Circumscribing the Spider: Trademark Law and the Edge of Data Scraping

Abstract

The practice of web scraping — extracting online data from websites — has become a key strategy and business for many companies. Yet while many profit from scraping, those same organizations and others also wish to resist it. In additional to technical measures, companies have utilized a series of legal claims, such as copyright infringement and violation of the Computer Fraud and Abuse Act (“CFAA”), to attempt to block the scraping of their publicly available data. Several of these traditional claims have been foiled or met with mixed results, suggesting that companies wishing to block scraping practices may wish to look further afield. So far, the Lanham Act has been an underappreciated source of claims that could circumscribe scraping practices. Unlike traditional anti-scraping claims, the Lanham Act claims of trademark infringement, false advertising, and dilution would not block the act of scraping itself. However, they could possibly prevent certain uses of scraped information in conjunction with the scraped party’s trademark, potentially including key uses such as displaying prices, menu offerings, and travel options. Although existing precedent on trademark law and scraping is limited, it demonstrates that there is latent potential for Lanham Act claims in the scraping space. In addition, a recent rise in federal case filings alleging Lanham Act violations in connection with scraping practices suggests an increasing acknowledgment of the viability of such claims as well as offering the possibility for significant elucidation of this area of law. This Article hopes to offer an overview of the current state of trademarks law and scraping as well as practical suggestions for how such claims could circumscribe certain scraping practices.