In Century 21 Canada Limited Partnership v
Rogers Communications Inc., the BC Supreme Court
upheld the validity of the so-called "browse wrap"
agreements and awarded damages against Zoocasa and its parent
Rogers for Zoocasa's breach of the Century 21 website terms
of use when it pulled listings from the Century 21 website for use
on its own real estate listing search engine. The BC court
confirmed that industry standard browse wrap agreements (i.e. a
website's posted terms of service) can form valid contracts
without being brought to the attention of users or requiring any
review/acknowledgement by the user before accessing the
The conflict between the parties arose in 2008 when Zoocasa, a
search engine and aggregator of real estate listings, began
"scraping" images, descriptions, and property details
from the Century 21 website and reproducing them on its own site.
Century 21 claimed that Zoocasa's scraping was in breach of
additional claims that Zoocasa had both trespassed and violated
Century 21's copyright over the images and
The court found Zoocasa liable for copyright infringement and
for breach of contract, and dismissed Zoocasa's claim that
ingredients which make a contract valid. Unlike its shrink
wrap and click wrap predecessors, browse wrap agreements such as
in click wrap agreements, user acceptance is indicated by clicking
on the "yes" or "accept" bottom) or active step
taken by the user (e.g. in shrink wrap agreements, users signal
their acceptance of software licensing terms by removing the
plastic wrap from a software package) which signal the
that there is no proper acceptance for browse wrap agreements and
where the user has no opportunity to accept or reject the
terms. The court rejected this analogy, finding that
"[t]here is nothing the observer of a billboard does that is
capable of indicating consent. The observer merely views the
billboard. A user of a website can respond by accessing deeper
layers (pages) of the website."
The court in Century 21 v Zoocasa found there to be
proper acceptance in browse wrap agreements where there is
continued access of a website by a user with notice of the terms of
use, thereby indicating its acceptance of those terms. Century
21 also gave consideration by providing access to the information
on its web site. The court specifically noted that Zoocasa is
a sophisticated commercial entity who has not only been given
were the industry standard. Zoocasa's scraping of the
be a breach of its contract with Century 21.
Century 21 was awarded a permanent injunction against Zoocasa
for breach of contract, and $32,000 for copyright infringement
($250 per infringement for 128 infringements). While the
decision marks an important step in the evolution of browse wrap
agreements, the facts of this case were somewhat unique: Zoocasa
was a sophisticated internet business which was aware of the terms
of use, and the court recognized that those terms were
reasonable. Whether the courts will be as willing to find the
existence of a contract between a less sophisticated individual, or
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
The Federal Court dismissed a motion by Apotex seeking particulars from Allergan's pleading relating to the prior art, inventive concept, promised utility and sound prediction of utility of the patents at issue.
Last year we saw the Canadian Courts release trademark decisions that granted a rare interlocutory injunction, issued jailed sentences for failure to comply with injunctive relief, grappled with trademark and internet issues...
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).