Trademark Use in a Fleeting Digital Landscape: Evidentiary Challenges in the Era of Short-Lived Content
Trademark communication has changed rapidly in recent years. Campaigns that once remained available for months in catalogues, magazines, packaging or corporate materials may now exist for only a few hours in stories, livestreams, short-form videos, targeted advertisements and influencer-generated content. This transformation has expanded the reach of brands and made communication more dynamic, but it has also created a significant legal challenge: how can a trademark owner demonstrate, years later, that a mark was actually used in a particular market when the primary content evidencing such use has already disappeared?This issue is particularly relevant in legal systems where the maintenance of trademark rights depends on evidence of use, whether to defend against cancellation actions based on non-use, support opposition proceedings or establish the acquisition of rights. In Brazil, Article 143(I) and (II) of the Industrial Property Law (Law No. 9,279/1996) provides for the cancellation of a trademark registration where use of the mark has not commenced in Brazil within five years from the date of registration, or where such use has been interrupted for more than five consecutive years. Under paragraphs 1 and 2 of the same provision, the trademark owner bears the burden of proving use or justifying non-use on legitimate grounds.Although the applicable rules vary across jurisdictions, trademark offices and courts generally require evidence capable of establishing when, where, how and to what extent the mark was used.In the digital environment, however, gathering this information is not always straightforward. A screenshot may show a mark in connection with a product or service, but it does not necessarily establish the date on which the content was published, the territory it reached, the number of consumers exposed to it or the existence of genuine commercial activity. The difficulty becomes even greater where an advertisement was targeted at specific audiences, where the content was available only within an application or where the relevant platform no longer provides access to historical reports.At the core of the issue is the difference in pace between the marketplace and the legal system. Digital advertising is designed to be immediate and, in many cases, temporary, whereas proof of trademark use may only be required years after the relevant campaign. In Brazil, such evidence is typically submitted in the context of administrative non-use cancellation proceedings before the Brazilian Patent and Trademark Office (Instituto Nacional da Propriedade Industrial – INPI), as governed by INPI/PR Resolution No. 247/2019. By the time such proceedings arise, the webpage may have been modified, the post deleted, the account deactivated, and the agency responsible for the campaign may no longer retain the original files or underlying data.Comparative law provides useful illustrations of these evidentiary requirements. In the European Union, Article 58(1)(a) of Regulation (EU) 2017/1001 makes the continued validity of an EU trademark registration subject to “genuine use” of the mark. In the landmark case Ansul BV v Ajax Brandbeveiliging BV (C-40/01), the Court of Justice of the European Union defined genuine use as actual use consistent with the essential function of a trademark—namely, to guarantee the origin of the relevant goods or services—rather than merely token use. The EUIPO Guidelines (Part C, Section 6) further require evidence addressing the time, place, extent and nature of use. In the United States, 37 C.F.R. § 2.56 and the Trademark Manual of Examining Procedure (TMEP § 904.03) require webpages submitted as specimens to include the URL and the date on which the webpage was accessed or printed. In the United Kingdom, under Section 46 of the Trade Marks Act 1994, which provides for revocation following a continuous five-year period of non-use, trademark owners may likewise be required to submit evidence concerning sales, advertising, periods of use and geographic reach.Despite differences in detail, these systems converge on a common concern: digital evidence must be placed in context. An isolated image may be insufficient where it does not allow the relevant authority to verify its source, date or connection with actual commercial activity.Territoriality is one of the most sensitive aspects of this analysis. The mere fact that a webpage is accessible online does not mean that the trademark has been commercially used in every country from which the content could theoretically be viewed. A campaign may be technically accessible worldwide while having been created and targeted exclusively at consumers in a particular market. Accordingly, evidence of use in a given jurisdiction may include the language of the content, the currency displayed, available delivery options, geographic areas served, access data and campaign targeting reports. Such elements help establish not only that the communication existed, but that it was in fact directed at consumers in the relevant territory.The extent of use also requires careful consideration. The number of followers, views, likes and shares may help establish exposure to a trademark, but these metrics do not necessarily correspond to genuine commercial activity. Their evidentiary value is considerably stronger when supported by purchase orders, invoices, sales reports, contracts, proof of delivery or other documentation linking the advertising activity to the relevant market.The same reasoning applies to content published by influencers, distributors, franchisees or licensees. A third-party post may constitute relevant evidence, but the trademark owner may need to demonstrate that the use occurred with its authorization. Agreements, campaign guidelines, content approvals and payment records can help establish the connection between the publication and the trademark owner’s commercial strategy.Another challenge concerns the authenticity of the evidence. Screenshots are easy to create and alter: dates may be changed, information removed and webpages recreated after the relevant period. This does not make screenshots inherently unreliable, but it does require additional care in preserving and substantiating them.In Brazil, a notarial record (ata notarial), as provided for under Article 384 of the Brazilian Code of Civil Procedure (Law No. 13,105/2015), can be particularly useful in this context. Because it provides public faith as to the existence and content of a webpage at a particular point in time, it may reduce some of the evidentiary weaknesses associated with an ordinary screenshot. It does not, however, replace the other elements necessary to establish trademark use. A notarial record may demonstrate what was available on a webpage on a particular date, but it does not necessarily establish the commercial reach of that content, the territory actually targeted or the length of time during which the mark was used.Whenever possible, trademark owners should preserve digital content in a complete form, including the webpage address, the date of capture, identification of the relevant account and elements showing how the material was presented to the public. For temporary or interactive content, screen recordings may be more useful than static images.Reports generated by digital platforms should also be retained, as they may establish the period during which content was displayed, the audience reached, the countries involved, targeting parameters and advertising spend. When combined with commercial records, these data can help build a more coherent and persuasive evidentiary record. In this context, artificial intelligence tools designed for document management—which can automatically index and associate evidence with particular trademarks, products and territories—are also emerging as valuable resources, provided they are used subject to appropriate data governance and integrity controls.Evidence preservation should therefore begin before any dispute arises. By the time a company receives a cease-and-desist letter, becomes involved in opposition proceedings or is required to defend its registration against a non-use cancellation action, a significant portion of the relevant information may already have been lost. Trademark portfolio management should therefore include a digital evidence retention policy. This does not mean turning every marketing campaign into a burdensome administrative procedure, but rather creating a minimum set of records capable of supporting future claims, including key advertising materials, performance reports, geographic targeting settings and commercial documents relating to the campaign, stored in an organized manner and clearly identified by trademark, product, country and relevant period.For corporate groups operating across multiple markets, it is particularly important to document which campaigns were used in each jurisdiction, thereby avoiding the submission of materials relating to one country as though they automatically evidenced trademark use in another. Such an error may undermine the credibility of the overall case in non-use cancellation or opposition proceedings.Moreover, evidence that is accepted in one jurisdiction may be regarded as insufficient in another. The solution is not necessarily to establish an entirely separate preservation process for every territory, but rather to retain a broad, organized and reliable body of evidence that can subsequently be adapted to local requirements as needed.Legal departments, however, cannot carry out this task in isolation. The relevant information is typically controlled by marketing, e-commerce and technology teams, external agencies, distributors and other business partners. Effective trademark protection therefore depends on an integrated approach, in which legal teams provide guidance on the types of materials that have evidentiary value, while the teams responsible for campaigns ensure that those materials are properly preserved.Agreements with agencies, influencers, distributors and technology providers should also reflect this reality. Companies should contractually secure the right to receive and retain original files, publication records, audience reports and targeting data, including after termination of the relevant commercial relationship. Without such provisions, critical information may remain under the control of third parties and become unavailable when it is ultimately required. For more significant arrangements, it is advisable to establish minimum retention periods, delivery formats and cooperation obligations in connection with trademark-related disputes.The digital environment has not made evidence of trademark use less important—it has made that evidence more volatile. A campaign may reach millions of consumers and yet leave behind very few verifiable records once the underlying content disappears.Accordingly, in today’s environment, trademark management does not end once a campaign goes live. It also requires ensuring that the company’s commercial presence can be demonstrated in the future. In an era of fast-moving communications and short-lived content, a trademark owner that fails to preserve its own history may discover too late that being present in the marketplace and being able to prove that presence are two very different things.Talita Orsini de Castro Garcia, Beatriz Fonseca and Luiza Fernandes.
