Southwest’s Efforts to Enforce Browsewrap Terms Isn’t Peanuts

Southwest’s Efforts to Enforce Browsewrap Terms Isn’t Peanuts

Contracts, E-Commerce, Terms of Service
Remember these...? Last month, Southwest Airlines Co. (“Southwest”) filed a complaint in a Federal court in Texas (where the discount fare airline is based) against Kiwi.com, an online travel site. While the lawsuit revolves around Kiwi’s scraping of airfare data from Southwest’s website, as well as violation of the Computer Fraud and Abuse Act (CFAA), it offers some valuable lessons to e-commerce and online businesses relying on “browsewrap” terms for their website. Case Background In the Complaint filed in Southwest Airlines Co. v. Kiwi.com, Inc., No. 21-00098 (N.D. Tex. filed Jan. 14, 2021), Southwest accuses Kiwi of scraping of the airline’s flight and pricing data off of its website and selling Southwest tickets through its own platform (apparently charging service fees on top). Southwest, in its breach of contract count,…
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Repeat After Me—Domains are NOT Trademarks (but Trademarks Can Be Domains)

Repeat After Me—Domains are NOT Trademarks (but Trademarks Can Be Domains)

E-Commerce, Entity Formation, Lanham Act, Trademark, Trademark Infringement
Lately, I've had more than one new business owner client tell me they registered a website domain with their company name and, because they were able to do this, then it must not be a registered trademark and available, right? [I direct your attention to the title of this blog post] No, you cannot just add a word onto someone else's trademark and register that domain A recent situation with a new startup client ran something like this: the founder had selected their company name but had not ever bothered to perform an actual trademark search or "clear" the usage of the name. She subsequently hired my firm to assist with getting their startup formally set up and basic initial documentation and disclosures prepared. At one point, the founder requested…
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‘Red’ Alert: After Redbox, Is It Time to Revisit Your Online Terms of Service?

Contracts, E-Commerce, Technology, Terms of Service
In this article, we discuss one of the more recent and interesting (or, depending on your perspective, exasperating) Federal trial court decisions looking at the enforceability of online terms of service, Wilson v. Redbox, why the case matters, key takeaways for your online business, and what it should be doing in response. A brief re-cap, Wilson, a Redbox user (amazing to think it was not that long ago that we actually went to kiosks for our movies--what a hassle!) sued the popular DVD movie rental company under the Telephone Consumer Protection Act (47 U.S.C. § 227) for continuing to send automatic text messages to her phone despite her having opted out. Redbox’s "Terms of Use" (represented by hyperlinks in both its kiosk and website checkout screens require mandatory arbitration of…
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Does California’s New Data Privacy Law Apply to My Business?

Does California’s New Data Privacy Law Apply to My Business?

Data Protection, E-Commerce, Privacy
Starting January 1, 2020, the California Consumer Privacy Act (CCPA), far and away the broadest consumer data privacy law passed by any State to date, goes into effect.   What is the CCPA? CCPA grants California "consumers" extensive rights as to how their personal information is collected, stored, and used, as well as gives them a private cause of action against businesses who violate its requirements.   For businesses (including those not even located in California) that collect or process the personal information of California consumers, CCPA includes very specific disclosure requirements for those consumers, as well as stiff statutory penalties for failure to comply.   As with the implementation of the EU's General Data Protection Regulation (GDPR) last year, CCPA is causing much hand-wringing among owners and management of…
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Is an Electronic Signature  Legally Enforceable?

Is an Electronic Signature Legally Enforceable?

Contracts, E-Commerce
It's no surprise that digital contracts and other records are becoming the norm in not only consumer-facing transactions, but especially in ones between businesses. In this post, we look at the question to what degree is an electronic or digital signature on such documents actually enforceable? Per usual, let me run through the caveats: I am only licensed to practice law in Arizona.  This article only addresses Arizona law.  If you're an e-commerce or other business utilizing digital agreements and signatures in another state or states other than Arizona, I strongly encourage you to consult the laws of those states or a lawyer licensed in those jurisdictions.  The Arizona Electronic Transactions Act In my Phoenix startup technology law practice, I have definitely noticed more and more clients who have chosen…
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