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IP Court considered characteristics of screenshots when proving infringement of exclusive right on the Internet

Managing Partner / Patent Attorney of the Russian Federation / Eurasian Patent Attorney

According to the circumstances of the case No. А18-3502/2021, the defendant entrepreneur posted on the marketplace website advertisements for the sale of goods bearing the trademark "PULOKA", the copyright holder of which filed a lawsuit demanding the termination of the illegal use of the mark and the recovery of compensation in the amount of 290,000 rubles. In support of the claims, the plaintiff submitted screenshots from the marketplace website.

In dismissing the claim, the court of first instance found that the claims did not indicate when the right holder became aware of the infringement of the exclusive right to the trademark, while the date directly affects the assessment of the admissibility of evidence. The court also emphasized that screenshots of Internet pages without the presentation of a protocol of notarial examination of these pages are inadmissible evidence.

Having re-examined the case file, the court of appeal did not agree with these conclusions, noting that the screenshots are admissible evidence, because their notarial examination is not obligatory. The court accepted the screenshots because they contained a website address, an online retail platform, a seller, and a trademarked product. As a result, the court came to the conclusion about the validity of the stated requirements in full.

Thus, the courts differed in assessing two characteristics of a proper screenshot at once - the presence of the date of compilation in it and the need for notarization.

Recognizing as appropriate the argument of the cassation complaint about the groundlessness of the conclusion of the court of appeal, the court of cassation recognized the screenshots as improper.

The court pointed out that, according to paragraph 55 of the Decree of the Plenum of the Supreme Court of the Russian Federation of April 23, 2019 N 10, the law does not limit the list of admissible evidence on the basis of which the fact of violation of the exclusive right is established, therefore the court has the right to accept any means of proof provided for by procedural legislation, including printouts of materials from the Internet made and certified by the persons participating in the case, indicating the address of the page from which the printout was made, as well as the exact time it was received.

At the same time, the submitted screenshots did not contain such information, which hindered the possibility of establishing the exact date of the infringement imputed to the defendant based on the date of granting legal protection to the plaintiff's trademark. Thus, in assessing this aspect, the court of cassation agreed with the opinion of the court of first instance.

But with regard to the notarial certificate, the cassation pointed out the opposite.

Referring to Article 102, 103 of the Fundamentals of the Legislation of the Russian Federation on Notaries of February 11, 1993 N 4462-I, the court recalled that evidence can be provided by a notary if there is reason to believe that their presentation will subsequently become impossible or difficult. This led to the conclusion that the current legislation does not oblige to provide evidence in a notarial way (this is the right of the party to the process, and not its obligation and does not deprive the evidence of their probative value).

Managing Partner / Patent Attorney of the Russian Federation / Eurasian Patent Attorney