TopstepTrader, LLC v. OneUp Trader, LLC, No. 17 C 4412, Slip Op. (N.D. Ill. Apr. 18, 2018) (Leinenweber, J.).
Judge Leinenweber granted in part defendant OneUp Trader’s Fed. R. Civ. P. 12(b)(6) motion to dismiss and defendant Alsabah’s Fed. R. Civ. P. 12(b)(2) & (6) motion to dismiss for lack of personal jurisdiction and failure to state a claim in this copyright dispute involving electronic trading systems.
Alsabah had to enter an agreement to use TopstepTrader’s software in which he allegedly consented to jurisdiction in Illinois. The Court held that the contract was on a spectrum between a clickwrap and a browsewrap agreement, in a type of agreement referred to as sign-in-wrap. Alsabah did not take an affirmative action to explicitly agree to the site terms, but there was affirmative action in that Asabah had to sign up for an account. During the sign up process, Alsabah would have been informed that by creating an account, he accepted the terms of service, along with a hyperlink to those terms. In fact, Alsabah clicked a “sign up” button next to a hyperlink for the terms. Without doing so, he could not have activated an account and gotten access to TopstepTrader’s website. But the “sign up” button did not clearly state that by clicking on it Alsabah was accepting the terms. So, while it was a close call, the terms and their forum selection clause were not enforceable against Alsabah.
Regarding specific jurisdiction, TopstepTrader’s location in Illinois and harm in Illinois was not sufficient to create personal jurisdiction. But Alsabah specifically sought out TopstepTrader’s website, created an account and then received multiple communications which identified TopstepTrader as an Illinois-based company. While walking into a brick and mortar store in Illinois would have been better evidence of specific jurisdiction, signing up with an Illinois business under the particular circumstances that Alsabah did was sufficient to create specific jurisdiction.
Failure to State a Claim
While OneUp Trader is correct that short, common phrases may not be copyright-protectable, OneUp Trader failed to address Topstep Trader’s argument that it is the combination of elements such as text, graphic size screen layouts, colors, charts, unique terms, etc. that is protectable. And even if the alleged copying identified in the complaint was only a small portion of the total content, that could be sufficient. Topstep Trader did not need to detail each copied element. It was enough to provide examples of the copying at the complaint stage. And a review of the exhibits showed sufficient alleged copying.
The Court dismissed Topstep Trader’s breach of contract claim, but gave Topstep Trader leave to replead with sufficient facts to show that a contract was formed that would support Topstep Trader’s breach claim.
Finally, Alsabah argued that the claims against him should be dismissed because the complaint only specifically mentioned him in limited instances. Topstep Trader, however, defined a term that combined OneUp Trader and Alsabah and referred to it collectively throughout the complaint.