Any IP case that includes website "scraping", "reverse passing off" and both "clickwrap" and "browsewrap" agreements deserves a blog post. In Cvent, Inc. v. Eventbrite, Inc., 2010 U.S. Dist. LEXIS 96354 (E.D. Va. Sept. 14, 2010) (found here), U.S. District Judge Leonie Brinkema ruled that a plaintiff which alleged “scraping” of its website may maintain a claim for “reverse passing off” under the Lanham Act and a claim for unjust enrichment in addition to a copyright infringement claim. The Court, however, dismissed claims under the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030, Virginia’s Computer Crimes Act, Va. Code Ann. § 18.2-152.3, and for both statutory and common law conspiracy. Shortly after Judge Brinkema's decision, the parties entered into a consent order resolving their dispute, which can be found here.
“Scraping” a Website Database
Cvent maintains a website to assist meeting planners in locating venues for large-scale events. The website includes a database of meeting venues with detailed information about capacity, amenities and services. Eventbrite runs a competing on-line event planning website, and Cvent alleged that Eventbrite hired a third-party to “scrape”, or copy, information from Cvent’s database to create its own on-line “Venue Directory.” The gravamen of Cvent’s complaint, was “a claim for intellectual property theft and copyright infringement.” Eventbrite moved to dismiss all of the claims asserted in the Complaint except Cvent’s claim for copyright infringement.
Reverse Passing Off and Unjust Enrichment Claims Allowed to Proceed
Judge Brinkema’s ruling on Cvent’s claim for reverse passing off under the Lanham Act is perhaps the most important part of the decision because of the lack of any prior authority on this issue in the EDVA. In Dastar v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003), the Supreme Court limited the scope of the Lanham Act to “tangible goods offered for sale, and not to the author of any idea, concept or communication embodied in those goods.” Otherwise, a Lanham Act reverse passing off claim would be indistinguishable from a copyright infringement claim.
Judge Brinkema noted a split of authority over whether a plaintiff could bring a Lanham Act claim for copying intellectual property and passing it off as one’s own. She found no controlling precedent in the Fourth Circuit or prior caselaw in the EDVA on the issue. The key factor in her decision was a distinction she made between Cvent’s ideas and its product. Cvent did not allege that Eventbrite passed off its ideas as its own, but rather than it passed off Cvent’s product – its database – as its own. While Dastar referred to “tangible goods,” Judge Brinkema held that the Supreme Court used that language merely to distinguish between “goods” and “ideas” and not to exclude electronic products, such as Cvent’s database, from Lanham Act protection.
Similarly, Cvent’s unjust enrichment claim survived a preemption challenge because Cvent alleged unauthorized scraping and repackaging of its products as opposed to a copyright infringement claim based on the theft of its copyrightable ideas.
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