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Internet Trademark Case Summaries

Telewizja Polska USA, Inc. v. Echostar Satellite Corp.

2004 WL 2367740, 65 Fed. R. Evid. Serv. 673 (N.D. Ill. Oct. 15, 2004)

Telewizja Polska (“Polska”) was a Delaware-based public distributor of Polish-language television and radio programming. Defendant EchoStar Satellite (“Echostar”) was a satellite broadcaster of television and radio programming throughout the United States. In 1998, Polska contracted with EchoStar to provide Polish-language television and radio programming to its customers on a subscription basis. Pursuant to the three-year agreement, Polska granted EchoStar a license to use its trademarks to market the subscription package to its customers. After the agreement ended in 2001, EchoStar continued to use Polska's name and trademarks to market Polska's programming to new subscribers. Polska sued for trademark infringement and breach of contract, among other claims. Prior to trial, Polska filed a motion in limine to exclude several Echostar trial exhibits, including screenshot printouts of Polska’s website from the Internet Archive’s “Wayback Machine.” The Wayback Machine allows a user to obtain an archived web page as it appeared at a particular moment in time. Polska argued that the Internet Archive printouts were unauthenticated and constituted hearsay under Federal Rules of Evidence 901 and 801, respectively. The court denied Polska’s motion. First, it found that the printouts were introduced to show the images and text found on Polska’s website, and were not “statements at all” and thus did not constitute hearsay. The court also viewed the contents of Polska’s website as an admission of a party-opponent (i.e., Polska) and thus were non-hearsay. The court also rejected Polska’s argument that the printouts had not been properly authenticated because Echostar submitted an affidavit from Molly Davis, an Internet Archive employee, who verified “that the Internet Archive Company retrieved copies of the website as it appeared on the dates in question from its electronic archives.” Although the court recognized that “the Internet Archive does not fit neatly into any of the non-exhaustive examples listed in Rule 901,” Polska submitted no evidence that the Internet Archive was unreliable or biased. Nor did Polska deny that the printouts were accurate depictions of its website at the times in question. Accordingly, the court viewed the Davis affidavit as “sufficient to satisfy Rule 901’s threshold requirement for admissibility.”