In Spiritline Cruises LLC v. Tour Mgmt. Serv’s, Inc., Oppo. No. 91224000, the TTAB held that use of the Internet Archive tool, known as the “Wayback Machine,” for evidentiary purposes was permitted. In making this determination, the Board addressed hearsay and authentication issues, and held: (1) the evidence fell within the business record hearsay exception; and (2) the affidavit submitted by Spiritline served as an appropriate means to authenticate the Wayback Machine printouts.

Background

Spiritline Cruises LLC (“Spirtline”) opposed the registration of the mark “CHARLESTON HARBOR TOURS,” owned by Tour Management Services, Inc. (“TMS”) for travel tours and boat charter related services. In its Notice of Opposition, Spiritline claimed that the “CHARLESTON HARBOR TOURS” mark is incapable of registration because it is geographically descriptive and has been used in its descriptive manner by many parties, in addition to Spritline, in the marketplace. In response, TMS claimed it made substantially exclusive use of the “CHARLESTON HARBOR TOURS” mark for at least five years prior to filing its application for registration and that the evidence submitted by Spiritline were largely recent uses in order to attempt to block registration of TMS’s application.

To support its claims, Spiritline submitted various printouts utilizing the Wayback Machine to illustrate third-party use of the “CHARLESTON HARBOR TOURS” mark between 2004 and 2015. The purpose of introducing this evidence was to discount TMS’s claim of substantial exclusive use of the “CHARLESTON HARBOR TOURS” mark. The evidence submitted by Spiritline was further accompanied by an affidavit instructing the Board of what the printouts were, how they were acquired, and the relevant dates associated therewith. The specificity provided by Spiritline’s affiant regarding the Internet crawling and archiving process was heavily regarded by the Board and served as a means to obviate authentication issues. Not surprisingly, TMS objected to the introduction of the Wayback Machine evidence claiming it was hearsay; however, the Board overruled and held that the evidence and supporting affidavit qualified under the business record exception. The Board further held that the evidence was properly authenticated and a proper foundation was laid via an affidavit to support the intended evidentiary use. As a result, the Board allowed numerous Internet printouts in to evidence to illustrate not only what they showed on their face, but to establish that TMS did not exercise substantially exclusive control over the “CHARLESTON HARBOR TOURS” mark. In fact, the evidence made it clear that the “CHARLESTON HARBOR TOURS” mark was frequently used on a number of third-party websites without challenge. Ultimately, after review and consideration of the various arguments and evidence submitted throughout the duration of the proceeding, the Board held TMS’s application for “CHARLESTON HARBOR TOURS” should be refused from registration.

The use of the Wayback Machine in this case is important because it provides specific instructions for properly authenticating and admitting such evidence in a TTAB action. As seen in this matter, the Wayback Machine evidence played a paramount role in establishing third party use of the “CHARLESTON HARBOR TOURS” mark. This tool can likewise be used to provide support on issues related to priority of use, abandonment, no bona fide intent to use the mark when filed as an intent-to-use application, fraud, and issues related to a mark becoming generic. This TTAB ruling is instructive on avoiding potential hearsay and authentication related issues when using records from the Wayback Machine.