In today’s digital landscape, much of the evidence that helps prove or disprove a trademark claim originates online. The Trademark Trial and Appeal Board (TTAB), an adjudicative body within the U.S. Patent and Trademark Office, has adapted to this reality by recognizing certain Internet materials as admissible under a Notice of Reliance. However, the rules surrounding Internet evidence are specific and must be carefully followed. For entrepreneurs, startups, and businesses involved in TTAB oppositions or cancellations, understanding these evidentiary standards can be the difference between success and dismissal.
What Is a Notice of Reliance?
A Notice of Reliance is the formal vehicle through which parties introduce documentary evidence into the record of a TTAB case. This procedural document informs both the Board and the opposing party that certain materials are being relied upon as part of the submitting party’s case. It is a vital element of the TTAB trial process because, unlike federal courts, the Board does not automatically consider all discovery materials or third-party documents. Instead, each piece of evidence must be properly introduced to become part of the official record.
When filing a Notice of Reliance, a party must include a description of the evidence, its relevance, and the legal basis for its admissibility. Importantly, the Notice of Reliance is not just a filing formality, it represents a legal declaration that the attached materials meet TTAB standards for authentication and relevance. If a Notice of Reliance is defective, the opposing party may move to strike the evidence, potentially weakening the filer’s case.
Admissibility of Internet Evidence
The TTAB recognizes that the Internet is a primary source of brand information, competitive data, and consumer perception. Under TTAB practice, documents obtained from the Internet may be submitted via a Notice of Reliance if they clearly identify the publication’s source (such as the URL) and display the date of publication or access. These requirements ensure the material can be authenticated and verified.
For example, a party may submit screenshots of an opposing party’s website to demonstrate how a trademark is being used in commerce. Likewise, online articles, social media pages, or news stories can be admitted to show evidence of fame, reputation, or marketplace context. However, TTAB rules require that such evidence be printed or captured in a form that preserves the URL and access date. Failing to include these identifiers may result in exclusion of the evidence, regardless of its substantive value.
The TTAB has confirmed in several cases that properly authenticated Internet evidence can be as probative as printed publications. This includes business websites, news archives, and even search engine results pages so long as they are presented in compliance with evidentiary rules. Nonetheless, while the TTAB has modernized its approach, it continues to draw a distinction between credible online sources and user-generated or unverifiable content.
Strategic Use of Internet Evidence in Trademark Litigation
Internet evidence can strengthen a party’s case in multiple ways. For example, it can establish a mark’s fame or renown by showing widespread online use and recognition. It can also demonstrate third-party usage of similar marks, supporting a defense of weak distinctiveness. Likewise, web-based materials may reveal how consumers encounter a mark in the marketplace, which is often critical in determining likelihood of confusion.
For plaintiffs, Internet evidence may be used to show prior use, industry reputation, or the existence of a competing mark that dilutes the strength of the defendant’s registration. For defendants, it can help disprove claims of fame or show that a plaintiff’s mark is descriptive or generic based on widespread industry use.
However, practitioners must remember that relevance alone does not guarantee admissibility. Each document introduced through a Notice of Reliance must correspond to an appropriate evidentiary category such as official records, printed publications, or discovery responses. Misclassifying evidence or failing to identify its purpose can render it inadmissible.
Common Pitfalls When Submitting Internet Evidence
One of the most frequent mistakes parties make is assuming that Internet materials automatically qualify as “printed publications.” While the TTAB has accepted online sources under this category, they must still meet specific requirements. Submissions lacking a URL, publication date, or sufficient indicia of authenticity are often rejected. Additionally, parties should avoid submitting raw data or unauthenticated digital files, such as screenshots without timestamps or web pages that can no longer be accessed online.
Another pitfall is overloading the record with duplicative or irrelevant online materials. The TTAB values clarity and conciseness, and large, disorganized submissions can obscure key arguments. Moreover, simply attaching dozens of web pages without explanatory context may lead the Board to disregard much of the material. A clear, strategic approach that ties each document to a specific legal argument is far more effective.
Motions to Strike and Procedural Compliance
Opposing parties frequently challenge Notices of Reliance on procedural grounds. A motion to strike may be filed if the Notice is untimely, lacks a proper explanation of relevance, or includes documents that do not fall within the recognized evidentiary categories. While the TTAB often allows parties to cure technical defects, it may strike the evidence entirely if compliance is not achieved.
Therefore, parties should ensure their Notices of Reliance are filed within the assigned testimony period and follow the procedural rules meticulously. Each filing should specify not only the type of evidence but also why it is admissible and how it supports the case. Maintaining this precision reflects professionalism and helps preserve the credibility of the evidence before the Board.
Practical Considerations for Entrepreneurs and Startups
For small businesses and startups, TTAB proceedings can feel complex and intimidating. Yet, mastering the basics of Internet evidence and Notices of Reliance can make a significant difference in protecting one’s brand. Properly curated online materials such as customer reviews, press coverage, or social media engagement can illustrate genuine use and marketplace recognition of a mark. Conversely, failure to present such evidence correctly may leave a brand vulnerable to cancellation or opposition.
Working with an experienced trademark attorney ensures that each evidentiary step complies with TTAB standards. At Cohn Legal, PLLC, our team specializes in helping entrepreneurs and growing brands navigate TTAB procedures confidently. We understand that your brand is everything and that every piece of evidence matters. From identifying the right Internet exhibits to drafting compliant Notices of Reliance, we simplify the process so you can focus on building your business.
Final Thoughts
The TTAB’s acceptance of Internet evidence reflects an evolution in trademark law that acknowledges the realities of modern commerce. Nevertheless, admissibility depends on strict procedural adherence. A properly executed Notice of Reliance can solidify your case, while a careless filing can undermine it. By understanding the Board’s evidentiary expectations and preparing strategically, businesses can transform online materials into powerful legal tools that protect and enhance their brand identity.
Your brand deserves protection grounded in precision and expertise. If you’re preparing for a TTAB proceeding or facing an opposition, our team at Cohn Legal, PLLC is ready to help you present your best case. Think big, protect your dreams, and let’s simplify this IP process together.