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The hazards of citing to Wikipedia

By J. DeVoy

This should be obvious, but the TTAB has commented on the matter in a surprisingly important case.  The Trademark Trial and Appeal Board’s decision in General Motors LLC v. Sweeney, gave GM a dangerous warning that the Corvette brand is not to be taken for granted.  GM’s counsel submitted a sparse evidentiary record in opposing the registration of Sweeney’s proposed mark, Corvoltte, under International Class 12 (for “electric vehicles, namely, automobiles”).  One of those sources, comprising a non-trivial percentage of the evidentiary record, was the Wikipedia entry for Corvette – presumably the Chevrolet Corvette, as there is more than one.

As the colloquialism goes – and the TTAB concurs – talk is cheap:

There is no evidence of sales, advertising or the extent of the mark’s renown. To the extent that opposer has relied on the Wikipedia evidence to establish the fame of the CORVETTE mark, an Internet entry is admissible for the limited purpose of demonstrating what has been printed, not for the truth of what has been printed. […] Suffice it to say, opposer’s evidence falls far short of establishing the fame or renown of its CORVETTE mark. (p 4.)

The TTAB cites Safer Incorporated v. OMS Investments Incorporated, 94 USPQ2d 1031, 1040 (TTAB 2010) for the proposition that such entries are admissible to show only what is written, and not the statements’ veracity.  That case is not the first time the TTAB has considered Wikipedia and wiki-type sites cited as evidence, though.  In re IP Carrier Consulting Group, 84 USPQ2d 1028, 1032 (TTAB 2007) cut to the heart of the matter, as the TTAB wrote “There are inherent problems regarding the reliability of Wikipedia entries because Wikipedia is a collaborative website that permits anyone to edit the entries” in its opinion.  In re Total Quality Group, Inc., 51 USPQ2d 1474, 1475-76 (TTAB 1999)  also dealt with these issues, questioning the weight to give internet sources of unknown origin.  Good news, though: Unlike the Corvette decision, these are all citable precedent.

Citations to Wikipedia are not outright inadmissible.  In In re Bayer Aktiengesellschaft, the Federal Circuit held that articles accessed on the Internet are admissible as evidence available to the general public, but must be carefully evaluated because of reliability concerns. 488 F.3d 960 (Fed. Cir. 2007).  Similarly, the Southern District of New York has provided some guidance in how to approach Wikipedia articles used as evidence.  Because of the adversary system inherent in legal disputed, the information in a Wikipedia entry “is not so inherently unreliable” to make it inadmissible per se. Alfa Corp. v. OAO Alfa Bank, 475 F. Supp. 2d 357, 362 (S.D.N.Y. 2007).

The federal judiciary isn’t as curmudgeonly as a sociology professor insisting that you can never cite to wikipedia as authority.  Generally speaking, you shouldn’t.  User-generated sources can be very helpful, though, in showing common understandings and uses of words, terms and other phrases, which are particularly important in trademark disputes.  To that extent, it’s a net positive that Wikipedia entries aren’t inadmissible.  But, given the ease of subterfuge, it should be an evidentiary last resort.

As for the beloved Corvette, the TTAB found a likelihood of confusion under Section 2(d), and the applicant’s mark was denied registration (to nobody’s great surprise).  The DuPont factors ultimately weighed in Corvette’s favor, as the goods, channels of trade, targeted purchasers and marks themselves were virtually – if not actually – identical. See In re E. I. du Pont De Nemours & Co., 177 USPQ at 567 (CCPA 1973).  A brand of less renown, however, may not have fared as well as GM’s historically relevant Corvette if faced with a similar challenge – especially if relying on Wikipedia as evidence.

H/T: TTAB Blog

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