Air Canada has been in an ongoing legal dispute with the award search website Seats.Aero for a while and, after exhausting all avenues, just deployed the nuclear option, filing a lawsuit against them in federal court.
The airline previously asked the website owner Localhost to cease and desist the permanent data scraping from Air Canada’s websites, but the company refused to comply – a decision that may now come to haunt them.
Air Canada maintains that the way the award search tool operates puts a strain on their IT infrastructure in addition to using the Air Canada trademarks without authorization for profit.
Award and availability search sites are very practical and have been around for a long time now, most notably the industry pioneer Experflyer, but there are some elementary differences between sites that perform searches based on single requests and those that are set up to permanently scan and scrape the system of an award program with thousands of city pairs.
We’ve seen Expertflyer, for example, run into issues with certain airlines as well, which stopped them from providing award inventory for many of them:
This was usually the result of airlines preventing the way Expert Flyer accessed websites in order to provide award availability. Other times, ExpertFlyer was actually told to cease and desist from deploying their screen scraping mechanisms, and we’ve seen availability disappear from the site:
ExpertFlyer has proven to be a very useful tool for me personally, and I’ve used it for close to two decades now. Mostly to monitor actual revenue availability rather than award availability searches. ExpertFlyer has apparently always complied when airlines went against them, and neither did they ever use trademarked logos of airlines. Although Seats.Aero doesn’t display those prominently on the front page but very small during searches (results) for graphic purposes.
This current case with seats.aero appears to be somewhat different.
You can read the entire legal complaint here:
Air Canada is now seeking a decision from the court, declaring that the Defendant’s activities “constitute a breach of his contract with the Air Canada Group, computer fraud, trademark counterfeiting, trademark infringement, trademark dilution, unfair competition, false advertising, and trespass.”
They also seek financial compensation, which is significant as it includes several components:
- Legal costs related to the lawsuit files, including reasonable attorney costs ;
- Pay to the Air Canada Group all profits arising from Defendant’s unlawful acts, and increasing such profits;
- Statutory damage of up to $2,000,000 for each type of service sold, offered for sale, or distributed by Defendant under the AIR CANADA and AEROPLAN trademarks
- Actual damages in an amount to be determined (but exceeding $75,000) ;
- Punitive damages in an amount to be determined
From the face of this lawsuit, it appears the defendant is in trouble. It’s very clear, put together properly, and doesn’t make any frivolous or adventurous claims. Although I think that Air Canada portrays itself as a reliable beacon of the aviation industry, it is a bit far-fetched considering their performance in the past few years.
Here is a figure included in the docket where Air Canada demonstrates how Seats.Aero purposely gets around the company’s security mechanisms:
The docket also cites a particular reply by the defendant’s attorneys to Air Canada’s counsel:
… Counsel for Defendant Localhost LLC, confirmed receipt of the October 5 letter and contested the Air Canada Group’s claims. Thereafter, Mr. Carroll acknowledged Defendant’s receipt of the Air Canada Group’s demand letter via at least one online post, declaring, “We do not intend to comply with their request and will continue to maintain Seats.aero’s support for Aeroplan for the foreseeable future. We are confident in our position, and if needed, we will see Air Canada in court. …
It’s one thing to be confident, another to be cocky. It’s hard to see what reasonable legal advice these attorneys gave their clients as far as telling them that the methods they employ are legally acceptable. Potential copyright and trademark violations are especially pretty cut and dry. There is a certain level where “Fair Use” stops and actual infringements begin.
And now that they actually WILL go to court, this is going to be an expensive experience. The defense alone will cost a pretty penny. Hopefully, they didn’t overplay their hand here, as that could cost their clients dearly.
The docket also claims and cites several statements from the owner of the website where he touts Air Canada and boasts about getting around the mechanisms the airline continually put into place. I can’t fathom a judge or jury to be impressed with this.
Air Canada has taken offense as to how Seats.Aero uses the publicly accessible Aeroplan website to use it for automated searches pertaining to award seat availability. In particular, the massive amount of traffic that is created this way drives Air Canada up the walls, and they claim this has caused them both harm and expense in the past and present.
Localhost’s counsel has – according to a citation in the lawsuit – rebuffed the cease and desist notice by Air Canada’s attorneys and even pitted them to take the case to court, which they now did.
I really like the way the Seats.Aero site is put together, as well as the design and practical use. That being said, I hope they didn’t lean too far out of the window with their efforts, as the docket is pretty damning as far as allegations and especially proof are concerned.