LUXCO, INC. v. YELLOWSTONE VALLEY BREWING, LLC, 92042950 (TTAB 1-8-2008)
Cancellation No. 92042950United States Patent and Trademark OfficeTrademark Trial and Appeal Board
Mailed: January 8, 2008
THIS OPINION IS NOT A PRECEDENT OF THE T.T.A.B.
Michael R. Annis and Alan S. Nemes of Blackwell Sanders Peper Martin LLP for Luxco, Inc.
Donald D. Sommerfeld of Towe Ball Enright Mackey Sommerfeld PLLP for Yellowstone Valley Brewing, LLC.
Before Grendel, Holtzman and Mermelstein, Administrative Trademark Judges.
Opinion by Holtzman, Administrative Trademark Judge:
Petitioner, David Sherman Corporation (now Luxco, Inc. by change of name), filed a petition to cancel a registration owned by Yellowstone Valley Brewing, LLC (respondent) for the mark YELLOWSTONE VALLEY BREWING (in typed form) on the SupplementalPage 2
Register for “beer, ale, stout, malt beer, lager, wort beer, and porter” in Class 32.[fn2] The word BREWING is disclaimed.
As its ground for cancellation, petitioner asserts priority and likelihood of confusion under Section 2(d) of the Trademark Act. Petitioner alleges that respondent’s mark when applied to respondent’s goods so resembles petitioner’s previously used and registered mark YELLOWSTONE for “whiskey” (Registration No. 280199) as to be likely to cause confusion.
Respondent filed an answer, with exhibits, arguing the merits of the likelihood of confusion claim, but essentially denying the salient allegations in the petition.
Petitioner, during its testimony period, submitted the testimony, with exhibits, of Donn S. Lux, president and chief executive officer of Luxco, Inc. and three notices of reliance on 1) a status and title copy of its pleaded registration; 2) printouts of news articles from the Nexis database; and 3) printouts of pages from respondent’s website. Respondent, for its part, submitted a notice of reliance on 1) “previous discussion and Exhibits” in its answer; 2) “summary of the Registrant’s technical expertise in data analysis”; 3) “assessment of sales data provided by the Petitioner”; 4) “discussion of the irrelevance” of an article attached to petitioner’s second notice of reliance; and 5) “Petitioner’s lack of evidence to support” its case.Page 3
Both parties have filed briefs.
EVIDENTIARY MATTERS
To begin with, the exhibits attached to respondent’s answer, consisting of a page allegedly from petitioner’s website and photographs and other depictions alleged to be of the parties’ product labels and packaging, are not evidence on behalf of respondent. See Trademark Rule 2.122(c); and TBMP ? 704.05(a) (2d ed. rev. 2004). Such materials must be properly identified and introduced in evidence during respondent’s testimony period in order for the Board to consider them. Id. Furthermore, respondent’s arguments in its answer concerning evidence, whether such evidence was attached to the answer (i.e., the web page and examples of product packaging and labels) or not (i.e., references to Google search results, telephone directory listings and trademark search reports) will not be considered. See TBMP 704.06(a), supra.
With that in mind, we turn to petitioner’s objections to respondent’s notice of reliance, and we find the objections, for the most part, to be well taken. We point out that the sole purpose of a notice of reliance is to provide notice of the evidence the party intends to rely on in support or in defense of its case, not to argue the evidence or the issues. That is the function of a brief on the case, which is filed after all evidence has been submitted. However, respondent’s notice ofPage 4
reliance consists primarily of untimely arguments on the merits, as well as unsupported factual assertions and improper materials.
Item 1 of the notice, which refers back to respondent’s “previous discussion and Exhibits” presented in respondent’s answer to the petition, will not be considered. As noted, none of these exhibits were properly of record with the answer, and moreover, none of the exhibits were attached to respondent’s notice of reliance as required by Trademark Rule 2.122(e).
Furthermore, the “exhibits” which were attached to the answer would not even be proper subject matter for a notice of reliance. Only certain types of materials are admissible by a notice of reliance. Such materials include “official records,” which are those records prepared by a public official, and “printed publications” such as books and periodicals, available to the general public in libraries or of general circulation among members of the public. See Trademark Rule 2.122(e). Web pages and other Internet materials and examples of product packaging and labels do not fall into either category of acceptable materials. See, e.g., Alfacell Corp. v. Anticancer Inc., 71 USPQ2d 1301, 1302 n. 3 (TTAB 2004) (Internet evidence is not proper subject matter for a notice of reliance); Raccioppi v. Apogee Inc., 47 USPQ2d 1368, 1370 (TTAB 1998); Minnesota Mining Manufacturing Co. v. Stryker Corp., 179 USPQ 433, 434 (TTAB 1973) (product booklets and product brochures not admissible by noticePage 5
of reliance); and TBMP ?? 704.07 and 704.08, supra, and cases cited therein.
Items 2 and 3 consist of the asserted “technical expertise in data analysis” of Dr. George K. Moncure, who identifies himself as “the registrant,” and his “assessment” of petitioner’s evidence of sales. Dr. Moncure’s expert qualifications are irrelevant and are also tantamount to unsworn testimony. Respondent has also attached two graphs to the notice. The graph in “figure 1,” based on respondent’s description, is simply a pictorial representation of the sales summary introduced by petitioner. We will consider the graph solely for that purpose and only to the extent that it accurately charts petitioner’s sales figures. The graph shown in “figure 2” is not admissible as it is entirely unclear what evidence in the record it is intended to reflect or even whether it is based on any evidence in the record.
Item 4 of the notice which consists of arguments concerning the relevance of certain Nexis articles submitted by petitioner’s notice of reliance, and item 5, consisting of arguments regarding the asserted differences in packaging and labeling for the products and the lack of actual confusion have not been considered. Respondent is of course entitled to argue the merits of petitioner’s claims and the probative value and weight of any evidence in the record. To the extent respondent has made suchPage 6
arguments in its brief, and they are supported by the record, the arguments will be considered.[fn3] See TBMP ? 704.06(b), supra.
We turn next to a matter concerning one of petitioner’s notices of reliance. Petitioner’s third notice of reliance consists of printouts of pages allegedly from respondent’s website. As we noted above with respect to respondent’s evidence, website materials are not admissible by notice of reliance. Accordingly, this evidence will not be considered. See Trademark Rule 2.123(l) (“Evidence not obtained and filed in compliance with the rules of practice governing inter partes proceedings before the Board will not be considered by the Board.”).
We turn finally to petitioner’s motion to strike all or parts of respondent’s brief. The motion to strike the brief, in its entirety, for failure to comply with Trademark Rule 2.128 which requires “an index of cases cited” is denied.[fn4] This omission is not particularly significant and moreover, it benefits the Board in our determination of the issues to have the briefs of both parties.
Petitioner’s motion to strike certain portions of the brief is denied, as well. It is the Board’s policy not strikePage 7
arguments from a brief. See TBMP ? 539, supra. To the extent, however, that respondent makes unsupported arguments based on evidence which has not been introduced, or properly introduced, into the record, such evidence and arguments will not be considered. See TBMP ? 704.06(b), supra.
STANDING
Petitioner has established its standing to bring the petition to cancel by properly introducing a status and title copy of its pleaded registration for the mark below for “whiskey” in Class 33, showing that the registration is in effect and that it is owned by petitioner, Luxco, Inc.[fn5]
PRIORITY
In a cancellation proceeding, where both parties own registrations, petitioner must prove priority of use. See Brewski Beer Co. v. Brewski Brothers, Inc., 47 USPQ2d 1281 (TTAB 1998) and cases cited therein. Because petitioner’s registration is properly of record, petitioner may rely on its registration as proof that the mark was in use as of the filing date of the underlying application. See J. C. Hall Company v. HallmarkPage 8
Cards, Incorporated, 340 F.2d 960, 144 USPQ 435, 437 (CCPA 1965) (“The presumption of use emanating from the fact of registration relates back to the filing date of the application on which the registration is predicated.”).
The filing date of petitioner’s underlying application is September 26, 1930.[fn6] This date is long prior to the December 26, 2000 filing date of respondent’s underlying application. It is also prior to respondent’s first use date which petitioner concedes in its brief at p. 7, was in 1997. Thus, petitioner has established its priority.
LIKELIHOOD OF CONFUSION
Our determination under Section 2(d) is based on an analysis of all of the probative facts in evidence that are relevant to the factors bearing on the likelihood of confusion issue. In re E.I. du Pont de Nemours
Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). We discuss the relevant duPont factors below.
Fame or Relative Strength of Petitioner’s Mark
The fame of a mark, if it exists, “plays a `dominant role’ in the process of balancing the du Pont factors.” Recot Inc. v. Becton,214 F.3d 1322, 54 USPQ2d 1894, 1897 (Fed. Cir. 2000). Because of the deference given to famous marks and dominant rolePage 9
fame plays in the likelihood of confusion analysis, “it is the duty of a plaintiff asserting that its mark is famous to clearly prove it.” Blue Man Productions Inc. v. Tarmann, 75 USPQ2d 1811, 1819 (TTAB 2005). We find that the evidence is not sufficient on this record to prove that petitioner’s YELLOWSTONE mark is famous.
The mark has been in use for over 75 years. However, long use alone is insufficient to show public recognition of the mark. Petitioner has submitted a summary of its sales figures for the 16-year period from 1993-2006, noting that its total sales volume for that period exceeds $16,250,000. This figure does not seem extraordinary on its face for a 16-year period. Nor has petitioner provided any context for this figure such as the volume of sales relative to petitioner’s competitors in the market or evidence of petitioner’s market share for the goods. See Bose Corp. v. QSC Audio Products, 293 F.3d 1367, 63 USPQ2d 1303, 1309 (Fed. Cir. 2002). Also, the summary shows a steady decline in sales for each year since 1993, to the point where the total sales volume for 2006 is only about one quarter of what it was in 1993. This tends to reflect a continuing downward trend in consumer awareness or recognition of the mark over the years.
Petitioner has spent a total of approximately $150,000 for the three-year period from 2004 to 2006 to advertise and promote its whiskey. Petitioner’s whiskey is promoted to consumers through various forms of point of sale displays, one of whichPage 10
features a reprint of an article from the 1999 issue of Wine Enthusiast, a trade magazine, giving YELLOWSTONE whiskey a taste rating of 86 out of 100. Petitioner also provides ad slicks that retailers can use to advertise the whiskey in newspapers, but there is no information as to where, when or how often such advertisements were actually run. All of this promotional material is made available on petitioner’s website and any of it can be accessed by distributors and/or retailers to use at their discretion, but petitioner does not keep track of how frequently the materials are downloaded or printed.
Mr. Lux testified in general terms that its whiskey is sold in 19 states, including Kentucky, Colorado, Wyoming, Montana, North Carolina and Virginia, and that the product is sold in all the usual retail outlets for alcoholic beverages, as well as in restaurants and bars. There is no evidence as to the number of such retail outlets or restaurant/bar locations where the product may be purchased.
Petitioner’s evidence falls short of establishing the “extensive public recognition and renown” required for fame. See Kenner Parker Toys Inc. v. Rose Art Industries Inc., 963 F.2d 350 22 USPQ2d 1453, 1456 (Fed. Cir. 1992). However, the evidence is sufficient to indicate some degree of consumer exposure and demand for the product over the years and therefore to infer that the mark has achieved at least some degree of recognition and strength in the market. Thus, we find that the mark is entitledPage 11
to a relatively broad scope of protection. See Kenner Parker Toys, supra at 1456 (“A strong mark. . .casts a long shadow which competitors must avoid.”)
Respondent, however, argues that “Yellowstone” as a geographical term is an inherently weak mark, “deserving the least amount of protection.” Respondent contends, in effect, that petitioner’s mark is geographically descriptive of its goods and that the mark “has not obtained a secondary meaning.” (Brief, pp. 2, 3 and 6.)
Respondent’s arguments are unpersuasive. The mere fact that the term is geographic does not automatically mean the mark is geographically descriptive or that it is weak. It is well established, as stated in In re Nantucket, Inc., 677 F.2d 95, 213 USPQ 889, 895 (CCPA 1982), that “A geographic term may be used in a manner which is. . .inherently distinctive, which includes arbitrary and suggestive usage. . . .” Indeed, petitioner’s YELLOWSTONE mark is registered on the Principal Register without a claim of acquired distinctiveness under Section 2(f) of the Trademark Act, and as such, the mark is presumed to be inherently distinctive. To contend otherwise, as respondent has done here, constitutes an impermissible collateral attack on the registration.[fn7]
Furthermore, because petitioner’s mark isPage 12
registered on the Principal Register without a Section 2(f) claim, the mark may be considered, at most, only suggestive of the goods.[fn8]
In addition, respondent has not submitted any evidence that the term “Yellowstone” is commonly used by others on similar goods, or any other evidence which might tend to diminish the market strength of petitioner’s mark or the corresponding scope of protection to which the mark is entitled.[fn9]
Marks
We turn next to a comparison of petitioner’s mark,
as shown in its pleaded registration, with respondent’s mark YELLOWSTONE VALLEY BREWING and the similarity or dissimilarity of the marks in their entireties in terms of sound, appearance,Page 13
meaning and commercial impression. See Palm Bay Imports, Inc. v. Veuve Clicquot Ponsardin, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005).
While marks must be compared in their entireties, one feature of a mark may have more significance than another, and in such a case there is nothing improper in giving greater weight to the dominant feature. See In re National Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985). When we compare the marks in their entireties, giving appropriate weight to the features thereof, we find that the differences in the marks are far outweighed by their similarities.
The dominant portion of petitioner’s mark is the word YELLOWSTONE. The very similar term YELLOWSTONE VALLEY is the most significant component of respondent’s mark. These are the portions of the respective marks that convey the strongest impression, and they are very similar in sound and appearance. Furthermore, YELLOWSTONE and YELLOWSTONE VALLEY connote the same, or variations of the same, geographic region, and they convey a similar image and overall commercial impression.
Although respondent’s mark also includes the disclaimed word BREWING, that word is given little weight in our comparison of the marks because it is generic or so highly descriptive of beer that it is not capable of indicating source. See In re National Data Corp., supra at 751 (“That a particular feature is descriptive or generic with respect to the involved goods orPage 14
services is one commonly accepted rationale for giving less weight to a portion of a mark”).
In addition, it is the word YELLOWSTONE itself, in petitioner’s mark, rather than the particular display of that word or the design element, that is more likely to have a greater impact on purchasers and be remembered by them. See CBS, Inc. v. Morrow, 708 F.2d 1579, 218 USPQ 198, 200 (Fed. Cir. 1983) (“in a composite mark comprising a design and words, the verbal portion of the mark is the one most likely to indicate the origin of the goods to which it is affixed”). The word portion of a composite word and design mark is generally accorded greater weight because it would be used to request the goods. See In re Appetito Provisions Co., 3 USPQ2d 1553 (TTAB 1987). Furthermore, respondent’s mark, presented in typed form, is not restricted to any particular style of lettering, and thus may be used by respondent in the same slanted and stylized format used by petitioner, thereby increasing the visual similarity of the two marks. See Squirtco v. Tomy Corporation,697 F.2d 1038, 216 USPQ 937 (Fed. Cir. 1983); and Phillips Petroleum Co. v. C. J. Webb Inc., 442 F.2d 1376, 170 USPQ 35 (CCPA 1971).
Respondent argues that the marks are different in appearance and have different meanings. Respondent contends that petitioner’s labels include a depiction of Old Faithful geyser in Yellowstone Park and that the geyser is located in Wyoming, whereas respondent’s labels contain “an artist’s rendition of thePage 15
Yellowstone Valley” which, according to respondent is located in Montana, a different state. (Brief, p. 4.) Respondent further argues that its beers “carry differing product names” such as “Huckle-Wizen” and “Grizzly Wolf Wheat.” Id.
The asserted differences in the labels and packaging for the respective products are not relevant. Aside from the fact that there is no evidence of respondent’s labels properly of record, our evaluation of the marks must be based on the marks as presented in respondent’s registration and petitioner’s pleaded registration. The labels and trade dress are not part of either respondent’s or petitioner’s registered mark. Further, there is no evidence that the geyser and Yellowstone Valley are located in different states or that consumers would be aware of that fact and moreover, even to the extent that is true, it would not distinguish the meaning or commercial impressions conveyed by the marks. Both marks would still be perceived as referring to the same general geographic region.
While there are some differences in the marks, we find that the overall similarities in the marks outweigh such differences. Keeping in mind that the comparison of the marks is not necessarily made on a side-by-side basis and that recall of purchasers is often hazy and imperfect, the differences in the marks are not so significant that they are likely to be remembered by purchasers when encountering these marks at separate times. See In re Mucky Duck Mustard Co., 6 USPQ2d 1467,Page 16
1468 (TTAB 1988) (“the average purchaser retains a general rather than a specific impression of the many trademarks he encounters.”). See also Dan Robbins Associates, Inc. v. Questor Corporation, 599 F.2d 1009, 202 USPQ 100 (CCPA 1979). If used on related goods, these marks may simply be perceived as different versions of the same mark or that they identify different product lines from the same source.
Goods/Trade Channels/Purchasers
Petitioner’s goods are whiskey, and respondent’s goods include beer. Respondent argues that the normal consumer would not confuse the two products; and that the two products are distinct in that beer is fermented and whiskey is distilled and that one product is a hard alcohol, while the other is not. (Brief, p. 3.)
It is true that whiskey and beer are different alcoholic beverages. Obviously purchasers can differentiate the goods themselves, and they are not likely to mistakenly purchase one product for the other. But that is not the issue. The question is whether purchasers are likely to confuse the source of the goods. See Helene Curtis Industries Inc. v. Suave Shoe Corp., 13 USPQ2d 1618 (TTAB 1989). Thus, goods need not be similar or even competitive in nature to support a finding of likelihood of confusion. See Helene Curtis Industries Inc. v. Suave Shoe Corp., 13 USPQ2d 1618 (TTAB 1989). Likelihood of confusion can be found if the respective goods are related in some mannerPage 17
and/or that the conditions surrounding their marketing are such that they would be encountered by the same persons under circumstances that could, because of the similarity of the marks used thereon, give rise to the mistaken belief that they emanate from or are associated with, the same source. See In re Albert Trostel Sons Co., 29 USPQ2d 1783 (TTAB 1993).
Beer and whiskey, both basic alcoholic beverages, are inherently related goods. Even assuming that the products require different methods of production, there is no evidence that consumers would be aware of that fact, or that it would affect their perception of the goods as related.[fn10]
Furthermore, absent any restrictions in the respective registrations, we must presume that petitioner’s whiskey and respondent’s beer are sold through all normal channels of trade for those goods and to all the usual purchasers.[fn11] See Canadian Imperial Bank v. Wells Fargo, 811 F.2d 1490, 1 USPQ2d 1813, 1814-15 (Fed. Cir. 1987). The normal channels of trade for whiskey, as the testimony shows, include warehouse stores, drug stores,Page 18
supermarket and grocery store chains, as well as convenience stores, liquor stores, restaurants and bars. Beer would be sold in many of those same outlets.
The usual purchasers for alcoholic products such as whiskey and beer would include ordinary consumers. Furthermore, these products are relatively inexpensive and may be purchased by consumers casually and on impulse. The purchasers of relatively low cost, frequently replaceable, products are likely to be less careful in their purchasing decisions, and therefore more prone to confusion. See Specialty Brands, Inc.,748 F.2d 669, 223 USPQ 1281 (Fed. Cir. 1984); and In re Martin’s Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289 (Fed. Cir. 1984).
Respondent argues that “much more thought goes into selecting a microbrew” and that consumers take the special attributes of microbrews into account when ordering. (Brief, p. 5.) Even assuming this is true and there were evidence on this point in the record, it is not significant because respondent’s identification of goods is not limited to microbrewed beer or beer brewed in a restaurant. See Canadian Imperial Bank, supra.
Nor is there any evidence that hard spirits are displayed separately and apart from beer in a retail setting, as respondent claims, and again, this fact even if proven would not be significant. Both products would still be encountered by the same purchasers in the same retail outlets, regardless of the specific location of each product in a particular store.Page 19
Furthermore, the two products may not even be purchased at the same time. Consumers who had previously purchased petitioner’s whiskey under its strong and distinctive YELLOWSTONE mark, upon encountering respondent’s beer under the very similar mark YELLOWSTONE VALLEY BREWERY, regardless of where or when they found it, are likely to assume that the two alcoholic beverages are associated with or sponsored by the same company. See In re Majestic Distilling Co. 315 F.3d 1311, 65 USPQ2d 1201, 1204 (Fed. Cir. 2003) (“malt liquor and tequila are similar by virtue of the fact that both are alcoholic beverages that are marketed in many of the same channels of trade to many of the same consumers.”); In re Chatam International Inc., 380 F.3d 1340, 71 USPQ2d 1944 (Fed. Cir. 2004) (beer and tequila closely related); and, e.g. In re AGE Bodegas Unidas, S. A., 192 USPQ 326, 326 (TTAB 1976) (“there is clearly a relationship between wine and whiskey, both of which alcoholic beverages are sold through the same specialized retail outlets to the same purchasers”).
Actual Confusion
Respondent argues that there is no proof of any actual confusion over the 10 year period of contemporaneous use of the respective marks. However, we consider the absence of evidence of actual confusion to be a neutral factor. We have no information properly of record regarding the extent of respondent’s use of its mark or whether a meaningful opportunityPage 20
for actual confusion has existed.[fn12] See Gillette Canada Inc. v. Ranir Corp., 23 USPQ2d 1768 (TTAB 1992). In any event, evidence of actual confusion is not required in order to establish likelihood of confusion. See Gillette Canada Inc. v. Ranir Corp., 23 USPQ2d 1768 (TTAB 1992).
Finally, we do not view the absence of actual confusion as significant in view of all the factors indicating that confusion is likely. See, e.g., On-Line Careline, Inc. v. America Online, Inc., 229 F.3d 1080, 56 USPQ2d 1471 (Fed. Cir. 2000).
Conclusion
In view of the similarity of the marks, and because the goods are closely related and the trade channels and purchasers for the goods are the same, we find that confusion is likely.
Decision: The petition to cancel is granted.
[fn2] Registration No. 2626885, issued September 24, 2002. [fn3] In any event, the Board will consider all evidence that is properly of record and accord the particular evidence its appropriate weight. [fn4] The rules do not, as petitioner claims, require that the brief include a table of contents, statement of the issues, description of the record or recitation of facts. [fn5] Registration No. 280199; Issued February 10, 1931; fourth renewal. [fn6] Petitioner has not, however, established actual use of the mark prior to 1930. Contrary to petitioner’s apparent belief, the registration is not evidence of use as of the 1879 claimed date of first use in the registration. Such date must be established by competent evidence, which has not been done. See Trademark Rule 2.122(b)(2). Mr. Lux testified only as to what the registration shows on its face. (Dep., p. 24.) [fn7] An attack on the validity of a registration pleaded by a petitioner for cancellation will not be heard unless a counterclaim or separate petition is filed to seek the cancellation of such registration. See Trademark Rule 2.114(b)(2)(ii). However, considering that petitioner’s registration is over five years old, a counterclaim on that ground would not even be available to respondent. See Section 14(3) of the Trademark Act. [fn8] Respondent’s reliance on Warwood v. Hubbard, 228 USPQ 702, 702(Mont. 1985) is misplaced. The Court in that case made a finding that YELLOWSTONE OUTFITTERS was primarily geographically descriptive of outfitting services offered in the Yellowstone region, unlike the present case where the geographic descriptiveness of petitioner’s mark is not, and as noted, cannot be, in issue. [fn9] Again, respondent’s references to evidence which is not of record or properly of record and its arguments based on such evidence have not been considered. This includes respondent’s unsupported statements regarding listings of “Yellowstone” allegedly “for a wide variety of products and services” in telephone directories, TESS records, and Google search results. In any event, asserted third-party uses of “Yellowstone” for unrelated goods even if proven would not be relevant to a determination of whether YELLOWSTONE is weak for the goods at issue. [fn10] Petitioner argues, pointing to information contained in the Nexis articles submitted with its second notice of reliance, that respondent plans to expand its operations to distillation of spirits, including whiskey. While the Nexis articles are properly of record, they are admissible and probative only for what they show on their face, not for the truth of any matters contained therein. See TBMP ? 704.08, supra. These articles are inadmissible hearsay as to respondent’s business activities. [fn11] Respondent’s arguments regarding the asserted manner in which the two products are purchased or viewed in a bar or restaurant are not supported by any evidence but more important, are not relevant because the respective identifications of goods are not limited to sale at those venues. [fn12] As we noted, the Nexis articles submitted by petitioner are not of record for the truth of any matters therein. This would include the areas of distribution of respondent’s products, to the extent there is such information in the articles.