Originally posted 2012-02-09 13:59:20. Republished by Blog Post Promoter

The TTABlog writes about a recent TTAB decision rejecting “Wayback Machine” data as evidence:

The Board observed that the “Wayback Machine” suffers from a serious evidentiary flaw: even Petitioner noted that the “Wayback Machine” shows “each date on which a website has undergone a significant change.” “What may be insignificant to the archivers for the ‘Wayback Machine’ may have significance from the standpoint of evidentiary value in a trademark proceeding.”

It’s not just that.  In a recent case, we considered the use of such material, and on due diligence were informed that even a given page in the Wayback Machine is not definitively made up only of HTML that was present on a given website on the date claimed.  We were given to understand that gaps are “filled” in later, or with earlier files, or that there can otherwise be mixing and matching.  In short, this is a phenomenal research tool — but hard to authenticate for purposes of retrospectively proving what was on a website, when.

UPDATE: Here’s some scholarly thinking on the topic.

By Ron Coleman

I write this blog.

2 thoughts on “Going Wayback… and it’s out of here!”
  1. I had a very well known bankrupt retailer send me a screenshot from the Wayback machine to prove their trademark hadn’t been abandoned. On closer inspection, it actually turned out that the website hadn’t been updated in years, offering the same exact goods for sale on a broken website. Even where the Wayback machine is “correct” in what was displayed on a certain date, it doesn’t necessarily mean much.

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