A federal judge in Philadelphia has granted summary judgment to the defendant on all counts in a dispute between two companies that publish electronic databases of college course catalogs.
The same claims brought by the same plaintiff against the same defendant are also the subject of a federal court case in California. Defense counsel in the Eastern District of Pennsylvania case said the opinion rendered in Philadelphia could have a decisive effect in the California federal litigation.
U.S. District Judge Mary McLaughlin of the Eastern District of Pennsylvania held that Internet users are sophisticated enough that they wouldn’t be misled by sponsored links in search engine results and that the Computer Fraud and Abuse Act clearly protects against unauthorized access of information, not unauthorized use of information.
“The modern Internet user’s increasing level of experience with search sites decreases the likelihood that they would be confused by the advertisements at issue in this case,” McLaughlin said, considering the claims of trademark infringement.
CollegeSource had accused AcademyOne of infringing on its trademark by buying from various search engines the right to have terms including “college source” trigger AcademyOne’s website to show up as a sponsored link. Google calls them “AdWords,” a term that McLaughlin adopted in her opinion.
Citing several recent cases, McLaughlin found that Internet users are becoming increasingly sophisticated in interpreting search results and those who are looking up information on transferring college credits are sufficiently savvy. The two companies offer online copies of college course catalogs so that students can evaluate how their credits can transfer, according to the opinion.
“Given the importance of their inquiries, they have an incentive to be discerning about the search results they choose to trust,” McLaughlin said.
She weighed the trademark and Lanham Act claims according to the traditional test to determine the likelihood of confusion between marks laid out by the U.S. Court of Appeals for the Third Circuit in its 1983 opinion in Interpace v. Lapp, commonly referred to as the Lapp factors.
However, she also noted that the specific context of the claim on the Internet should put a different emphasis on the Lapp factors.
“The Ninth Circuit has recently addressed the issue of purchasing a competitor’s trademarks as AdWords to generate search engine hits,” McLaughlin said, referring to that court’s 2011 opinion in Network Automation v. Advanced Systems Concepts. “It held that certain factors (namely the strength of the mark, evidence of actual confusion, types of goods and degree of care likely to be exercised by the typical purchaser, and the labeling and appearance of the advertisements) were most relevant in AdWords advertising cases.”
The only one of those factors that fell in CollegeSource’s favor was the strength of the mark. McLaughlin held that the mark is “conceptually strong,” classifying it as “suggestive,” and she held that it has been used by CollegeSource for nearly 20 years, costing hundreds of thousands of dollars to advertise. McLaughlin assigned the other three factors to AcademyOne’s favor.
There was scant evidence of confusion, McLaughlin held, and she looked to the comprehensive appearance of the search-result Web page presented to searchers when she weighed the appearance of the advertisement factor.
“AcademyOne did not use CollegeSource’s marks in the actual advertisements themselves; rather, the marks were used as triggers which prompted the advertisements to appear,” she said, noting also that AcademyOne’s search results showed up in a clearly differentiated section of the page labeled “sponsored links.”
Similarly, going back to the sophistication of the searcher, McLaughlin said, “The level of consumer care and skill is highly relevant to the likelihood of consumer confusion. Modern Internet users, particularly ones who are interested in credit distribution in higher education institutions, are not likely to be confused by Internet advertising.”
Turning to CollegeSource’s claims brought under the CFAA, McLaughlin held that its “argument fails because it refers to unauthorized use, not unauthorized access.”
CollegeSource had argued that it wouldn’t have authorized AcademyOne’s access to its CataLink service for the purpose of taking information to be used for a competing service, which rendered AcademyOne’s action unauthorized in violation of the CFAA.
CataLink is a nonsubscriber service offered by CollegeSource whereby it stores colleges’ course catalogs on its site, but links to the colleges’ Web pages in such a way that a user might not even know he or she has left a school’s Web page when he or she views the catalog, according to the opinion.
CataLink is open and available to the public without a subscription or password, McLaughlin said, adding that it is intended to make the colleges’ course catalogs available to the public.
“AcademyOne, as a member of the public, would have had authorization if it had used the data for noncommercial-related purposes; by CollegeSource’s account, it is only because AcademyOne’s use was inappropriate that it became unauthorized. The argument is insufficient to support a CFAA claim,” McLaughlin said.
To violate the act, she said, “one must intentionally access a protected computer without authorization, and as a result recklessly cause damage or loss.”
AcademyOne didn’t do that, she said.
Of CollegeSource, David Landau said, “It’s a complete loss for them on every single claim.” Landau, of Duane Morris in Philadelphia, represented AcademyOne.
“This case has got so many aspects to it, which makes Judge McLaughlin’s opinion that much more significant,” he said.
The defense team plans to move for summary judgment in the California case as well, Landau said, explaining that they believe McLaughlin’s opinion will have “a preclusive effect.”
That case, he said, involves the “same parties. Exact same claim. Exact same facts.”
Darren Quinn of Del Mar, Calif., represented CollegeSource and couldn’t immediately be reached for comment.
(Copies of the 57-page opinion in CollegeSource v. AcademyOne, PICS No. 12-2077, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •