Judicial Notice of Internet Evidence: Court May Take Judicial Notice of Wayback Machine (Internet Archive) Documents
Safeway Transit LLC v. Disc. Party Bus, Inc., 2018 U.S. Dist. LEXIS 137185, 2018 WL 3831345 (D. Minn. Aug. 13, 2018):
The parties to this case are Twin Cities party bus proprietors. In September 2015, Plaintiff Safeway Transit LLC ("Safeway"), run by Plaintiff Aleksey Silenko, brought this trademark action against Defendants Discount Party Bus. Inc., and Party Bus MN LLC (collectively, "DPB"), owned by Defendant Adam Fernandez. Plaintiffs accuse Defendants of infringing the descriptive marks "RentMyPartyBus" and "952 Limo Bus." The Court conducted a bench trial on May 14, 2018, and the parties provided final written submissions on May 30, 2018. Having considered the evidence and arguments of counsel, the Court now enters the following Findings of Fact, Conclusions of Law, and Order for Judgment, pursuant to Federal Rule of Civil Procedure 52(a)(1).
FINDINGS OF FACT
1. The Findings of Fact set forth herein are undisputed or have been proved by a preponderance of the evidence.
2. To the extent the Court's Conclusions of Law include what [*2] may be considered Findings of Fact, they are incorporated herein by reference.
I. THE PARTIES
3. Around 2000, Adam Fernandez started Party Bus MN - the first party-bus company in the Twin Cities region. (Tr. 120:22-24, 174:22-177:2; see Exs. D6-D7.)1 In 2004, he formed Discount Party Bus Co., LLC, and in 2010, he converted it into Discount Party Bus, Inc. (Tr. 119:22-120:1.) He formed Party Bus MN LLC in 2014. (Tr. 120:22-121:1.) Fernandez is the sole owner, officer, and employee of both companies, which operate as a single entity. (Tr. 119:10-21, 120:2-12.) DPB markets its business at discountpartybus.com and discountpartybusmn.com. (Tr. 124:11-125:4, 128:16-129:3.)
4. In September 2008, Aleksey Silenko formed Party Bus MN LLC and changed its name to Safeway Transit LLC in October 2008. (Tr. 13:22-14:25, 16:13-23; Exs. P1-P2.) Safeway is a competing party bus company serving the Twin Cities region. (Tr. 13:22-14:2.) Silenko is and has always been its director of business, responsible for budgeting, marketing, and operations. (Tr. 13:6-21.) Safeway operates the websites rentmypartybus.com and 952limobus.com. (Tr. 20:1-12, 38:1-11; Exs. P5, P11.)
II. DPB'S PRIOR USAGE
5. DPB used "Party [*3] Bus MN" as a business name beginning no later than 2004. (Tr. 177:5-179:5; Exs. D6-D7.)
6. DPB used "Party Bus MN," "Rent My Party Bus," and "952 Limo Bus" in print advertising before 2008, including on fliers distributed by Fernandez.2 (Tr. 183:19-185:1, 186:9-188:3; Exs. D11-D12.)
7. DPB did not use "Rent My Party Bus" or "952 Limo Bus" online before 2008.3 (Tr. 139:15-18, 140:20-24.) Nor did DPB prove by a preponderance of the evidence that it used "Party Bus MN" online before 2008, although it may have. (See Tr. 15:1-16:4, 142:11-146:22; Exs. P35, D13.)
8. DPB stopped using the three terms no later than 2009 because Safeway began using them. (Tr. 72:13-22, 139:24-142:10.)
III. SAFEWAY'S USAGE
9. Safeway used "Rent My Party Bus" in print advertising beginning no later than 2009, including on fliers distributed by Silenko. (Tr. 22:23-24:1, 28:19-31:7; Ex. P9.) Safeway used "952 Limo Bus" in print advertising beginning in 2013, including with Lavender magazine and on business cards distributed by drivers. (Tr. 57:12-59:6, 67:23-70:15; Exs. P15, P18.)
10. Safeway displayed a "Rent My Party Bus" decal on its first bus in 2008. (Tr. 18:13-20; Ex. P3.) Safeway displayed decals with one or more [*4] of the terms "Rent My Party Bus," "952 Limo Bus," and "Party Bus MN" on all its buses from 2008 to at least 2015. (Tr. 48:12-51:11, 54:25-56:15, 65:12-67:22; Exs. P10, P14, P17.)
11. Safeway registered the domain name partybusmn.com in September 2008, the domain name rentmypartybus.com in October 2008, and the domain name 952limobus.com in May 2011. (Tr. 19:4-20:24, 38:4-21; Exs. P4-5, P11.) Based on Silenko's testimony and Internet Archive captures of the websites from the period in question,4 Safeway operated a website at rentmypartybus.com beginning no later than 2009, operated a website at partybusmn.com that forwarded visitors to the rentmypartybus.com site beginning no later than 2010, and operated a separate website at 952limobus.com beginning no later than 2013. (See Tr. 19:20-25, 20:18-24, 38:20-24; Wayback Machine, http://web.archive.org/web/*/www.partybusmn.com (last visited August 13, 2018); Wayback Machine, https://web.archive.org/web/*/www.rentmypartybus.com (last visited August 13, 2018); Wayback Machine, https://web.archive.org/web/* /www.952limobus.com (last visited August 13, 2018).)
12. Safeway began using the phone number 952-LIMO-BUS to market its "952 Limo Bus" [*5] brand beginning in 2011. (Tr. 36:9-37:23.)
13. Safeway used "Party Bus MN" and "Rent My Party Bus" for online advertising with Facebook beginning no later than 2011. (Tr. 21:11-22:22, 42:23-47:5; Exs. P6, P13.) Silenko testified that Safeway used the two terms for online advertising with Facebook and Google AdWords beginning in 2008 or 2009. (Tr. 25:17-26:7, 41:7-16.) Silenko further testified that Safeway spent "[m]aybe $10,000 a year" on Google AdWords in 2011 to promote the terms and that Safeway increased its budget for Google AdWords each year thereafter. (Tr. 41:7-16, 56:23-57:11.) Although unsupported by documentary evidence, the Court finds Silenko's testimony that Safeway advertised with Google generally credible. However, in light of documentary evidence showing that Safeway spent less than $10,000 on advertising with Facebook from 2011 to early 2015, (see Ex. P13), the Court finds Silenko's testimony that Safeway spent $10,000 per year advertising with Google not credible.
14. Safeway used "952 Limo Bus" for online advertising with Facebook beginning no later than 2013. (Tr. 39:2-21; see Ex. P12.) Silenko testified that Safeway used the term for online advertising with Facebook [*6] and Google AdWords beginning in 2011. (Tr. 39:2-21.) Although unsupported by documentary evidence, the Court finds this testimony generally credible given Safeway's other advertising.
15. Safeway used "Party Bus MN" and "Rent My Party Bus" for Twitter accounts beginning no later than 2014. (Tr. 27:1-28:18, Exs. P7, P8.) Safeway did not prove by a preponderance of the evidence that it used the accounts before 2014.
16. Safeway used "Rent My Party Bus" for online advertising with third-party websites, including The Knot and Wedding Wire, beginning no later than 2015. (Tr. 59:7-62:2; Ex. P16.) Safeway did not prove by a preponderance of the evidence that it used the terms for online advertising with third-party websites before 2015.
17. Over time, Safeway's party-bus business got busy. Its fleet grew from a single bus to 16 or 18 buses in 2015 - more than any of its Twin Cities competitors. (Tr. 31:21-32:25, 54:1-24, 71:8-24.) Silenko testified that Safeway's advertising led to steady growth in the number of people who "Like" and follow its Facebook pages and respond to its posts. (Tr. 32:15-24, 47:16-48:1, 63:5-8.) Although unsupported by documentary evidence, the Court finds this testimony [*7] generally credible given Safeway's growth.
1 Citations to "Tr." refer to the transcript of the trial conducted on May 14, 2018. (Tr. of Trial, May 22, 2018, Docket No. 117.) Citations to "Ex." refer to trial exhibits. (See Joint Ex. List, May 11, 2018, Docket No. 113.)
2 Fernandez testified that DPB used "952 Limo Bus" in print advertising with Twin Cities Fun, but the 2004 and 2007 receipts in evidence are each for an "Online Listing Insertion Order," (Tr. 179:7-185:1, Exs. D1-D4), and the "952 Limo Bus" flier in evidence is undated. (Ex. D12.) As such, there is no documentary evidence proving that "952 Limo Bus" was used in print advertising before 2008. Despite this lack of corroboration, the Court credits Fernandez's testimony that the "952 Limo Bus" flier was used for print advertising before 2008.
3 Although it appears that the 2004 and 2007 Twin Cities Fun receipts were for online advertising, Fernandez testified that DPB did not use the terms online before 2008.
4 The Court may take judicial notice of Internet Archive documents. East Coast Test Prep LLC v. Allnurses.com, Inc., 307 F. Supp. 3d 952, 2018 WL 614732, at *11 (D. Minn. 2018) (citing Marten Transp., Ltd. v. PlattForm Adver., Inc., No. 14-2464, 2016 U.S. Dist. LEXIS 57471, 2016 WL 1718862, at *2-4 (D. Kan. Apr. 29, 2016) (collecting cases)); see Fed. R. Evid. 201(b)(2), 201(c)(1).
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