Designer Skin LLC v. S & L Vitamins, Inc., et al.
Cairo, Inc. v. CrossMedia Services, Inc.
No. C04-04825 (JW) (N.D. Ca., April 1, 2005)
Browse-Wrap Contract Created By Use Of Website With Knowledge That Such Use Creates Binding Agreement
Both plaintiff Cairo, Inc. and defendant CrossMedia Services Inc. operate web sites which permit shoppers to search for products on sale with local retailers. Defendant, through arrangements with various retailers, makes the retailers' promotional materials available on websites defendant operates. Shoppers can find these promotional materials either via links for the retailers' own sites, or through searches on defendant's Shop Local Network.
All of the web pages on defendant's web sites contain a notice which states:
The Terms further prohibit accessing the sites either for commercial purposes, or via robot, or from deep linking to the sites' interior pages. Lastly, the Terms mandate that any suit arising out of the agreement be brought in Illinois, where defendant has its principal offices.
Plaintiff also operates a web site which provides shoppers with information about sales at their local stores. Plaintiff obtains some of the information on sales it provides its clientele from defendant's sites. More particularly, plaintiff uses 'robots' to access defendant's sites for information on retailer's promotions. Thumbnail images of promotional materials found on defendant's sites are displayed on plaintiff's site. Deep links from some of these thumbnails take the interested shopper to interior pages of defendant's sites, where a larger, interactive version of the promotional materials contained in the thumbnail can be found.
Use Of Site With Actual And Imputed Knowledge Of Terms Creates Binding Contract
Quoting with approval the Second Circuit's decision in Register.com Inc. v. Verio, 356 F.3d 393 (2d Cir. 2004), the Court stated:
Court Upholds Forum Selection Clause
It should be noted that the Court denominated this decision as "not for citation."