusal of the claimed mark in the record.²² The USPTO does not consider it necessary to consider all the Morton-Norwich factors in every case. Moreover, there is no requirement that all four of the Morton-Norwich factors weigh in favor of functionality to support a refusal.²³ What remains unclear, however, is whether a functionality refusal can be sustained based solely on the third Morton-Norwich factor, the availability of alternative designs, especially when the other three factors point in the opposite direction.²⁴

Bona Fide Intent to Use

Whether or not a likelihood of confusion exists is easily the most common and frequent substantive trademark law issue presented to the TTAB for a final decision. More and more, however, at least in the context of inter partes proceedings before the TTAB, some adversaries have learned that the goal of preventing another’s registration is sometimes more easily obtained by conducting some strategic discovery and, if doing so bears fruit, amending the opposition to also challenge the applicant’s claimed bona fide intent to use. When the lack of a bona fide intent to use is successfully challenged, the opposed trademark application is refused registration and/or the resulting registration is cancelled—both being considered void ab initio. Given the lost substantial benefit of constructive use (when registration is denied or cancelled), the opportunity for turning the tables on priority is real, especially when a significant amount of time has passed between the applicant’s filing and actual first use dates.

For over 25 years, one of the key statutory requirements for seeking registration under § 1(b) of the Lanham Act has been the applicant’s bona fide intent to use:

A person who has a bona fide intention, under circumstances showing the good faith of such person, to use a trademark in commerce may request registration of its trademark on the principal register hereby established by paying the prescribed fee and filing in the Patent and Trademark Office an application and a verified statement, in such form as may be prescribed by the Director.²⁵

While there is no statutory definition of what “bona fide intention” means, or even what kind or quantum of evidence is required to prove it, the provided language is clear on its face that an applicant’s intent must exist “under circumstances showing the good faith of such person.” This language means “that the applicant’s intent must be demonstrable and more than a mere subjective belief.”²⁶ Moreover the legislative history confirms that “bona fide” also means a “firm” intention to “use in commerce” in the ordinary course of trade (not “token use”), and that such intention is assessed on an objective basis, as of the time it was made.²⁷ The TTAB is empowered to make careful judgments on a case-by-case basis considering the totality of all the circumstances made part of the record (whether at summary judgment or at trial). Importantly, the requisite bona fide intent is not satisfied by an intent to reserve rights in the applied-for mark.

In general, while the USPTO will not examine the good faith or bona fide nature of the sworn assertions made in an intent-to-use trademark application (at least during ex parte examination), the speed and apparent ease of making such electronic assertions should not lull trademark applicants and practitioners into a false sense of security that the bona fide intent requirement is a casual formality, with no need for record-keeping of objective evidence of the intent, and without the potential for significant adverse consequences later.

The lack of any documentation by an applicant to support bona fide intent has proven to be a fertile ground for probing in discovery. The TTAB consistently has held for more than two decades that the absence of any such documentary evidence can be sufficient to prove that an applicant lacks the intention as required by § 1(b) of the Lanham Act.²⁸ This reading of § 1(b) was endorsed for the first time just last year by the TTAB’s primary reviewing court, the Federal Circuit, in Swatch AG v. M.Z. Berger & Co.²⁹

It is clear, more now than ever before, that it is not necessary for the opposer challenging the applicant’s claimed bona fide intent to prove a negative. Indeed, the M.Z. Berger decision makes clear that an opposer may satisfy its initial burden at trial by “showing the absence of documentary evidence regarding applicant’s bona fide intent.”³⁰ This simply requires an opposer to point to the trial record, devoid of such contemporaneous documentary evidence. Having established that documentary evidence to corroborate the claimed bona fide intent is absent from the record, the “burden of production shifts to applicant to come forward with evidence adequately explaining or outweighing the failure to provide such documentary evidence.”³¹

One of the significant traps for the unwary in these cases is when it is revealed that an applicant has failed to retain contemporaneous documentation—on or before the filing date of the application—that corroborates the asserted bona fide intent to use the claimed mark in connection with all the goods and services listed in the intent-to-use application. Worse yet is another trap, especially problematic for those inclined to resist discovery by lodging numerous boilerplate objections and refusing to provide helpful answers and/or produce such evidence. Within the last year, the TTAB again³² has even gone so far as granting summary judgment to an opposer asserting the lack of bona fide intent as a matter of law: “Given the several opportunities that Applicant has had to come forward with evidence of its intent to use the involved marks, as well as the deficient nature of the discovery responses that Applicant did provide, the Board must conclude that Applicant produced no evidence because it has none.”³³

Another trap for the unwary, and what actually might help explain the above-referenced flawed decision to obfuscate during discovery, is the all too common mistaken belief that the verified statement of bona fide intent in the opposed application alone is sufficient to establish the requisite bona fide intent. It is not. As the Federal Circuit has affirmed, if the mere filing and prosecution of an intent-to-use trademark application were enough to establish the requisite bona fide intent, there could never be a successful challenge on that basis, because an inter partes proceeding can only be brought after the filing of such an application.

Mere assertions of “a generalized intention or desire to license the mark or partner with others at some indefinite time in the future” do not establish the requisite bona fide intent to use in commerce.³⁴ And, while a bona fide intention is not lost by the applicant having its planned use be contingent upon the outcome of other events and circumstances, such as the consummation of a suitable licensing deal, to satisfy the requisite intent it seems likely a challenged applicant would have to come forward with sufficient specifics about such a licensing program. For example, actually identifying steps taken toward securing such a license, listing some of the key anticipated terms, and even naming some intended licensees likely would be helpful to corroborating a contemporaneous claimed bona fide intent. Without any objective evidence of the requisite bona fide intent, the TTAB will be left to conclude instead that there is a mere subjective intent to reserve rights in a mark. Within the last year, relying on the Federal Circuit’s M.Z. Berger decision, the TTAB even found a lack of bona fide intent and sustained an opposition on that ground in a case decided under its strongly encouraged alternative case resolution procedure.³⁵

It is remarkable how often the various and different records before the TTAB have justified findings that an applicant lacked the requisite bona fide intent, especially because the TTAB recognizes and follows the Federal Circuit’s guidance that the bar for an applicant to show it has a bona fide intent to use is not particularly high. Nevertheless, the requirement that the circumstances must indicate that the applicant’s intent to use the mark was firm and not merely an intent to reserve a right in the mark continues to trip up applicants defending their intent-to-use trademark applications.³⁶ Applicants and their counsel would do well to retain at least some basic and objective evidence of the claimed bona fide intent as of the filing date, such as business plans, marketing plans, and/or internal correspondence detailing more specifics about the applicant’s plans than what is revealed in the subject application (i.e., target channels of trade, target customers, further details about the specific goods claimed in an application, etc.).

Consideration of Website and Internet Evidence

One of the ongoing challenges faced by many trademark practitioners is confusion over the introduction of TTAB evidence through a notice of reliance, as this method of introduction is appealingly efficient and totally unique to TTAB practice. For many years, the TTAB consistently refused to allow the introduction of website and related printed Internet content via notices of reliance, because such evidence was not considered suitable as an acceptable “printed publication” in general circulation in accordance with 37 C.F.R. § 2.122(e). That all ended about six years ago, however, when the TTAB changed its practice regarding Internet evidence. The TTAB’s decision in Safer Inc. v. OMS Investments Inc.³⁷ effectively overruled prior precedent that Internet materials are not self-authenticating.³⁸

Now that such evidence clearly is admissible through a notice of reliance, the remaining confusion appears to stem not only from the technical requirements for admission under Safer,³⁹ but even more importantly, from what the evidence might stand for and what propositions it might be found to support standing alone without supportive testimony. Practitioners should keep close in mind that the introduction of evidence before the TTAB technically complying with the Safer requirements does not overcome hearsay objections, and such evidence can only be relied on for what the document shows on its face. It does not prove the truth of the matter asserted or printed.⁴⁰ Accordingly, at least to date, bare printouts from the Wayback Machine (www.archive.org) are insufficient on their own to establish trademark use, the timing of trademark use, or trademark priority.⁴¹ Of course, what remains to be seen is whether the TTAB will continue to limit the probative value of such Wayback Machine evidence, as more federal district courts demonstrate the reliance of such evidence.⁴²

Conclusions

Hopefully this selected update on how the TTAB is presently considering “functionality,” “bona fide intent,” and “Internet evidence” will better inform trademark applicants and practitioners about avoiding many of the unnecessary pitfalls of TTAB practice. Additionally, it may generate new thoughts about how to more creatively approach their particular TTAB cases, especially in light of the higher stakes resulting from final TTAB decisions under B&B Hardware. Last but not least, those interested in TTAB practice should ready themselves for the most significant changes in a decade to the TTAB’s rules of practice, as the planned effective date of the new rules is coming soon on January 14, 2017.⁴³

Endnotes

1. 135 S. Ct. 1293 (2015).

2. Id. at 1300.

3. Id. at 1310.

4. Id. The Federal Circuit has observed that B&B Hardware did not address ex parte trademark examination by the USPTO. In re Cordua Restaurants, Inc., 823 F.3d 594 (Fed. Cir. 2016) (precedential).

5. See Theodore H. Davis Jr., Inter Partes Litigation within the U.S. Patent and Trademark Office: New Opportunities for Specialists?, 8 Landslide, no. 1, Sept.–Oct. 2015, at 1 (arguing against the application of issue preclusion from a TTAB decision finding no likelihood of confusion, as opposed to one finding likely confusion).

6. Ashe v. PNC Fin. Servs. Grp., Inc., 165 F. Supp. 3d 357 (D. Md. 2015), aff’d, 652 F. App’x 155 (4th Cir. 2016).

7. In re Loggerhead Tools, LLC, 119 U.S.P.Q.2d 1429 (T.T.A.B. 2016) (precedential); In re Openings d/b/a Total Door, Serial No. 86044043 (T.T.A.B. May 5, 2016) (nonprecedential); In re William D. Hober, Inc., Serial No. 85643266 (T.T.A.B. Apr. 7, 2016) (nonprecedential); In re Monster Cable Prods., Inc., Serial No. 85318060 (T.T.A.B. Dec. 28, 2015) (nonprecedential); In re Heatcon, Inc., 116 U.S.P.Q.2d 1366 (T.T.A.B. 2015) (precedential).

8. Trademark Manual of Examining Procedure (TMEP) § 1202.02(a)(viii) (Oct. 2016).

9. TrafFix Devices, Inc. v. Mktg. Displays, Inc., 532 U.S. 23, 33 (2001); Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159, 165 (1995); Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 850 n.10 (1982).

10. In re Morton-Norwich Prods., Inc., 671 F.2d 1332 (C.C.P.A. 1982).

11. Robert G. Bone, Trademark Functionality Reexamined, 7 J. Legal Analysis 183, 183–84 & n.1 (2015) (“Functionality is one of the most important but also one of the most confusing and unsettled areas of trademark law. . . . Most commentators agree that functionality law is a confusing mess today.”).

12. See Princeton Vanguard, LLC v. Frito-Lay North America, Inc., 786 F.3d 960 (Fed. Cir. 2015) (vacating the TTAB’s decision finding PRETZEL CRISPS generic for “pretzel crackers,” and remanding for the TTAB’s application of the proper legal standard and consideration of certain relevant evidence) (precedential).

13. TMEP, supra note 8, § 1202.02(a)(v); see also In re Becton, Dickinson & Co., 675 F.3d 1368, 1374–75 (Fed. Cir. 2012); Morton-Norwich, 671 F.2d at 1340–41.

14. Qualitex, 514 U.S. at 164–65 (citation omitted).

15. TrafFix Devices, Inc. v. Mktg. Displays, Inc., 532 U.S. 23, 30 (2001); In re Udor U.S.A., Inc., 89 U.S.P.Q.2d 1978, 1979–80 (T.T.A.B. 2009) (precedential).

16. TMEP, supra note 8, § 1202.02(a)(v)(A).

17. Id. § 1202.02(a)(iv); see also Becton, Dickinson & Co., 675 F.3d at 1374; Textron, Inc. v. U.S. Int’l Trade Comm’n, 753 F.2d 1019, 1025 (Fed. Cir. 1985); In re R.M. Smith, Inc., 734 F.2d 1482, 1484 (Fed. Cir. 1984).

18. In re E.R. Shaw, Inc., Serial No. 85797528, slip op. at 2–3 (T.T.A.B. Sept. 29, 2015) (nonprecedential).

19. Design patents cover the invention of a new, original, and ornamental design for an article of manufacture. 35 U.S.C. § 171. A design patent is a factor that weighs against a finding of functionality, because design patents by definition protect only ornamental and nonfunctional features. TMEP, supra note 8, § 1202.02(a)(v)(A).

20. E.R. Shaw, Serial No. 85797528, slip op. at 16.

21. TMEP, supra note 8, § 1202.02(a)(iv); see also Becton, Dickinson & Co., 675 F.3d at 1372; Valu Eng’g, Inc. v. Rexnord Corp., 278 F.3d 1268, 1273 (Fed. Cir. 2002); In re Udor U.S.A., Inc., 89 U.S.P.Q.2d 1978, 1979 (T.T.A.B. 2009); In re Caterpillar Inc., 43 U.S.P.Q.2d 1335, 1338 (T.T.A.B. 1997).

22. See, e.g., In re Morton-Norwich Prods., Inc., 671 F.2d 1332, 1342 (C.C.P.A. 1982) (admonishing both the examining attorney and the TTAB for failing to support the functionality determination with even “one iota of evidence”).

23. See Valu Eng’g, 278 F.3d at 1276; Udor, 89 U.S.P.Q.2d at 1979–86 ; In re Gibson Guitar Corp., 61 U.S.P.Q.2d 1948 (T.T.A.B. 2001).

24. In the interest of full disclosure, the author’s firm is currently handling the appeal of the TTAB’s decision in In re William D. Hober, Inc., Serial No. 85643266 (T.T.A.B. Apr. 7, 2016) (nonprecedential) (“In the event that Applicant ultimately prevails with its contention that the mark sought to be registered is not functional, we now turn to consider the refusal of non-distinctiveness and the issue of acquired distinctiveness.”), where the Federal Circuit will have the opportunity to address this issue, among others.

25. 15 U.S.C. § 1051(b)(1).

26. M.Z. Berger & Co. v. Swatch AG, 787 F.3d 1368, 1375 (Fed. Cir. 2015).

27. Id. at 1374–76.

28. Commodore Elecs. Ltd. v. CBM Kabushiki Kaisha, 26 U.S.P.Q.2d 1503, 1507 (T.T.A.B. 1993).

29. 108 U.S.P.Q.2d 1463 (T.T.A.B. 2013), aff’d, 787 F.3d 1368 (Fed. Cir. 2015).

30. Id.

31. Id.; see also Commodore Elecs., 26 U.S.P.Q.2d at 1507 n.11.

32. See Honda Motor Co. v. Winkelmann, 90 U.S.P.Q.2d 1660 (T.T.A.B. 2009) (granting summary judgment where the applicant failed to provide responsive documents to support intent to use mark and stated “no such documents exist”); see also Diageo N. Am., Inc. v. Captain Russell Corp., Opp’n No. 91203745, slip op. at 7–8 (T.T.A.B. June 12, 2013) (nonprecedential) (granting summary judgment on lack of bona fide intent where there was no business plan, budget, market research, focus group testing, recipes, discussions with advertising agencies, or marketing plans).

33. Tekni-Plex, Inc. v. Selig Sealing Prods., Inc., Opp’n No. 91214508, slip op. at 9 (T.T.A.B. Nov. 25, 2015) (nonprecedential). But see Carl Walther GmbH v. Herriger, Opp’n No. 91215976, slip op. at 9–10 (T.T.A.B. June 22, 2015) (nonprecedential).

34. Lincoln Nat’l Corp. v. Anderson, 110 U.S.P.Q.2d 1271 (T.T.A.B. 2014); see also L’Oreal S.A. v. Marcon, 102 U.S.P.Q.2d 1434, 1443 (T.T.A.B. 2012) (“Applicant’s very generalized and non-specific reference to licensing and outsourcing as potential strategies to bring the product to market at an unspecified time in the future [is] woefully deficient in showing a bona fide intent to use the mark.”).

35. Swiss Grill Ltd. v. Wolf Steel Ltd., 115 U.S.P.Q.2d 2001 (T.T.A.B. 2015) (holding that the applicant “has produced no documentary evidence supporting its asserted bona fide intent to use the mark in the United States prior to the filing date of its application”).

36. Boston Red Sox Baseball Club LP v. Sherman, 88 U.S.P.Q.2d 1581, 1587 (T.T.A.B. 2008); Lane Ltd. v. Jackson Int’l Trading Co., 33 U.S.P.Q.2d 1351, 1355 (T.T.A.B. 1994).

37. 94 U.S.P.Q.2d 1031, 1037 n.14 (T.T.A.B. 2010) (finding document obtained from the Internet admissible only if it identifies its date of publication or date that it was accessed and printed, and its source (e.g., the URL)).

38. Trademark Trial & Appeal Board Manual of Procedure (TBMP) § 704.08(b), at 700-90 (2015).

39. In re Wadhwa, Serial No. 86013037, 2016 WL 1045678, at *7 (T.T.A.B. Feb. 16, 2016) (“[T]he Alexa reports are not properly authenticated, bearing no URL address or date.”); Healthy Directions, LLC v. Celebrus, LLC, Cancellation No. 92060342, 2015 WL 10734145, at *3 (T.T.A.B. Aug. 19, 2015) (declining to consider screen shots that did not comply with the requirements of Safer); Premio Foods, Inc. v. Eds Mfg., LLC, Opp’n No. 91206407, 2015 WL 4241152, at *6 n.49 (T.T.A.B. June 16, 2015) (“Applicant also submitted a printout from the site primaportasausage.com referencing Prima Porta Italian sausage, but because it does not display the date it was published or printed, it does not meet the admissibility requirements of [Safer].”).

40. Nature’s Path Foods Inc. v. Mary’s Gone Crackers, Inc., Cancellation No. 92059388, 2015 WL 9702638, at *5 (T.T.A.B. Dec. 29, 2015) (“Although Registrant submitted Internet printouts stating on their face that the trade show was held March 13–16, 2008, such evidence constitutes hearsay and does not establish the truth of the matter printed.” (footnote omitted)); Overstock.com, Inc. v. J. Becker Mgmt., Opp’n No. 91203624, 2015 WL 4269987, at *3 (T.T.A.B. June 25, 2015) (“Opposer submitted various internet materials under three notices of reliance. Without accompanying relevant testimony, the internet evidence is similar to printed publications and is only admissible for what it shows on its face.”).

41. Hesen-Minten v. Petersen, Opp’n No. 91192706, 2013 WL 3188908 (T.T.A.B. Feb. 26, 2013); see also Omega S.A. v. Alliant Techsystems Inc., Opp’n Nos. 91173785 & 91174067, 2015 WL 1952312, at *2–3 (T.T.A.B. Apr. 29, 2015).

42. Marten Transport, Ltd. v. Platform Advertising, Inc., No. 14-2464-JWL, 2016 WL 1718862 (D. Kan. Apr. 29, 2016) (taking judicial notice of archived pages on Wayback Machine to demonstrate website use on particular date).

43. Miscellaneous Changes to Trademark Trial and Appeal Board Rules of Practice, 81 Fed. Reg. 19,296 (Apr. 4, 2016).