Website Authenticated by Affidavits of Persons Who Accessed Pages Plus Contents of Printouts — Instagram Comments Relevant for Use of Allegedly Generic Term Regardless of Truth of Commenter’s Attitude Toward Term

Camowraps, LLC v. Quantum Digital Ventures LLC, 2015 U.S. Dist. LEXIS 16091 (E.D. La. Feb. 10, 2015):

Plaintiff, Camowraps, LLC ("Camowraps"), is "a leader in the business of manufacturing, selling, and distributing adhesive vinyl films and products," "which are often sold in camouflage patterns . . . [and] used on vehicles, hunting gear, sports equipment and any items with surfaces to which films can adhere." Camowraps owns U.S. Registration [*2]  No. 2,790,943 for the mark "CAMOWRAPS" and sells its products under that mark.

Plaintiff alleges that defendants, Quantum Digital Ventures LLC and Haas Outdoors, Inc., are infringing on the CAMOWRAPS trademark in violation of federal and state laws by licensing and selling similar vinyl wrap products under identical or confusingly similar marks. Defendants contend that "CAMOWRAPS" is generic and not entitled to trademark protection, which they assert as both an affirmative defense to Camowraps' trademark infringement claims and as a counterclaim requesting that the Court cancel the registration of plaintiff's trademark.

Plaintiff moves for partial summary judgment with respect to defendants' affirmative defense and counterclaim predicated on the purported genericness of the "CAMOWRAPS" [*3]  mark. Defendants move for summary judgment as to (1) their genericness affirmative defense and counterclaim, (2) their fair-use affirmative defense, (3) plaintiff's trademark infringement claim, (4) plaintiff's claim pursuant to the Louisiana Unfair Trade Practices Act ("LUTPA"), and (5) plaintiff's claim for damages, profits, or attorney's fees.


b. Evidentiary Objections

Plaintiff objects on the basis of relevance, authentication, and hearsay to Exhibits E, F, and G, attached to defendants' motion,1 which are printouts of assorted web pages offered to show usage of "camo," "wrap," and "camowraps."2 First, plaintiff objects that some of those materials are irrelevant because they refer to products other than "'plastic laminated films, namely, camouflage adhering films for motor vehicles, and hunting, camping, and sporting equipment' . . . [e.g.] (the goods covered by the CAMOWRAPS mark)." This argument is overbroad because most of the exhibits are relevant to the disputed products and are appropriately considered in connection with these motions. To the extent that plaintiff has more focused relevance objections to particular documents, plaintiff may timely file an appropriate motion in limine in accordance with the Court's scheduling order.

Plaintiff [*8]  also objects to Exhibits E, F, and G on the basis of lack of authentication and hearsay. With respect to authentication, defendants have submitted affidavits of the individuals who accessed the web pages which, in combination with information available on the face of the printouts themselves, suffice to establish that the printouts are what defendants claim them to be as required by Rule 901(a) of the Federal Rules of Evidence. See, e.g., Foreword Magazine, Inc. v. OverDrive, Inc., No. 10-1144, 2011 WL 5169384, at *3 (W.D. Mich. Oct. 31, 2011) (finding "screen shots of Internet websites" authenticated on the basis of affidavits "along with other indicia of reliability (such as the Internet domain address and the date of printout)"). The cases upon which plaintiff relies are inapposite.16

16   For example, in Illusions-Dallas Private Club, Inc. v. Steen, an attorney's affidavit was insufficient to authenticate studies found on the internet, but it was sufficient to "identif[y] the source from which he obtained" those studies, which is all defendants need do in this case to establish [*9]  usage of terms. See 2005 WL 1639211, at *9 (N.D. Tex. July 13, 2005), rev'd in part on other grounds, 482 F.3d 299 (5th Cir. 2007). In addition, the Court attaches no persuasive weight to St. Clair v. Johnny's Oyster & Shrimp, Inc., and its categorical dismissal of "inherently untrustworthy" evidence obtained on "the so-called Web." See 76 F. Supp. 2d 773, 774-75 (S.D. Tex. 1999) (expressing skepticism of "voodoo information taken from the Internet," perceiving the internet to be "one large catalyst for rumor, innuendo, and misinformation" and believing that "hackers can adulterate the content on any web-site from any location at any time") (emphasis in original).

Likewise, the Court is not persuaded by plaintiff's hearsay objections. Although the web page printouts are out-of-court statements, defendants do not offer them for the truth of any matters asserted in those web pages. Rather, defendants offer Exhibits E, F, and G, as evidence of usage of "CAMOWRAPS" and its component terms among purportedly relevant populations. These exhibits are relevant for the purpose of showing that the statements were made and not for the truth of any matter asserted therein. For example, a comment from an Instagram user who "Love[s] the #camowrap on this truck, so realistic!" is relevant for use of the term "#camowrap" regardless [*10]  of the truth of the user's actual feelings of affection.17 See Foreword Magazine, 2011 WL 5169384, at *4 (admitting screen shots of internet sites in trademark case because "these exhibits are offered to show the use of trademarks in commerce or the mentioning of those marks by various news organizations," and not "for the truth of the matter asserted"). Accordingly, plaintiff's hearsay and authentication objections are overruled for the purposes of this motion, although plaintiff may reurge the same objections at trial.18

17   R. Doc. No. 74-12, at 11.

18   Plaintiff's counsel also submits an unusual personal affidavit addressing the purported evidentiary deficiencies of Exhibits E, F, and G. R. Doc. No. 95-4. The Court is not aware of any procedure or mechanism authorizing such an affidavit and, accordingly, the Court construes it only as excess briefing with respect to plaintiff's evidentiary objections.

c. Analysis

With those preliminary issues resolved, the Court finds that summary judgment is not warranted in favor of either party with respect to the question of genericness because of numerous genuinely disputed material facts. For example, although defendants conducted the only consumer survey, the jury could potentially attach little [*11]  or no weight to that survey for the reasons set forth in this Court's prior order and reasons addressing its admissibility. With respect to defendants' examples of usage in the industry, the Court cannot conclude that such evidence is so overwhelming as to compel a jury finding of genericness, or so paltry as to be insufficient as a matter of law to support such a finding. This is particularly true in light of particular criticism raised by plaintiff as to specific exhibits.20

20   R. Doc. No. 95-4, at 5-6 (pointing out web pages which are no longer accessible or could have been hijacked).

Drawing all inferences in the nonmovant's favor with respect to both cross-motions, the Court concludes that the trier of fact could permissibly find that "CAMOWRAPS" is or is not generic. Accordingly, neither plaintiff nor defendants are entitled to summary judgment on that question. Plaintiff's motion for partial summary judgment is denied and defendants' motion is denied as to its affirmative defense and counterclaim.

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