Website operators can consider a host of potential legal claims against entities that scrape their sites’ content without authorization, such as breach of a well-crafted terms of service agreement, copyright infringement, trespass, conversion, common law misappropriation, unfair competition, violations of the Computer Fraud and Abuse Act, misappropriation of trade secrets, and trademark infringement, among others. Each type of claim has its limits, and multiple claims may intersect or overlap in significant ways, particularly when it comes to preemption or remedies. Accordingly, the nature and context of both the unauthorized web scraping activities and the scraped content should be carefully evaluated to determine an appropriate response.
For example, a recent complaint filed by Southwest against Kiwi illustrates how a data scrape may lead to potential violations of the Lanham Act where the material scraped includes or is used with protected logos and branding. In its complaint, Southwest alleges that Kiwi scraped its airline fares, and displays Southwest’s protected “Heart” mark in conjunction with promoting and re-selling Southwest’s fares on Kiwi’s online travel agency site. Southwest alleges that Kiwi is using its Heart mark in a manner that is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection or association of Kiwi with Southwest, or as to the origin, sponsorship or approval of Kiwi’s goods and services by Southwest in violation of Section 32 of the Lanham Act, 15 U.S.C. § 1114. Southwest has also alleged claims of false designation of origin and trademark dilution under the Lanham Act.
Southwest has also asserted claims of breach of its website Terms & Conditions, violation of the Computer Fraud and Abuse Act, violation of Texas Penal Code § 33.02 (Breach of Computer Security), and common law unjust enrichment. The case is Southwest Airlines Co. v. Kiwi.com, Inc. et al., 3:21-cv-00098, pending in the Northern District of Texas.