H165
BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
High Court of Ireland Decisions |
||
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Ryanair Ltd -v- Club Travel Ltd [2012] IEHC 165 (23 March 2012) URL: http://www.bailii.org/ie/cases/IEHC/2012/H165.html Cite as: [2012] IEHC 165 |
[New search] [Help]
Judgment Title: Ryanair Limited -v- Club Travel Limited Neutral Citation: 2012 IEHC 165 High Court Record Number: 2012 1715P Date of Delivery: 23/03/2012 Court: High Court Composition of Court: Judgment by: McGovern J. Status of Judgment: Approved |
Neutral Citation 2012 IEHC 165 THE HIGH COURT COMMERICAL [2012 No. 1715 P] BETWEEN RYANAIR LIMITED PLAINTIFF AND
CLUB TRAVEL LIMITED DEFENDANT JUDGMENT of Mr. Justice Brian J. McGovern delivered on the 23rd day of March, 2012 1. This is an application for interlocutory injunctions set out in the following terms in a notice of motion dated 23rd February, 2012:
2. An order by way of interlocutory prohibitory injunction retraining the defendant, its servants and/or agents from using Ryanair's website in breach of the terms of use thereto. 3. An order by way of interlocutory prohibitory injunction restraining the defendant, its servants and/or agents from infringing the database rights of the plaintiff, including (but not limited to), by use of, or procuring the use of, software or other system to extract data including flight information from Ryanair's website for the use on the defendant's website for commercial purposes. 4. An order by way of interlocutory prohibitory injunction restraining the defendant, its servants and/or agents from using data and/or information extracted from Ryanair's website or regarding services provided by the plaintiff, on any and all websites owned, controlled and/or operated by the defendant, its servants and/or agents. 5. An order by way of interlocutory prohibitory injunction restraining the defendant, its servants and/or agents from infringing the database rights of the plaintiff, by establishing and operating unauthorised links to the plaintiff's website from the defendant's websites. 6. An order pursuant to section 127(2) of the Copyright and Related Rights Act 2000 or otherwise, by way of interlocutory prohibitory injunction restraining the defendant, its servants and/or agents, from infringing the plaintiff's copyright in the database of flight information contained on its website. 7. An order by way of interlocutory prohibitory injunction restraining the defendant, its servants and/or agents from passing off its search and booking services as being connected with the plaintiff's search and booking service by presenting the plaintiff's flight data on the defendant's websites and selling holiday packages that comprise, in part, of the plaintiff's flight services. 8. An order by way of interlocutory prohibitory injunction restraining the defendant, its servants and/or agents from adding unauthorised and concealed charges to the cost of the plaintiff's services in such a manner as to give the impression that such charges are imposed by the plaintiff thereby misleading consumers. 9. An order by way of interlocutory quia timet injunction restraining the defendant, its servants and/or agents from further breaching the Terms of Use of Ryanair's website. 10. An order by way of interlocutory quia timet injunction restraining the defendant, its servants and/or agents from further infringing the plaintiff's database rights." 3. The plaintiff claims an exclusive distribution system in respect of its flights and maintains that no other person or entity is entitled to sell, or offer for sale, Ryanair flights but Ryanair. Approximately 99% of all Ryanair seats are sold through its website. When a consumer logs on to Ryanair's website, it goes to a homepage which, apart from providing a search for Ryanair flights, also contains advertisements for accommodation reservation services, car hire, insurance services and various other ancillary and related services. It also provides advertising space on its homepage to third party service providers. The plaintiff earns money from advertising on its website and also generates income from ancillary services which it advertises itself. 4. The defendant operates as a travel agent through its website and enables consumers to search for and book package holidays. When a consumer logs on to the defendant's website and enters in details in respect of a desired destination and dates of travel, the defendant displays a pre-selected flight to the consumer to the chosen destination together with a list of a number of hotels to choose from. The consumer is then provided with the option of booking the package holiday on the defendant's website. 5. The plaintiff complains that it has discovered that the defendant is selling Ryanair flights as part of its package holidays and that this is contrary to the plaintiffs exclusive distribution clause as contained in its Terms of Use in respect of the Ryanair website. The plaintiff complains that it is the defendant and not the consumer that uses the website. For its part, the defendant asserts that it is the consumer who deploys the internet search and booking engine and it is the consumer who enters into the contract with the plaintiff. At all times, the booking details are provided to the plaintiff and they identify who the passenger is. 6. The plaintiff alleges that the defendant is operating a practice which is called "screen scraping" and that it is taking information from a database created by the plaintiff and using it for the purposes of its business contrary to the plaintiffs Terms of Use of its website. The defendant denies the allegations made by the plaintiff. 7. The parties are in agreement on the legal principles to be applied in considering an application such as this. The principles enunciated by the Supreme Court in Campus Oil v. Minister for Industry and Energy (No. 2) [1983] 1 I.R. 88 apply. The test to be applied is as follows:-
(ii) Are damages an adequate remedy? (iii) Does the balance of convenience fall in favour of the granting of an injunction?
9. The plaintiff has described in affidavits and its written submissions the interaction between the plaintiff and the defendant. It claims that the defendant is engaged in what is commonly described as "screen scraping". This is an interaction of automated software with a website in a manner designed to mimic the actions of a human user so as to selectively extract data from the targeted website, in this case, the Ryanair website, thereby enabling the screen scraper to reutilise and present the data on its own website for its own purposes. The plaintiff's Terms of Use govern the use of its website and the plaintiff maintains that the defendant is using its website contrary to its Terms and Conditions. This is denied by the defendant which claims that it is the consumer who deploys the internet search and booking engine and who enters into the contract with the plaintiff. The plaintiff relies on the decision of Hanna J. in Ryanair Ltd. v. Billigjluege GmbH [2010] IEHC 47 as authority for the proposition that by its actions, the defendant is bound by the plaintiff's website Terms of Use. I do not accept that argument because it is clear that Hanna J. was only dealing with a jurisdiction issue in that judgment. He says at p. 2 of his judgment:
10. The plaintiff raises a number of issues on its claim that there was a breach of contract and these are argued around some technical points such as "click wrapping" and "browse wrapping". It also makes claims in respect of the plaintiff's database rights which it claims have been infringed and claims trespass to goods/chattels, conversion, passing off and unlawful interference with economic and/or contractual interests. The defendant deals with each of these matters in its submissions and argues that the plaintiff has not even met the threshold of an arguable case or serious issue to be tried in the light of various judgments of EU Courts in cases in which Ryanair was involved. It is not necessary for me to rehearse those decisions here. Suffice it to say that I am quite satisfied that the plaintiff has established that there is a bona fide question to be tried on many of the points which it has raised, although I do not accept that it has established that threshold in relation to a passing off claim. Are damages an adequate remedy? 12. I am dealing with this application as a claim for interlocutory relief and I take into account the fact that the plaintiff has not been able to give any specific examples of claims being made against it or actual losses sustained as a result of the defendant's activity. From such information as was available to the Court, it is clear that the plaintiff's business is growing year on year, and while the plaintiff may well be able to establish some of the damage that it asserts, when the case gets on for a full hearing, it seems to me that a number of the plaintiff's apprehensions are somewhat unreal and fanciful and there is no evidence, to date, it has suffered any loss which can not be dealt with by way of damages at the end of the day. In my view, damages are an adequate remedy in this case. To a significant extent, the issue of damages is tied up with the balance of convenience because there is credible evidence that the defendant could suffer loss and damage which would not be compensatable in damages if an interlocutory injunction were to be granted. Balance of convenience 14. A very substantial number of documents were produced to the Court at the hearing of the interlocutory application, which set out in considerable detail the position of the plaintiff and defendant, and it seems likely that both parties would be in a position to deal with an early trial date with a view to resolving the issues between them at a full hearing. In my view, the balance of convenience favours making no interlocutory order in this case. |