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Web archives: Is this an admissible mode of proof…

Vanessa Bouchara

Updated on December 16, 2021

Web archives: Is this an admissible mode of proof of infringements of intellectual property rights on the Internet?

When a rights holder notices an infringement of his intellectual property rights on the Internet - infringement of his trademark, his copyrights, the rights he holds in designs and models or any other infringement, the question of the proof of the infringement is essential.

LEvidence gathered before the action is taken may be insufficient. The question then arose as to whether it was possible to prove the infringement of rights on the Internet afterward by using the Web Archives website, which makes it possible to consult the content of websites as it was at times determined from the past.

Thus, the Web Archives site will make it possible to know whether a website has been used in an interrupted manner or even what was the content of the site on the dates on which it was "sucked up" by the web archives.

The first decision referring to the Web Archives was rendered in 2004 (TGI Paris, 3rd Chamber, 1st Section, June 30, 2004).

The TGI considered that the public use of a domain name making it possible to anticipate a brand later could be proven by the search results on the archives.org site.

Then, the position of the Courts, in particular on the admissibility of the modes of proof, evolved.

From 2010 to 2014, several decisions were rendered, both by the Paris Court of Appeal and by the Paris Tribunal de Grande Instance, refusing to consider that the Web Archives were a reliable mode of proof.

Before the Court of Appeal, a report had been drawn up on the archives.org site and had made it possible to identify the existence of pages infringing the applicant's rights to the procedure.

The Court of Appeal, however, considered "that the indication of the aforementioned dates on the search results page relating to the archived pages of the M6 Boutique site during the years 1996 to 2009 of the The Wayback Machine site and at the bottom of the prints of the screen pages does not establish with certainty that 'on each of these dates, the corresponding screen page was displayed in the printed configuration' (CA Paris, pole 5, ch. 2, July 2, 2010 n°09/12757).

The Court of Appeal noted that the finding had been made from “of an archiving service operated by a third party to the procedure, which is a private person without legal authority, whose operating conditions are ignored” and “it appears from the excerpt from the questions asked about its operation that this research tool is not designed for legal use”.

The Tribunal de Grande Instance of Paris subsequently confirmed the aforementioned decision on several occasions, repeating the reasoning adopted by the Court of Appeal (TGI Paris, 3rd chamber 2nd section, March 9, 2012, No. 10/05343; TGI Paris , 3rd chamber 1st section, 18 September 2012, no. 11/04409; TGI Paris, 3rd chamber 3rd section, 13 September 2013, no. 11/02011).

For the Court, the extracts from the Archives du Web site, even if they were observed by a bailiff, are devoid of probative value.

Thus, this website has not been considered as an admissible form of evidence capable of demonstrating the serious and continuous exploitation of a brand as part of an action trademark lapse, or, as being likely to justify the anteriority of exploitation of a model within the framework of an action on the basis of the copyright.

The Courts seemed fixed on this jurisprudential position, even though this site is a reliable site used by many professionals to learn about the content of sites on dates defined and frozen in the past.

At the same time, experts from theWIPO admitted the validity of information taken from online archiving services such as the Web Archives (OMPI, n° D2011-0421).

On May 19, 2014, the Paris Court of Appeal (Pole 5, Chamber 1) compared websites by referring to the archive.org website.

In May 2014, the Technical Board of Appeal of the EPO (European Patent Office) rendered a particularly interesting decision since it ruled on the validity of the mode of proof constituted by consulting the Web Archives site.

The Board of Appeal of the EPO reconsiders the decision of the Office having considered that, as a matter of principle, Internet archives are not reliable.

For the Board of Appeal of the EPO, unless special circumstances cast suspicion on the content of the archives present on www.archive.org, the fact that a document has been thus archived constitutes in itself a sufficient presumption that the document has been made accessible to the public. For the Chamber, although this source may sometimes be incomplete, this does not affect the credibility of the information available.

The EPO Board of Appeal explains how the Web Archive works and clarifies that it is a private, not-for-profit archiving initiative that makes past snapshots of the Internet available to the general public. and which since its creation in 1996 has become very popular and enjoys a good reputation.

Thus, it is not enough for the party contesting this evidence to limit itself to invoking a lack of reliability of the Internet archive in order to cast doubt on the date of public accessibility of a document archived on this site.

This is what the Paris TGI held in 2017 by admitting the admissibility of a bailiff's report established on archive.org when “the defendants confined themselves to questioning the probative force of this finding as coming from an archiving site third to the procedure, without producing any element likely to contradict it” (TGI Paris, 3rd ch., 2nd sect., 27 Jan. 2017, n°13/09456).

It was then the Paris Court of Appeal which finally made a reversal of case law, rejecting the requests for annulment of the judicial officer's report on the grounds that “all the technical prerequisites on the archiving site having been met, it cannot be considered that the operations of the judicial officer […] would not be reliable or necessarily devoid of any probative value” (CA Paris, pole 5, ch. 2, July 5, 2019, n°17/03974).

Thus, as soon as the technical prerequisites have been respected by the judicial officer during his verbal report, in accordance with the AFNOR standard of 2010, the proof of the content of the archives.org site is admissible.

Since then, case law has continued to accept the admissibility of evidence by bailiff's report of the content present on internet archive sites, such as archives.org or Wayback Machine, in particular by the Lyon Court of Appeal, or again from the Paris Court of Appeal who rejected the request of a party who had requested the exclusion of a document or a bailiff's report on the grounds that they were not reliable ( CA Lyon, ch. 3 A, March 4, 2021, n°18/02696; CA Paris, pole 5, ch. 1, March 2, 2021, n°19/01351).

In a recent dispute relating to a counterfeit of models opposing the companies MONOPRIX and COMPTOIR DES COTONNIERS, the probative value of the pages from the archive.org site was not even discussed before the judges (CA Paris, Pôle 5 – chamber 2, November 26, 2021, n° 20/ 03316)

As part of an action in trademark lapse (ALFEO sign), theINPI recalled the position of the Court of Appeal of Paris to reject the plaintiff's argument that “the screenshots of the home page of the website www.alfeo-coc.com from the website archives.org are inadmissible in court because they were taken under unknown conditions” (INPI, July 28, 2021, DC 20-0095).

These contents are therefore admissible in terms of proof of use of trademarks.

The Grenoble Court of Appeal went further with regard to screenshots, and considered that "if the court must assess the probative value of the exhibits submitted to it, this does not make these exhibits inadmissible, so that the appellant's request that they be excluded from the proceedings must be rejected" (CA Grenoble, January 28, 2021, No. 18/01581).

This decision must however be tempered by the fact that the reliability of such captures is difficult to establish without the assistance of a judicial officer.

It is in this sense that the Montpellier Court of Appeal rejected screen prints on the grounds that they did not guarantee the reliability of their media, content and dates (CA Montpellier, May 15, 2020, No. 17/02469) .

In conclusion, if it is necessary to regulate the production of evidence produced in the context of legal proceedings, it is also essential to use developments in technology and to use them to prevent infringements from being improperly challenged before courts.

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