The London High Court has refused to hear parts of a software copyright case after a Spanish startup Trappit claimed American Express ignored an NDA and illegally copied its flight rebooking software .
Trappit’s sueball against American Express Europe was partially overturned by Mr. Justice Snowden last month, after the judge ruled that the ongoing similar case in Spain meant the High Court had no jurisdiction to hear claims that brought by the Trappit Panamanian branch to London.
A significant portion of the complex and stored case will be heard, however, as Trappit’s Spanish subsidiary survived Amex’s attempt to dismiss the entire case. The case alleges that Amex copied Trappit’s flight booking software after peeking into its operation under the NDA.
In early 2010 Trappit’s directors, Martin Lazaro and Daniel de Carvajal, created a software platform called ARPO. It is advertised as a money-saving platform for people who book flights online. ARPO, the High Court, heard that it automatically scans flight booking sites for cheap travel prices. Customers will book flights through a frontend website powered by ARPO. If ARPO finds lower ticket prices for travel advertised later, it will automatically cancel the trip and rebook it at the new cheaper rate.
Enthusiastic about licensing ARPO to Amex, Trappit met with the company’s reps in 2014 after emailing them a non-disclosure agreement (NDA). Amex wants the NDA to be governed by English law while Spain -based Trappit is governed by its Spanish courts. The document they later signed included this clause:
At the same time as Trappit and Amex met, the latter split the Global Business Travel division into a separate company called GBT Travel UK Ltd. A GBT rep told Trappit that Amex was not interested in licensing ARPO and the potential deal fell through.
Importantly, there was no formal transfer of NDA from Amex to GBT.
Whether or not Amex broke the NDA will be decided by the High Court in due course but Trappit’s directors believe the American company has certainly done something wrong. In 2015 they filed a criminal complaint in Madrid alleging that Amex illegally copied ARPO, naming nine Amex directors as personal defendants. In Spain copyright infringement can be treated as a criminal offense carrying prison sentences.
Mr. Justice Snowden said in his judgment: “I notice that [Spanish criminal complaint] did not include a Trappit Tec claim in the contract based on the NDA. Instead, Trappit Tec alleged that the NDA was used as part of a fraudulent scheme by the Spanish defendants to gain access to the ARPO system and then copied (copied or plagiarized) it. “
Choose a court
A court investigating in Spain resumed the case after receiving a (disputed) expert report about whether Amex’s competing product was a copy of ARPO. Meanwhile both the Espappa and Panamanian corporate presence of Trappit filed a High Court civil case against Amex, in April 2020. Amex applied to stop the case, citing an EU law known as Brussels I Recast.
Article 25 of the Brussels Regulation I (recast) ”gives priority to a court designated in an exclusive jurisdiction clause, allowing the court to continue its proceedings even if another EU court is first seized by the claims, ”as explained in depth by law firm Clifford Chance [PDF].
In other words, it stops EU -based companies starting new and competing lawsuits around the bloc if a country’s courts seem to have jurisdiction against them. You choose a court and fight your case there.
Tappit’s case against Amex began before The UK has formally left the EU on 1 January 2021, and thus benefited from EU law applicable to it. The company said that in 2015 the intellectual property behind ARPO was transferred from the Panamanian arm (Trappit SA) to its Spanish branch (Trappit Tec).
Hearing Amex’s arguments that either company has no right to sue here, Mr. Justice Snowden ruled: “Consequently I have concluded (and the better argument is) that the jurisdiction clause in the NDA applies to all of English Procedure claims, but it only binds AmEx Europe and Trappit SA as the original signatories to the NDA.
“The effect of Article 25 is that the English courts therefore have no jurisdiction over the claims brought by Trappit SA against AmEx Europe in the English Procedings.”
Therefore, while the Panamanian company’s claim against Amex has failed, the Spanish can continue to fight the case. The verdict, dense even by High Court standards, can be read here.
Amex failed to dispose of the remaining parts of the Trappit Tec claim due to being destructive or an abuse of process, so a full trial will take place in due course. The case continues. ®
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