The University of Kansas sued a sportswear company claiming violations of state and federal trademark laws through the unauthorized and unlicensed sale of the school’s apparel. Univ. of Kan. v. Sinks, 565 F. Supp. 2d 1216; 2008 U.S. Dist. LEXIS 23765 ( D. Kan., March 19, 2008 ).
The Plaintiff offered internet postings to show confusion and consumer reaction to the Defendant’s products. The Defendant brought a motion to strike the blog postings as inadmissible hearsay.
Plaintiffs claimed the blog postings were not offered for the truth of the matter asserted, but to show the state of mind of the posters under Federal Rule of Evidence 803(3). This Rule states:
Then existing mental, emotional, or physical condition. A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.
The parties engaged in a battle of precedents, with the Defendants citing cases where internet evidence was barred as “any evidence procured off the Internet is adequate for almost nothing, even under the most liberal interpretation of the hearsay exception rules found in Fed. R. Civ. P. 807.” Univ. of Kan. v. Sinks, 1230, citing St. Clair v. Johnny’s Oyster & Shrimp, Inc., 76 F. Supp. 2d 773, 774 (S.D. Tex. 1999).
The Plaintiffs in turn cited cases where hearsay evidence from the internet was admissible, including where internet postings were admitted “as evidence of confusion because they were not submitted for the ‘truth of the matter asserted’ and did not violate the hearsay rule.” Univ. of Kan. v. Sinks, 1231, citing RDK Corp. v. Larsen Bakery, Inc., No. 02-C-0675, 2006 U.S. Dist. LEXIS 53298, at *31, (E.D. Wis. July 31, 2006).
The Court found the hearsay evidence was not offered for the truth of the matter asserted, but to support the claim of actual confusion. The internet postings were only to be admitted to prove the state of mind of the posters, namely, they were confused. Univ. of Kan. v. Sinks, 1231.
Cases like this will likely walk a fine line. Courts will guard against hearsay being offered for the truth of the matter asserted. However, considering the numerous ways people can express themselves online from blogs to Facebook status messages to to tags on photos to Twitter, these issues will continue to be litigated.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016, the Web 100 from 2017 to 2018, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.