Educational Impact, Inc. v. Danielson, No. 14–937, 2015 WL
381332 (D.N.J. Jan. 28, 2015)
EI sued Charlotte Danielson and other entities for breach of
contract, violations of the Lanham Act, unfair competition, tortious
interference, and unjust enrichment. Per
the complaint: Danielson wrote a rubric to evaluate teacher performance, the “Framework
for Teaching,” with iterations in 1996, 2007, 2011, and 2013. This rubric has
been widely adopted. EI makes
professional development programs and services, and it contracted with one
Danielson-run defendant to create a program based on the Framework for
Teaching. The contract had an exclusivity/non-compete provision, which
defendants allegedly breached by working with defendant Teachscape, a direct
competitor of EI.
Danielson allegedly initially maintained that the “psychometric
assessment tool” she was working on with Teachscape would not compete with EI’s
Framework for Teaching Online Program, but then she began working exclusively
with Teachscape and allegedly created a directly competing program using the
same rubric. In 2012, Teachscape began to represent that it was the “exclusive
digital provider,” for Danielson’s new versions of the Framework for Teaching
Evaluation Instrument, e.g., claiming that Teachscape’s products “are the only
software products authorized for use with the 2011 and 2013 Editions.” Another
defendant website similarly stated that only Teachscape could incorporate the
2011 and 2013 Framework for Teaching Evaluation Instruments in its software
products. EI allegedly discovered that
Danielson had directed one defendant’s employees and contractors to download EI
videos and use them in seminars and training programs. (Related copyright
infringement suits against several school districts that were Teachscape
customers were stayed given their dependence on the issues in this case.)
I won’t talk about the contract-based claims; suffice it to
say that they remain alive.
As to the Lanham Act/unfair competition claims, they were
based on statements that Teachscape’s products “are the only software products
authorized for use with the 2011 and 2013 Editions” and “only Teachscape can
incorporate the content of the Framework for Teaching Evaluation Instrument
(2011 and 2013) in its software products.” Defendants argued, among other
things, that their statements were true as applied to software programs (as
opposed to online videos) and that the statements weren’t made in commercial
advertising or promotion.
The court turned to the Gordon
& Breach test for commercial advertising or promotion but, explicitly
dealing with an outstanding issue from Lexmark,
held that Gordon & Breach’s
competition requirement no longer applies. “Here, although [one defendant] is not in
direct competition with EI, the claims made on its website, if shown to be
false, likely have the effect of limiting EI’s sales. Under current law, this
allegation is sufficient to state a claim under the Lanham Act.”
The issues around falsity and exclusive rights couldn’t be
resolved on a motion to dismiss. Among other things, “software” might include a
program that uses online videos and PDF handouts, as EI’s program did. The
complaint therefore stated a claim.
Some parts of the tortious interference claims survived too.
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