U.S. DISTRICT COURT ISSUES MOTION FOR PRELIMINARY INJUNCTION IN LAWSUIT BETWEEN SOUTHWEST AIRLINES AND KIWI.COM
November 15, 2021
The United States District Court for the Northern District of Texas recently issued a Motion for a Preliminary Injunction in the case between Southwest Airlines Co. (“Southwest”) and Kiwi.com, Inc. (“Kiwi”) on September 30, 2021.
Southwest filed a lawsuit against Kiwi in January 2021 claiming that Kiwi was operating an online travel agency (“OTA”) that was engaged in repeated, unlawful activity on Southwest’s website including unauthorized page scraping of flight and pricing data, which is expressly prohibited under Southwest’s Terms & Conditions, as well as the unauthorized sale of Southwest tickets. Specifically, Southwest asserted the following causes of action in its complaint: (1) breach of contract and breach of Southwest’s Terms & Conditions; (2) trademark infringement under 15 U.S.C. § 1114; (3) false designation of origin and unfair competition under 15 U.S.C. § 1125(a); (4) dilution under 15 U.S.C. § 1125(c); (5) violation of the Computer Fraud and Abuse Act (CFAA) 18 U.S.C. § 1030; (6) violation of the Texas Harmful Access by Computer Act; and (7) unjust enrichment.
Southwest requested a Motion for Preliminary Injunction to prohibit Kiwi from continuing to undertake unauthorized sales of its flights while also arguing that Southwest was likely to succeed on the merits of its breach of contract claim and establish the remaining requirements for injunctive relief. The Court agreed and granted the Motion finding that Southwest had adequately established the existence of a valid contract between it and Kiwi, and proved other elements of a breach of contract. In its reasoning, the Court said that Kiwi had breached Southwest’s Terms & Conditions by scraping Southwest flight and fare data from its website, presenting Southwest flight data on kiwi.com, and selling Southwest flights without obtaining authorization from Southwest to do so. This caused Southwest to suffer damages including “damage to its reputation and loss of goodwill from customer complaints and increased customer service burdens and disruption to operations.”
Under the Court’s order granting Southwest’s Motion, Kiwi has been preliminarily enjoined from (1) harvesting, extracting or scraping information from Southwest’s website; (2) publishing Southwest flight or fare information on kiwi.com or through Kiwi’s mobile applications or elsewhere; (3) otherwise accessing and using Southwest’s website and data for any other commercial purpose; (4) selling tickets for Southwest flights; and (5) committing any other acts in violation of Southwest’s Terms & Conditions for the pendency of the lawsuit.
If you have any questions, please contact Evelyn Sahr (esahr@eckertseamans.com or 202-659-6622); Drew Derco (dderco@eckertseamans.com or 202-659-6665), or Andy Orr (aorr@eckertsemans.com or 202-659-6625).
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