WIPO Webinar for Judges: Digital Evidence in Trademark Cases

In the adjudication of trademark disputes, the outcome can depend heavily on the quality and reliability of the presented evidence.  With the proliferation of online platforms and technologies, the evidence used in trademark cases has also significantly transformed to include different types of digital evidence.  From social media posts and website screenshots to analytics data and metadata, digital evidence is used to demonstrate genuine use, provide insight on consumer confusion, and prove infringement.

The growing reliance on digital evidence in trademark disputes has prompted jurisdictions to develop rules and establish court practices for determining the admissibility of digital evidence and assessing its weight.  When considering questions on the admissibility and reliability of digital evidence in trademark cases, judges may be asked to address, among other issues, discrepancies in upload or print dates, the authenticity of printouts from editable versus non-editable websites, the credibility of third-party sources, and questions surrounding the admissibility of digital formats such as motion pictures and social media analytics.

The recent “Siemens”, “Hailiang”, “BURBERRY”, and “Xiaomi” trademark infringement disputes illustrate the use of digital evidence in trademark cases in China.  These cases involved judicial consideration of issues such as the use of network data, trusted timestamps and blockchain to prove the existence of infringement, as well as the use of network electronic evidence to establish the amount of damages.

The effectiveness of digital evidence in proving a claim heavily depends on how well it is collected, preserved, and authenticated, as well as its compliance with jurisdiction-specific legal requirements.  In Lacoste & Anr. v Crocodile International Pte Ltd. & Anr., the Delhi High Court declined to admit digital evidence because the required certificate under Section 65B of the Indian Evidence Act, 1872 was not provided.

Conversely, when digital evidence is properly authenticated and used in conjunction with other evidence, it can significantly strengthen a case.  In Oriflame Cosmetics AG v EUIPO/Caramé Holding AG (T-74/23), the General Court of the European Union evaluated whether the applicant provided sufficient proof of genuine use of its earlier figurative trademark, which included, among other evidence, the use of the trademark on social media platforms and digital marketing materials.  The General Court emphasized that such evidence, including online product images, was relevant to the case, and a trademark’s presence on social media can constitute a significant factor in demonstrating genuine use.

Join the next WIPO Webinar for Judges to learn from the insights and experiences of Justice Prateek Jalan (Delhi High Court, India), Judge Louise Spangsberg Grønfeldt (General Court of the European Union, Luxembourg), and Judge Yan Jing (Third Civil Division, Supreme People’s Court, China).  With reference to the highlighted judgments, the interactive webinar will explore issues such as:

• Judicial consideration of digital evidence, including key factors examined by courts in trademark cases;
• Admissibility standards for digital evidence in trademark disputes;
• Illustrative cases where digital evidence, such as social media posts and network, timestamp, and blockchain data, has been considered by courts in adjudicating trademark disputes; and
• Specific challenges for judges in adjudicating trademark cases involving digital evidence.

The webinar will be conducted on January 22, 2025 (13.00 – 14.30 CET, find your local time) in English and Chinese, with simultaneous interpretation in Arabic, Chinese, English, French, Russian and Spanish.  Participation is open only to judges of courts and adjudicators of quasi-judicial appeal bodies of Intellectual Property Offices.

Please register in order to participate in the webinar.  Registration will be open until 18.00 (CET) on January 20, 2025.  For any questions, contact the WIPO Judicial Institute at judicial.institute@wipo.int.

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