Commercial Litigation and Arbitration

Website Authentication — WHOis Search Held Inadequate to Prove Ownership of Website

From Nordica S.p.A. v. ICON Health & Fitness, 2009 U.S. Dist. LEXIS 71385 (D.N.H. Aug. 11, 2009):

The alleged printouts from, although also inadmissible at present, are considerably further along the road toward admission. Nordica submits an affidavit from Chloe A. Hecht, ... as well as a WHOIS report showing that is registered to ICON, ... to lay a foundation for admitting these documents. Hecht's assertions that exhibits 9, 11, 12, and 14-18 are tangible representations of what appeared onscreen is sufficient to authenticate those exhibits. See Kenneth S. Broun, 2 McCormick on Evidence § 227 (6th ed. 2006); see also Nightlight Sys., Inc. v. Nitelites Franchise Sys., Inc., 2007 WL 4563875, at *6 (N.D. Ga. May 11, 2007) ("[A] proponent may authenticate a printout from a website by . . . a witness with personal knowledge of the webpage at issue . . . stating that the printout accurately reflects the content of the page.") This, however, does not make them admissible. For that, the ownership of must be tied to ICON through admissible evidence.

In order to link to ICON, Nordica offers evidence of a WHOIS report showing that the registrant for that web address is "ICON HEALTH & FITNESS, INC." ... WHOIS reports are not sufficient to establish ownership, as courts have recognized that such reports "merely provide contact information for the administrator or registrant of a domain name, and have no bearing on ownership." Dlorah, Inc. v. Nau Holdings, Inc., 2009 WL 1107533, at *3 (D.S.D. Apr. 23, 2009); see Atlas Copco AB v., 533 F. Supp. 2d 610, 613 n.1 (E.D. Va. 2008) (finding that the WHOIS report information about a website's registrant was "false and fictitious"). Thus, although ICON does not dispute what appears to be obvious, namely, that it is responsible for operating, Nordica must take the necessary measures to establish this fact. That leaves the printouts from, and to be admitted, Nordica must demonstrate that they either are not hearsay or fit into recognized a hearsay exception. See United States v. Heijnen, 2005 WL 2271874, at *2 (4th Cir. Sept. 19, 2005) (generally, documents downloaded from the internet are hearsay).

To summarize, while the evidence set forth clearly demonstrates that ICON's subsidiary, ICON IP, has breach the terms of the Agreement, Nordica has not established that ICON can be held liable for the acts of its subsidiary. With respect to ICON itself, Nordica has failed to produce sufficient admissible evidence to establish that ICON has breached the agreement through its own conduct.

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