AA suing DL over use of the word "flagship"
Dec 22, 2019, 1:26 pm
#31
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“Flagship” is a descriptive trademark, which is one of the least protectable types of trademarks. In order for American Airlines to win this suit, they would have to demonstrate that Delta’s use of the word “flagship” could cause consumers to confuse American’s and Delta’s products. Given that Delta only uses the word flagship in the context of their own products (e.g. on their own website, with their logo), it is difficult for American to successfully make this argument.
Dec 22, 2019, 3:01 pm
#32
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This.
AA uses the word most, like DL uses "Delta One", to describe their premium international product. DL avoids using the word to describe premium service but does use it to describe the suite-equipped aircraft that contain that product. My guess is DL removes the red tag "FLAGSHIP" from its reservations interface when searching for a flight since the only aircraft called "flagships" also happen to have that most premium D1 product.
AA uses the word most, like DL uses "Delta One", to describe their premium international product. DL avoids using the word to describe premium service but does use it to describe the suite-equipped aircraft that contain that product. My guess is DL removes the red tag "FLAGSHIP" from its reservations interface when searching for a flight since the only aircraft called "flagships" also happen to have that most premium D1 product.
I imagine a key point in DL's defense will be that one airplane (the A350) is indicated with the word "FLAGSHIP" on the website regardless of booking class or product, and they similarly label itineraries that have an A220 or A330NEO with "NEW AIRCRAFT" or a retrofitted 777 with "NEW INTERIOR." Their lawyers will surely argue that red tabs in the booking window simply provide additional information about different types of aircraft, and that the A350 is Delta's lowercase-F "flagship" aircraft - it just so happens they use all caps in all their text. The same type of defense would likely apply across other uses of the term.
Dec 22, 2019, 3:34 pm
#33
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As I've understood trademark law, use of a trademark which is an accurate description of the product is not infringement (which is part of why invented words are common as trademarks). Referring to the A350 as the flagship of the Delta fleet is this probably non-infringing, but the SkyClub usage would seem more borderline.
Dec 22, 2019, 5:27 pm
#34
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This, they wanted to start something and since they couldn't fight over "The On Time Machine", they had to find something, and "Flagship" won out.
Dec 22, 2019, 5:31 pm
#35
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It's a meaningless word. Only someone susceptible to marketing tactics would pay it any mind. Unfortunately that is most all of the US. If speaking on economy seats, the E175 and 767 would be their "flagship experience" since they have the fewest or no middle seats for narrowbody and widebody respectively. As far as lounges go, both AA and DL are pitiful compared to United's new Polaris lounges.
Dec 22, 2019, 6:12 pm
#37
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Dec 22, 2019, 6:13 pm
#38
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If AA loses then they should rebrand their basic economy product as "American One" and see how Delta reacts. If the word "flagship" can't be protected then surely the word "one" can't.
Dec 22, 2019, 7:32 pm
#40
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“Flagship” is a descriptive trademark, which is one of the least protectable types of trademarks. In order for American Airlines to win this suit, they would have to demonstrate that Delta’s use of the word “flagship” could cause consumers to confuse American’s and Delta’s products. Given that Delta only uses the word flagship in the context of their own products (e.g. on their own website, with their logo), it is difficult for American to successfully make this argument.
Dec 22, 2019, 8:08 pm
#41
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Why would Delta want to discriminate against their own product? Shouldn't they want customers to think all of their aircraft provide the same level of comfort? In what way is the A350 suite better than the new 777 suite?
Dec 22, 2019, 8:34 pm
#42
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Does anyone else think this is happening because AA needs a quick cash grab, and they never trademarked "The On Time Machine", so they were looking for anything to "claim" as theirs?
Dec 23, 2019, 4:04 am
#43
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As I've understood trademark law, use of a trademark which is an accurate description of the product is not infringement (which is part of why invented words are common as trademarks). Referring to the A350 as the flagship of the Delta fleet is this probably non-infringing, but the SkyClub usage would seem more borderline.
https://thepointsguy.com/news/delta-...retrofittedfly
Dec 23, 2019, 11:57 am
#44
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Finally. My moment to shine ... I am a trademark lawyer.
Surprisingly, most of the comments on this thread have got it mostly right. It is possible for both 1) AA to establish trademark rights in FLAGSHIP formatives and 2) for DL's use of the term "flagship" to describe its offerings to not be trademark infringement.
AA has a registration for, among other things, FLAGSHIP SUITES with respect to "transportation of passengers and cargo by air." They've had this registration since 2009. However, a common misconception is that registration is the sine qua non of trademark rights; i.e., that rights spring from federal registration. Fundamentally, rights arise first from actual use in commerce. USPTO registration helps trademark owners establish nationwide notice, gives extra avenues of recovery in court when infringement actions are brought, and also offer certain privileges of "incontestability" once registration is held for a certain number of years. But a mark holder must actually use the mark to be eligible for registration.
AA's specimen of use for its most recent renewal of the FLAGSHIP SUITES registration (which can be seen here) shows that they're using this term to market an international first class seating product. I haven't read the complaint but I would imagine that this specific mark is the heart of their claim and not use of FLAGSHIP with respect to lounges, as some here have mentioned (although that certainly would be in the complaint as part of their asserted family of marks). They would have a pretty solid claim that DL's use of "flagship" to identify an in-flight experience is confusingly similar, to the average consumer, with AA"s FLAGSHIP SUITE in-flight product--at least to avoid going thrown out on a motion to dismiss.
Many people have mentioned the descriptiveness bar. It is true that a word which is merely descriptive of the good or service cannot function as a trademark. That is, unless the mark has acquired distinctiveness, meaning that consumers have come to associate the term with the mark holder. In US law, a presumption of distinctiveness arises after 5 years of continuous use. Based on the length of AA's registration, it is unlikely to be wholly invalidated for descriptiveness.
However, again as some people have mentioned, DL may have a defense of descriptive fair use. This has its roots in the First Amendment, yes, but there is no need to resort to lofty constitutional protections; the defense is enshrined right in the statute, the Lanham Act, at 15 USC 1115(b)(4). It's not infringement if "use of the ... term ... is a use, otherwise than as a mark ... of a term ... which is descriptive of and used fairly and in good faith only to describe the goods or services of such party"
There are lots of elements in 1115(b)(4), which any reader can probably see as difficult for DL to establish: use not as a mark; use in good faith; only to describe the goods. DL's new "flagship" product could arguably be used in its descriptive, dictionary sense ("the best or most important thing owned or produced by a particular organization"). But there are a lot of facts that go into this defense and I could see a jury or judge going either way.
Either way, a fairly interesting trademark case.
Surprisingly, most of the comments on this thread have got it mostly right. It is possible for both 1) AA to establish trademark rights in FLAGSHIP formatives and 2) for DL's use of the term "flagship" to describe its offerings to not be trademark infringement.
AA has a registration for, among other things, FLAGSHIP SUITES with respect to "transportation of passengers and cargo by air." They've had this registration since 2009. However, a common misconception is that registration is the sine qua non of trademark rights; i.e., that rights spring from federal registration. Fundamentally, rights arise first from actual use in commerce. USPTO registration helps trademark owners establish nationwide notice, gives extra avenues of recovery in court when infringement actions are brought, and also offer certain privileges of "incontestability" once registration is held for a certain number of years. But a mark holder must actually use the mark to be eligible for registration.
AA's specimen of use for its most recent renewal of the FLAGSHIP SUITES registration (which can be seen here) shows that they're using this term to market an international first class seating product. I haven't read the complaint but I would imagine that this specific mark is the heart of their claim and not use of FLAGSHIP with respect to lounges, as some here have mentioned (although that certainly would be in the complaint as part of their asserted family of marks). They would have a pretty solid claim that DL's use of "flagship" to identify an in-flight experience is confusingly similar, to the average consumer, with AA"s FLAGSHIP SUITE in-flight product--at least to avoid going thrown out on a motion to dismiss.
Many people have mentioned the descriptiveness bar. It is true that a word which is merely descriptive of the good or service cannot function as a trademark. That is, unless the mark has acquired distinctiveness, meaning that consumers have come to associate the term with the mark holder. In US law, a presumption of distinctiveness arises after 5 years of continuous use. Based on the length of AA's registration, it is unlikely to be wholly invalidated for descriptiveness.
However, again as some people have mentioned, DL may have a defense of descriptive fair use. This has its roots in the First Amendment, yes, but there is no need to resort to lofty constitutional protections; the defense is enshrined right in the statute, the Lanham Act, at 15 USC 1115(b)(4). It's not infringement if "use of the ... term ... is a use, otherwise than as a mark ... of a term ... which is descriptive of and used fairly and in good faith only to describe the goods or services of such party"
There are lots of elements in 1115(b)(4), which any reader can probably see as difficult for DL to establish: use not as a mark; use in good faith; only to describe the goods. DL's new "flagship" product could arguably be used in its descriptive, dictionary sense ("the best or most important thing owned or produced by a particular organization"). But there are a lot of facts that go into this defense and I could see a jury or judge going either way.
Either way, a fairly interesting trademark case.
Dec 23, 2019, 2:05 pm
#45
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Finally. My moment to shine ... I am a trademark lawyer.
Surprisingly, most of the comments on this thread have got it mostly right. It is possible for both 1) AA to establish trademark rights in FLAGSHIP formatives and 2) for DL's use of the term "flagship" to describe its offerings to not be trademark infringement.
AA has a registration for, among other things, FLAGSHIP SUITES with respect to "transportation of passengers and cargo by air." They've had this registration since 2009. However, a common misconception is that registration is the sine qua non of trademark rights; i.e., that rights spring from federal registration. Fundamentally, rights arise first from actual use in commerce. USPTO registration helps trademark owners establish nationwide notice, gives extra avenues of recovery in court when infringement actions are brought, and also offer certain privileges of "incontestability" once registration is held for a certain number of years. But a mark holder must actually use the mark to be eligible for registration.
AA's specimen of use for its most recent renewal of the FLAGSHIP SUITES registration (which can be seen here) shows that they're using this term to market an international first class seating product. I haven't read the complaint but I would imagine that this specific mark is the heart of their claim and not use of FLAGSHIP with respect to lounges, as some here have mentioned (although that certainly would be in the complaint as part of their asserted family of marks). They would have a pretty solid claim that DL's use of "flagship" to identify an in-flight experience is confusingly similar, to the average consumer, with AA"s FLAGSHIP SUITE in-flight product--at least to avoid going thrown out on a motion to dismiss.
Many people have mentioned the descriptiveness bar. It is true that a word which is merely descriptive of the good or service cannot function as a trademark. That is, unless the mark has acquired distinctiveness, meaning that consumers have come to associate the term with the mark holder. In US law, a presumption of distinctiveness arises after 5 years of continuous use. Based on the length of AA's registration, it is unlikely to be wholly invalidated for descriptiveness.
However, again as some people have mentioned, DL may have a defense of descriptive fair use. This has its roots in the First Amendment, yes, but there is no need to resort to lofty constitutional protections; the defense is enshrined right in the statute, the Lanham Act, at 15 USC 1115(b)(4). It's not infringement if "use of the ... term ... is a use, otherwise than as a mark ... of a term ... which is descriptive of and used fairly and in good faith only to describe the goods or services of such party"
There are lots of elements in 1115(b)(4), which any reader can probably see as difficult for DL to establish: use not as a mark; use in good faith; only to describe the goods. DL's new "flagship" product could arguably be used in its descriptive, dictionary sense ("the best or most important thing owned or produced by a particular organization"). But there are a lot of facts that go into this defense and I could see a jury or judge going either way.
Either way, a fairly interesting trademark case.
Surprisingly, most of the comments on this thread have got it mostly right. It is possible for both 1) AA to establish trademark rights in FLAGSHIP formatives and 2) for DL's use of the term "flagship" to describe its offerings to not be trademark infringement.
AA has a registration for, among other things, FLAGSHIP SUITES with respect to "transportation of passengers and cargo by air." They've had this registration since 2009. However, a common misconception is that registration is the sine qua non of trademark rights; i.e., that rights spring from federal registration. Fundamentally, rights arise first from actual use in commerce. USPTO registration helps trademark owners establish nationwide notice, gives extra avenues of recovery in court when infringement actions are brought, and also offer certain privileges of "incontestability" once registration is held for a certain number of years. But a mark holder must actually use the mark to be eligible for registration.
AA's specimen of use for its most recent renewal of the FLAGSHIP SUITES registration (which can be seen here) shows that they're using this term to market an international first class seating product. I haven't read the complaint but I would imagine that this specific mark is the heart of their claim and not use of FLAGSHIP with respect to lounges, as some here have mentioned (although that certainly would be in the complaint as part of their asserted family of marks). They would have a pretty solid claim that DL's use of "flagship" to identify an in-flight experience is confusingly similar, to the average consumer, with AA"s FLAGSHIP SUITE in-flight product--at least to avoid going thrown out on a motion to dismiss.
Many people have mentioned the descriptiveness bar. It is true that a word which is merely descriptive of the good or service cannot function as a trademark. That is, unless the mark has acquired distinctiveness, meaning that consumers have come to associate the term with the mark holder. In US law, a presumption of distinctiveness arises after 5 years of continuous use. Based on the length of AA's registration, it is unlikely to be wholly invalidated for descriptiveness.
However, again as some people have mentioned, DL may have a defense of descriptive fair use. This has its roots in the First Amendment, yes, but there is no need to resort to lofty constitutional protections; the defense is enshrined right in the statute, the Lanham Act, at 15 USC 1115(b)(4). It's not infringement if "use of the ... term ... is a use, otherwise than as a mark ... of a term ... which is descriptive of and used fairly and in good faith only to describe the goods or services of such party"
There are lots of elements in 1115(b)(4), which any reader can probably see as difficult for DL to establish: use not as a mark; use in good faith; only to describe the goods. DL's new "flagship" product could arguably be used in its descriptive, dictionary sense ("the best or most important thing owned or produced by a particular organization"). But there are a lot of facts that go into this defense and I could see a jury or judge going either way.
Either way, a fairly interesting trademark case.
*]"This use by Delta was the beginning of a campaign to brand its premium-level interiors and services as a suite of "flagship products" or services. For example, in a December 2018 press release, Delta promoted the interiors of not just the Airbus A350, but also the Airbus A220, the Boeing 777, and the Boing 767-400, as new ''flagship products" that met its "flagship standards".
- As another example, in a February 28, 2019 press release, Delta said it "will offer its flagship Delta One Suite and Delta Premium Select products on three aircraft types including the A350 and updated Boeing 777s."
- Delta has also used the terms "flagship" and "Flagship" to promote its own line of remium airport lounges-a direct infringement on American's "Flagship Lounge" marks. For instance, in late 2016, Delta issued a press release titled "Delta Unveils Flagship Delta Sky Club at Atlanta's Concourse B." This press release detailed the opening of Delta's new "Flagship" Delta Sky Club airport lounge at the Hartsfield-Jackson Atlanta International Airport, and emphasized the "premium" nature of the lounge, targeting the precise consumers to which American directs its Flagship Marks. Twice in December 2019, Delta issued press releases referring to its new lounge at JFK Terminal 4 as a "flagship Delta Sky Club."
- Delta has since expanded the use of "flagship" to not just its lounge at Hartsfield-Jackson Atlanta Airport, but what appears to be a growing line of "flagship" lounges across the
country. For instance, on January 7, 2019, Delta issued another press release entitled "5 features to look forward to at the new Phoenix Delta Sky Club," which proclaimed that Delta had "opened new flagship Delta Sky Clubs" at both "Hartsfield-Jackson Atlanta International Airport and Seattle-Tacoma International Airport," and that this second "flagship" lounge "features local, seasonal fare from renowned chef Ethan Stowell."
On top of that of all that, DL's Flagship marketing is being parroted on blogs like OMAAT and TPG. TPG's article header from December 28, 2018, states "All Delta 777 and 767-400 Planes to Be Retrofitted With 'Flagship' Interiors." So, yes, the usage is not common and is creating confusion and dilution of AA's mark.