Precedential No. 18: TTAB Extends Safer Rule To Internet Evidence During Ex Parte Prosecution

Observing that there are no precedential decisions regarding an examining attorney's failure to properly submit Internet evidence, the Board ruled that both applicants and examining attorneys must include the URL and the date the webpage was accessed. If an applicant does not object to the examining attorney's failure to do so, "the Board will consider the website for whatever probative value it may have." If the applicant fails to do so without objection from the examining attorney, the Board may consider the objection waived. In re Mueller Sports Medicine, Inc., Serial No. 87209946 (May 16, 2018) [precedential] (Opinion by Judge Marc A. Bergsman).

Until Safer Inc. v. OMS Inv. Inc., there was no requirement that a party include a webpage address when introducing a webpage into evidence in an inter partes proceedings. [Now codified in Trademark Rule 2.122(e)]. The TMEP adopted the Safer requirements for examining attorneys in ex parte proceedings. TMEP §