Judicial Notice of Internet Evidence — Notice Taken of Wayback Machine Results over Objection

UL LLC v. Space Chariot, Inc., 2017 U.S. Dist. LEXIS 60585 (C.D. Cal. April 20, 2017):

The Court finds this motion appropriate for decision without oral argument. See Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. Accordingly, the hearing date of April 24, 2017 is vacated, and the matter is hereby taken under submission.

I. INTRODUCTION

On November 3, 2016, plaintiff UL LLC filed this action against defendants The Space Chariot, Inc., Kevin Walker, Donabelle Escarez Mortel (aka Donabella Mortel), and John Does 1-10. Dkt. 1. ... The gravamen of UL's complaint is that Space Chariot, Walker, and Mortel ("defendants") are using UL marks on various websites to falsely represent that [*2]  Space Chariot's goods—namely, hoverboards—have been certified by UL.

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Having carefully [*4]  considered the parties' arguments, the Court concludes as follows.

II. BACKGROUND

The following facts are not in dispute unless otherwise noted.

UL owns the well-known UL-in-a-circle certification mark ("Certification Mark") and variations thereof, along with the UL Service Mark (collectively, "UL Marks"). Dkt. 50-2, UL's Statement of Controverted Facts ("SUF") at no. 1. The Certification Mark appears as: . Dkt. 6, Declaration of Robert J. Pollock ("Pollock Decl."), Ex. B. The Service Mark appears as: UL. Id. Ex. C. UL has registered the Certification Mark (U.S. Reg. No. 782,589; U.S. Reg. No. 2,391,140) and the Service Mark (U.S. Reg. No. 4,201,014) with the U.S. Patent and Trademark Office. SUF at no. 3. UL's federal registrations for the Certification Mark have reached incontestable status pursuant to 15 U.S.C. § 1115(b). SUF at no. 4. UL has the exclusive right to use the UL marks and authorize customers to use the UL marks. SUF at no. 6; dkt. 6, Pollock Decl. Exs. A-C.

To obtain UL certification and listing in the UL certification directory, manufacturers submit representative product samples to UL for evaluation and testing. SUF at no. 7; Pollock Decl.¶ 19. If representative samples [*5]  comply with the applicable safety, performance, or other standard, UL may authorize the manufacturer to affix the UL Certification Mark to that product. SUF at nos. 7-8; Pollock Decl. ¶ 20.

Space Chariot is a California corporation that sold hoverboards and was founded by Walker, who holds himself out as Space Chariot's president and chief executive officer. SUF at no. 11. The parties dispute whether Mortel was an officer of Space Chariot. See Defs. SMF at 12. Nevertheless, it not disputed that Mortel stated on her LinkedIn Account that she was a Vice President of Space Chariot. See dkt. 5, Ex. D (Mortel's LinkedIn profile); dkt. 65, Declaration of Donabelle Mortel ("Mortel Decl.") ¶ 3. Furthermore, both Walker and Mortel promoted Space Chariot hoverboards via their personal social media accounts. SUF at no. 15.

The parties dispute when defendants began advertising Space Chariot's hoverboards as UL certified. See Defs. SMF at nos. 16-17. Defendants contend they only advertised their hoverboards as UL certified when Deep Vapes received its UL 2722 certification in June 2016. Defs. SMF ¶ 16. However, defendants do not contest or challenge the authenticity of evidence demonstrating that [*6]  Space Chariot's Facebook page advertised their hoverboards as "safety certified" along with images of the UL Certification Mark as early as December 2015. Dkt. 50-6, Ex. 17. In addition, on or about January 21, 2016, Kevin Olive—Investigation Manager for UL—visited the Space Chariot website, which included the statement "ALL Space Chariots are UL CE FCC RoHS Safety Certified," using what appears to be the UL Certification Mark. Dkt. 5, Declaration of Kevin Olive ("Olive Decl.) ¶ 8 & Ex. A. On January 27, 2016, in an email exchange between Olive and info@spacechariot.com , "Steven," a "Space Chariot Specialist" stated that "All our our products are safety certified (ROCH, UL, etc.)[.]" Olive Decl. Ex. E. On April 8, 2017, the Space Chariot website stated that "All Space Chariots are UL, CE, FCC and RoHS safety certified!" Olive Decl. ¶ 19 & Ex. F. Space Chariot continued to use on its website what appears to be the UL Certification Mark along with a statement that all of their products were UL certified on February 6, March 22, and April 19, 2016, and on October 9, 2017. SUF at no. 25; dkt. 50-6, Ex. 19.2

 


Defendants object to the admission of images of the Space Chariot website obtained through the internet archive "Wayback Machine" in Exhibit 19 because the images are introduced through the declaration of Cameron M. Nelson, who purportedly lacks the requisite personal knowledge because neither Nelson nor his staff archived the images of Space Chariot's website from the Wayback Machine. Dkt. 68. However, "[c]ourts have taken judicial notice of the contents of web pages available through the Wayback Machine as facts that can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned[.]" Erickson v. Nebraska Mach. Co., No. 15-cv-01147-JD, 2015 U.S. Dist. LEXIS 87417, 2015 WL 4089849, at *1 (N.D. Cal. July 6, 2015); see also Pond Guy, Inc. v. Aquascape Designs, Inc., No. 13-13229, 2014 U.S. Dist. LEXIS 85504, 2014 WL 2863871, at *4 (E.D. Mich. June 24, 2014) ("As a resource the accuracy of which cannot reasonably be questioned, the Internet Archive has been found to be an acceptable source for the taking of judicial notice."); Martins v. 3PD, Inc., No. 11-cv-11313, 2013 U.S. Dist. LEXIS 45753, 2013 WL 1320454, at *16 n.8 (D. Mass. Mar. 28, 2013) (taking judicial notice of "the various historical versions of a website available on the Internet Archive at Archive.org as facts readily determinable by resort to a source whose accuracy cannot reasonably be questioned"); [*7]  Foreword Magazine, Inc. v. OverDrive, Inc., No. 1:10-cv-1144, 2011 U.S. Dist. LEXIS 125373, 2011 WL 5169384, at *3 (W.D. Mich. Oct. 31, 2011) ("[T]he federal courts have recognized that Internet archive services, although representing a relatively new source of information, have sufficient indicia of reliability to support introduction of their contents into evidence, subject to challenge at trial for authenticity."). Accordingly, the Court takes judicial notice of the archived SpaceChariot.com webpages because they "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b)(1).

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