Plaintiff sued defendant claiming that defendant wrongfully scraped sales listings from plaintiff’s website and copied those listings on defendant’s own website. It brought the following claims:
- Violation of the Copyright Act’s prohibitions against distributing false copyright management information (“CMI”) (17 U.S.C. §1202(a)), and removing or altering CMI (Id., §1202(b)); and
- Violation of the Lanham Act for reverse passing off and false endorsement.
Defendant moved to dismiss for failure to state a claim upon which relief could be granted. The court granted the motion.
It also dismissed plaintiff’s claim for removal of CMI because it found that the allegations concerning the CMI allegedly removed – a copyright notice found at the bottom of the pages of plaintiff’s website – covered the pages of the website itself, not the particular listings that were allegedly copied without the CMI. It held that:
Lanham Act claim
On the Lanham Act claim, the court found that plaintiff failed to allege that it had a protectible mark that was being used in a manner that was likely to cause confusion among consumers.
The court also applied the 2003 Supreme Court case of Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003) to find that plaintiff’s Lanham Act claim failed. In Dastar, the Supreme Court concluded that “false designation of origin” as it is used in the Lanham Act attaches to the producer of tangible goods that are offered for sale, and not to the author of any idea, concept, or communication embodied in those goods. In this case, the defendant created the final product (website listings), albeit using the plaintiff’s content (just like in Dastar). Because plaintiff was not the source of the product (the duplicated listings), it did not have a claim under the Lanham Act.
Alan Ross Machinery Corp. v. Machino Corporation, 2018 WL 6018603 (N.D.Ill. November 16, 2018)