Wayback Machine — Testimony of Witness with Knowledge of How Internet Archive Works Required for Authentication — Testimony from Creators of Sites as to How They Looked Years Earlier Inadequate to Authenticate Archived Pages

Specht v. Google, Inc., 2014 U.S. App. LEXIS 6318 (7th Cir. April 4, 2014) (affirming the decision excerpted in our blog post of June 25, 2011):

During the dot-com boom of the 1990s, Erich Specht founded Android Data Corporation, and registered the "Android Data" trademark. The company ceased principal operations in 2002, but the Android Data mark remained registered to it. Five years later, Google Inc. rolled out its new Android operating system for mobile phones. Specht responded with this suit against Google, alleging primarily that, by releasing the Android operating system, Google had infringed on his Android Data mark. Google counterclaimed that Specht had abandoned the mark after 2002, [*2] forfeiting his ability to assert any rights to it. Because we agree with the district court that the undisputed evidence in the record establishes that Specht abandoned the mark, we affirm the district court's grant of summary judgment to Google.

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After Google moved for summary judgment, the parties locked horns over what evidence was properly before the court. Google challenged the admissibility of a slew of Specht's evidence. Relevant to this appeal, Google challenged Specht's attempts to submit screenshots from webpages of Specht's former clients from 2005, bearing the Android Data mark. The contested screenshots were from an internet archive service. The district court excluded these screenshots because, without an affidavit describing the reliability of the archive service, they were not properly authenticated. See Fed. R. Evid. 901. Specht also brought evidentiary  [*7] objections of his own. As relevant here, he objected to Google's screenshots of Specht's own website from August 2010 and to two of Google's press releases from November 2007 about the Android operating system. But the district court overruled both objections because Specht had submitted an identical screenshot and had alleged in his complaint the information from the press releases.

Evidentiary issues resolved, the district court addressed the merits. It found that Specht had abandoned the mark in 2002; the few times Specht used the Android Data mark after 2002 did not demonstrate continued use or intent to resume use of the mark. Because Specht therefore had forfeited any rights he might have to the mark, the district court ruled that all of Specht's claims failed as a matter of law. The district court also issued Google's requested declaration, and canceled Specht's registration.

Analysis

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Specht's second procedural challenge concerns evidentiary rulings that the district court made before ruling on Google's summary judgment motion. He contests the exclusion of the screenshots of certain client websites as they supposedly appeared in 2005, bearing the Android Data mark. He argues that the screenshots are admissible because the creators of the sites asserted from memory that the screenshots reflected how those sites appeared in 2005. But the district court reasonably required more than memory, which is fallible; it required authentication by someone with personal knowledge of reliability of the archive service from which the screenshots were retrieved. See United States v. Bansal, 663 F.3d 634, 667-68 (3d Cir. 2011)  [*10] (screenshots from internet archive authenticated via testimony of witness with personal knowledge of how internet archive works). Specht also argues that the district court improperly took judicial notice of news articles reflecting Google's assertion that it first used "Android" in commerce in November 2007. But the fact that Google first released a version of the Android software in November 2007 was alleged in Specht's complaint. That allegation is binding on Specht at summary judgment. See Crest Hill Land Development, LLC v. City of Joliet, 396 F.3d 801, 805 (7th Cir. 2005); Keller v. United States, 58 F.3d 1194, 1199 n.8 (7th Cir. 1995).

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