If you are in the habit of reading online terms and conditions, you may have encountered a provision that looks something like this:
You may not use the site to gain competitive intelligence about [Provider] to compete with [Provider] or its affiliates.
A court recently held that a provision containing essentially this language was not enforceable against a competitor accused of accessing and copying website content. The court found the provision to be an overly broad non-compete covenant under applicable state law, and likely against public policy. For this reason (among others), the court denied the plaintiff website owner’s motion for a temporary restraining order against the defendant competitor.
The court observed that the restriction was without any geographic or temporal limit. Nor was the provision saved by the requirement that use of “competitive intelligence” be the subject of restricted use. In this particular case, plaintiff was complaining of defendant’s use of information on the publicly-visible portions of plaintiff’s website. Under Illinois law, in order for a covenant not to compete be enforceable, the covenant must secure some “protectable interest” such as a trade secret. For purposes of denying the motion for a temporary restraining order, the court found that a covenant restricting the use of such widely disseminated, freely available information is likely unenforceable.
TopstepTrader, LLC v. OneUp Trader, LLC, 2017 WL 2798397 (N.D. Ill. June 28, 2017)
About the Author: Evan Brown is a Chicago technology and intellectual property attorney. Call Evan at (630) 362-7237, send email to ebrown [at] internetcases.com, or follow him on Twitter @internetcases. Read Evan’s other blog, UDRP Tracker, for information about domain name disputes.
Amway Global v. Woodward, 2010 WL 3927661 (E.D.Mich. September 30, 2010)
Amway Global went after some of its former distributors in arbitration for, among other things, violating the “Rules of Conduct” which serve as an agreement as to how the distributors (formally known as Independent Business Owners or “IBOs”) operate. Amway claimed that the IBOs violated the Rules of Conduct by soliciting others to leave Amway and join competing enterprises.
The arbitrator found in Amway’s favor, and Amway filed a motion with the court to confirm the award. The court granted the motion.
One of the factual questions was whether one of the IBOs violated the rules against solicitation by blogging about his decision to leave Amway and join another company. One of his posts said “[i]f you knew what I knew, you would do what I do.”
The IBOs argued that this statement did not constitute actionable solicitation because the communication was passive and untargeted, and because there was no evidence that anyone responded to the solicitation by leaving Amway.
The court rejected these arguments. As to the “passive and untargeted” argument, the court observed that:
[C]ommon sense dictates that it is the substance of the message conveyed, and not the medium through which it is transmitted, that determines whether a communication qualifies as a solicitation. The [statement] is readily characterized as an invitation for the reader to follow his lead and join [Amway’s competitor], and this is true despite the diffuse and uncertain readership of the site.
As to the argument based on the fact that no one responded, the court found that the express language of the nonsolicitation clause which prohibited “encourag[ing], solicit[ing], or otherwise attempt[ing] to recruit or persuade any other IBO to compete with” Amway did not turn on the success of those prohibited efforts.