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TYWoolman
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Re: AA sues DL over the use of the term “Flagship”

Sun Dec 29, 2019 7:41 pm

seanpmassey wrote:

Except that the trademark in this case covers a commonly used word for describing the best-in-class, in the same manner that retail has flagship locations and broadcast communications networks have flagship stations. It's commonly used in commercial aviation in the exact manner that Delta is using it, as evidenced by Lufthansa's press release that Zeke posted earlier describing their A350s being their new flagship aircraft that will be used on some flights to the United States. Other airlines offering service to the US use that terminology as well. All of it runs afoul of American's trademark as that service covers the United States...

What word would you recommend that airlines use in place of flagship when describing their top-end plane?



Precisely why Delta has a good case on the trademarks efficacy in today's ever increasing global economy when Delta competes route for route against colluding OneWorld alliance members who may be given a pass on potential infringement of the use of the term Flagship.
 
MSPNWA
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Re: AA sues DL over the use of the term “Flagship”

Sun Dec 29, 2019 7:47 pm

Before this thread even existed I thought that AA had a case (of course the anti-AA bloggers were blowing it off). After reading more about it, my opinion is that AA has a strong case. I had noticed DL using the flagship term more and more prominently, and it certainly wasn't an accident. But I didn't put two and two together with it being AA's trademark. To me it's a fairly clear example of infringement as it's used in the same manner to promote a level of service. My prediction is a settlement and DL will have to stop using the term. If there is no change, I think we've diluted trademark law.

I tell you what though, you have to admire the army of widget defenders that will come on a thread and blow smoke until the other side is choked to death. It is impressive.
 
UpNAWAy
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Re: AA sues DL over the use of the term “Flagship”

Sun Dec 29, 2019 7:49 pm

Good lord this thread is 90% nonsense.
 
TYWoolman
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Re: AA sues DL over the use of the term “Flagship”

Sun Dec 29, 2019 8:07 pm

VS11 wrote:
The more interesting case if American Airlines can protect its Flagship branding from being used by Space X/Blue Origin/Virgin Galactic! Is space travel same as air travel?



Fascinating, indeed. Air-travel vs space-travel in the eyes of trademark law! Joking...Delta better trademark FlagRocket now! !
 
D L X
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Re: AA sues DL over the use of the term “Flagship”

Sun Dec 29, 2019 8:26 pm

TYWoolman wrote:
VS11 wrote:
The more interesting case if American Airlines can protect its Flagship branding from being used by Space X/Blue Origin/Virgin Galactic! Is space travel same as air travel?



Fascinating, indeed. Air-travel vs space-travel in the eyes of trademark law! Joking...Delta better trademark FlagRocket now! !

You can only trademark things that you are actually using to sell things. You can get an application called a 1(b) which signifies your intent to use a mark, but the expectation is that you actually start advertising something that can be bought with that mark within six months.

So if delta isn’t going to space any time soon, they can’t get a trademark.
 
mjoelnir
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Re: AA sues DL over the use of the term “Flagship”

Sun Dec 29, 2019 8:43 pm

It is of course the USA. To be able to trade mark a word like flagship is of course a crazy idea by itself. But than to go to the courts to defend that nonsense. What other common concepts are trade markable. President, capital city, state, government, court of law, dollar, where do you draw the line?
Calling an airplane flagship in the meaning of the best or biggest or newest offering from that airline is IMO not trade markable, because it is a common concept.
It will be interesting how this will play out in front of the courts.
 
TYWoolman
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Re: AA sues DL over the use of the term “Flagship”

Sun Dec 29, 2019 8:48 pm

D L X wrote:
TYWoolman wrote:
VS11 wrote:
The more interesting case if American Airlines can protect its Flagship branding from being used by Space X/Blue Origin/Virgin Galactic! Is space travel same as air travel?



Fascinating, indeed. Air-travel vs space-travel in the eyes of trademark law! Joking...Delta better trademark FlagRocket now! !

You can only trademark things that you are actually using to sell things. You can get an application called a 1(b) which signifies your intent to use a mark, but the expectation is that you actually start advertising something that can be bought with that mark within six months.

So if delta isn’t going to space any time soon, they can’t get a trademark.



Thanks for that. As for space-travel between Earth and Moon, or between Earth cities using the edge of space as a sling-shot, I would think Delta would be code-sharing first and spreading the risk before trademarking any confidence in such a travel mode!
 
D L X
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Re: AA sues DL over the use of the term “Flagship”

Sun Dec 29, 2019 9:14 pm

mjoelnir wrote:
It is of course the USA. To be able to trade mark a word like flagship is of course a crazy idea by itself. But than to go to the courts to defend that nonsense. What other common concepts are trade markable. President, capital city, state, government, court of law, dollar, where do you draw the line?
Calling an airplane flagship in the meaning of the best or biggest or newest offering from that airline is IMO not trade markable, because it is a common concept.
It will be interesting how this will play out in front of the courts.

Trademark law is pretty standard across countries. For instance, check out American Airlines’ trademark for Flagship in Iceland:

https://gamli.els.is/en/search/trademar ... ategories=
 
IPFreely
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Re: AA sues DL over the use of the term “Flagship”

Sun Dec 29, 2019 9:16 pm

D L X wrote:
This is why you’re dangerous as a mouthpiece for trademark law. You’re one of the most respected posters on this site, but you don’t know anything about trademark law. So people listening to you believe falsehoods when you spread this misinformation.


How is he a mouthpiece for trademark law? This is an internet forum and he's a poster. It is not a court and he is not a lawyer. The only danger is people thinking a.net is a source for legit legal opinions and anyone who thinks that, well, they have bigger problems than worrying about a trademark lawsuit.
 
washingtonflyer
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Re: AA sues DL over the use of the term “Flagship”

Sun Dec 29, 2019 11:40 pm

IPFreely wrote:
D L X wrote:
This is why you’re dangerous as a mouthpiece for trademark law. You’re one of the most respected posters on this site, but you don’t know anything about trademark law. So people listening to you believe falsehoods when you spread this misinformation.


How is he a mouthpiece for trademark law? This is an internet forum and he's a poster. It is not a court and he is not a lawyer. The only danger is people thinking a.net is a source for legit legal opinions and anyone who thinks that, well, they have bigger problems than worrying about a trademark lawsuit.


Because he has been espousing a set of theoretical questions (e.g., Flagship corporation, etc.), that has been -repeatedly- responded to. He then makes obscure citations to the Code of Federal Regulations which simply govern agency practice and procedure.

This is deeply reminiscent of the nonsensical posts that we found during the Boeing v. Bombardier litigation a couple years back (not by Zeke, but by others). Some absolutely absurd propositions and claims which had absolutely no basis in law or fact. Reading some of them made my jaw drop as I'm a tad bit more familiar with ITC / DOC practice than the posters here are.
 
ikramerica
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Re: AA sues DL over the use of the term “Flagship”

Sun Dec 29, 2019 11:58 pm

washingtonflyer wrote:
IPFreely wrote:
D L X wrote:
This is why you’re dangerous as a mouthpiece for trademark law. You’re one of the most respected posters on this site, but you don’t know anything about trademark law. So people listening to you believe falsehoods when you spread this misinformation.


How is he a mouthpiece for trademark law? This is an internet forum and he's a poster. It is not a court and he is not a lawyer. The only danger is people thinking a.net is a source for legit legal opinions and anyone who thinks that, well, they have bigger problems than worrying about a trademark lawsuit.


Because he has been espousing a set of theoretical questions (e.g., Flagship corporation, etc.), that has been -repeatedly- responded to. He then makes obscure citations to the Code of Federal Regulations which simply govern agency practice and procedure.

This is deeply reminiscent of the nonsensical posts that we found during the Boeing v. Bombardier litigation a couple years back (not by Zeke, but by others). Some absolutely absurd propositions and claims which had absolutely no basis in law or fact. Reading some of them made my jaw drop as I'm a tad bit more familiar with ITC / DOC practice than the posters here are.

Some of us have been around long enough to remember him arguing ad nauseam how the A346 was superior to the 77W, his airline had all the data to prove it, etc even as A346 sales had dried up and 77W sales exploded. It took his own airline buying the 77W and dumping the A346 after only 7 years for that argument to stop.
Of all the things to worry about... the Wookie has no pants.
 
IPFreely
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Re: AA sues DL over the use of the term “Flagship”

Mon Dec 30, 2019 12:17 am

washingtonflyer wrote:
Because he has been espousing a set of theoretical questions (e.g., Flagship corporation, etc.), that has been -repeatedly- responded to. He then makes obscure citations to the Code of Federal Regulations which simply govern agency practice and procedure.


I understand, but I don't see how that makes him dangerous? It just shows he is ill-informed. This thread features literally dozens of posters (including one hilariously claiming to be a lawyer) stating that AA has no case, a word cannot be trademarked, AA's trademark is invalid because Delta is better, and other such nonsense. If you find it laughable (which I mostly do), just enjoy the entertainment. If you find it annoying (which some do), just ignore it. But I can't see any danger.
 
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zeke
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Re: AA sues DL over the use of the term “Flagship”

Mon Dec 30, 2019 12:33 am

D L X wrote:
Zeke, are you reading my posts?


I do, but I don’t take what you post at face value. Multiple times you have contradicted yourself, multiple times you have stated your opinion without looking at the source.

D L X wrote:
What matters is that they are using the word in connection with classes of goods and services for which AA has a trademark. If you believe otherwise, please cite a legal source.


What nonsense is this, they are using the term
flagship for example in the screenshot to show an aircraft type. AA in their complaint has not claimed they have a trademark over flagship as an aircraft type.

D L X wrote:
That is clearly bogus as DL has announced raising their cabin experience to “flagship standards” on other aircraft.


I don’t know the exact quote you are referring to, however I suggest it would be rolling out the same product as they have on their flagship aircraft.

AA have not got a trademark over the use of flagship as an aircraft type, nor has AA made in the complaint such a claim.

D L X wrote:
it’s not the same product—one service is on an A350, and Delta is making for damn sure you know that’s better. It’s “premium.”


They are saying it’s on the A350 period, they don’t say their comfort + product on the A330 is inferior in any way to the A350. You are adding things which are not there.

D L X wrote:
Your problem is that you’re looking for an exact match, service to service, good to good. But that kind of head-in-sand mentality is not trademark law.


No I am looking at ways what DL has done meets what AA claims they trademark, I.e. “American has been using a series of federally registered “Flagship” trademark which today include the marks “Flagship,” “Flagship Lounge” and “Flagship Suite” (the “Flagship Marks” to describe premium air travel services for first and business class passengers since the 1930s and 1940s.”

AAs complaint chooses not to exercise all areas they have a trademark over, and they let other businesses like the Flagship Ballroom to use the trademark without challenge.

AAs complaint does not say they have have a trademark over the use of the word flagship to describe an aircraft type.

D L X wrote:
If you feel strongly, hit the moderation button, but what I said was true.


What I stated is my opinion, you have your opinion, that does not make it true. It is just your opinion.

D L X wrote:
If you mean 15 U.S.C. 1057, you should be aware that that’s “correction,” not “cancellation” of a certificate of registration. Its how you fix things like printing errors when the applicant and examiner had agreed on something else. Not whether an applicant should have gotten the mark or not. It has zero relevance to this discussion.


The law states that is used to correct mistakes, it does not state it is to correct printing errors. If AA and the examiner failed to exclude existing uses of flagship that can cause confusion, that is a mistake and can be corrected by the USPTO and AA can still retain its trademark.

D L X wrote:
I already showed you what you’d need to cancel a mark. 15 U.S.C. 1064.


No one is talking about cancelling it, the discussion is should the trademark exclude the common English word that multiple airlines and aircraft manufacturers use.

D L X wrote:
Thats my opinion too. In fact, it was explicitly alleged in the complaint that this has to be purposeful—DL is too sophisticated for this to have been an accident.


And yet when I suggested multiple times DL would have sought legal advice before using this you dismissed it.
Human rights lawyers are "ambulance chasers of the very worst kind.'" - Sky News
 
questions
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Re: AA sues DL over the use of the term “Flagship”

Mon Dec 30, 2019 12:53 am

Didn’t American Express have a similar trademark lawsuit with banks issuing Platinum cards?
 
washingtonflyer
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Re: AA sues DL over the use of the term “Flagship”

Mon Dec 30, 2019 1:00 am

zeke wrote:
AA have not got a trademark over the use of flagship as an aircraft type, nor has AA made in the complaint such a claim.


No court is going to dive to the detail of a particular subset of aircraft. The trademark covers, amongst other things, lounges, reservation services, etc.

D L X wrote:
it’s not the same product—one service is on an A350, and Delta is making for damn sure you know that’s better. It’s “premium.”


zeke wrote:
They are saying it’s on the A350 period, they don’t say their comfort + product on the A330 is inferior in any way to the A350. You are adding things which are not there.


And Delta has referred to its lounges as flagship....
 
questions
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Re: AA sues DL over the use of the term “Flagship”

Mon Dec 30, 2019 1:04 am

This is an interesting review.

https://www.usatoday.com/story/travel/flights/todayinthesky/2018/04/30/trip-report-reviewing-delta-one-suite-sliding-privacy-doors/526943002/

While Delta’s self-titled “flagship” doesn’t feel much like a flagship, it’s sure a lot better than the tired Boeing 767.

:lol:
 
D L X
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Re: AA sues DL over the use of the term “Flagship”

Mon Dec 30, 2019 3:45 pm

zeke wrote:
D L X wrote:
Zeke, are you reading my posts?


I do, but I don’t take what you post at face value. Multiple times you have contradicted yourself, multiple times you have stated your opinion without looking at the source.


My source is over a decade of practicing IP law, including registration of trademarks. Your source is Google. Various people have told you over and over again what the law actually is, and you keep coming back to the same irrelevant stuff. At this point, I'm fine with letting you enjoy your ignorance.
 
IPFreely
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Re: AA sues DL over the use of the term “Flagship”

Tue Dec 31, 2019 5:47 am

zeke wrote:
Multiple times you have contradicted yourself, multiple times you have stated your opinion without looking at the source.


I haven't seen DLX contradict himself once. Perhaps you should provide some examples of this.
 
usflyguy
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Re: AA sues DL over the use of the term “Flagship”

Tue Dec 31, 2019 6:19 am

Zeke, from where did you obtain your JD and what kind of law do you practice?

Seanpmassey, from where did you obtain your JD and what kind of law do you practice?
My post is my ideas and my opinions only, I do not represent the ideas or opinions of anyone else or company.
 
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zeke
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Re: AA sues DL over the use of the term “Flagship”

Tue Dec 31, 2019 3:56 pm

washingtonflyer wrote:
He then makes obscure citations to the Code of Federal Regulations which simply govern agency practice and procedure.


Have any posters that claim to be IP attorney contributions to this thread cited any relevant federal code ? When I posted from the US code for the application of a trademark one of the IP attorneys asked me for the source of the code. Wouldn’t knowing what is in the code for the application of a trademark be fundamental knowledge for any IP attorney?

I am seeing personal opinion backed up with no substance apart from a comment such as I have been practicing law for so many years just believe me.

How do you think that attitude would go before a jury?

This feels like an underhanded insult leveled at me because I am not a attorney. My day job involves reading and practically applying regulations across the world often in time critical situations. I cannot go back to an office to mull over relevant facts before scratching together my thoughts. If I cannot apply those regulations correctly in a timely fashion it can result in loss of life. Myself and other a.net users are more representative of people that you will find on a jury, if you cannot convince us of what is actually stated in the regulations your legal opinion means little.

While governments debate and pass laws, it is up to the courts, and in this case a jury to decide how it is applied to a case.

I took the time to look up the relevant trademarks (and posted them), look up the class they applied to, look up the number of other companies that have flagship trademarks, and lookup other companies that have flagship services which AA is nit defending. For example Flagship Aerospace, Flagship Airlines, and Flagship Ballroom.

It’s downright insulting for comments like these and others that I am just throwing spaghetti, or suggesting just because I am not an IP attorney means I have zero credibility. The law is not smoke and mirrors, it is based on published rule and procedure.

ikramerica wrote:
Some of us have been around long enough to remember him arguing ad nauseam how the A346 was superior to the 77W, his airline had all the data to prove it, etc even as A346 sales had dried up and 77W sales exploded. It took his own airline buying the 77W and dumping the A346 after only 7 years for that argument to stop.


Yet another underhanded insults attacking me personally and not the discussing the topic of the thread. I don’t understand why people are attacking me, Is it because they are AA fans, hate DL ?

More than happy to discuss your false allegations via PM.

washingtonflyer wrote:
No court is going to dive to the detail of a particular subset of aircraft. The trademark covers, amongst other things, lounges, reservation services, etc.


Delta does not offer for sale a product or service with flagship in its name, their reservations service is not called Delta Flagship reservations etc, their lounge is not called Delta Flagship etc.

What one sees on a website especially at large companies like airlines is not a client server model, that sort of technology is far too prone to disruption and network delays for a global audience, they adopt cloud based products often supplied by third parties.

Some of the big IT providers in the field are Sabre and Amadeus. The planning, reservations, ticketing, day of operations, and analysis functions are often different software modules, and maybe nothing more than an API, and may involve multiple vendors (eg Sabre for planning and reservations and Amadeus for ticketing and day of operations).

Many areas of regulations fail to keep pace with technology, for example if Delta used the Sabre API for reservations, the actual content of what is rendered on a webpage is not part of the reservations system. It’s kept in a different database, ticketing can be another database, day of operations (check in) another. The whole system might be hosted on something like an Amazon Web Services, I.e. it’s not actually Delta rendering the web page (looking at the page source on Delta.com I see some apps are being hosted on Amazon EC2,,some others with Rackspace).

It will take 2-3 years for this to get before a jury, and each side will have to convince that cross section of the community who appear on the jury what the trademark scope is (I assume AA would challenge anyone who served in the military or retail due to their idea of what a flagship is). AA I assume will argue like many on this thread that any use of the term regardless of context is prevented by trademark. DL I will assume will argue it has only used the term as it’s generally used descriptively in the English language.

None of the Delta products they sell include the term Flagship “to describe premium air travel services for first and business class passengers“ (From AAs complaint).

washingtonflyer wrote:
And Delta has referred to its lounges as flagship....


You have taken my quote out of context, just like I exposed how they used a screenshot that was taken out of context.

Image

This is what someone will actually see when booking on the Delta website, there is no product or service being sold that includes flagship. Where flagship appears that refers to the A350 which is their flagship aircraft type, something AA does not claim in their complaint to have a trademark over. If AA does claim to have a trademark of the use for flagship for an aircraft type I would be pleased to see the relevant text quoted.

D L X wrote:
My source is over a decade of practicing IP law, including registration of trademarks.


That is not a source, that is an opinion.

D L X wrote:
Your source is Google.


Not once have I quoted google as a source. The sources I have quoted on this thread include the USPTO (the trademark and classed), US Code, Lufthansa, Delta, the AA complaint, Seaport Hotel, and searches of the SEC and Delaware companies containing flagship.

D L X wrote:
Various people have told you over and over again what the law actually is, and you keep coming back to the same irrelevant stuff. At this point, I'm fine with letting you enjoy your ignorance.


All anyone is seeing from the various posters claiming to attorneys is their opinion, not the law. What is going to count in the end is what the jury’s collective opinion.

IPFreely wrote:
I haven't seen DLX contradict himself once. Perhaps you should provide some examples of this.


There have been multiple times, for example I provided the Lufthansa press release (and the link to the US Media Relations where it was published) where they said “Lufthansa adds flagship A350-900 to numerous North American destinations”and suggested this is the same way as Delta is using the flagship term. They replied that does not count as that was an overseas airline on an overseas website. I pointed out that that press release was issued by the Lufthansa US Media Relations in New a York, with the relevant US Address and Contact number on the press release.

They are also providing what I view as being deliberately misleading information in their posts , for example when demonstrating what a person booking on the AA website would see they posted

Image

When demonstrating what a person booking a flight on Delta they provided this misleading except of a screenshot

Image

When what would really be seen is like this, half truths cannot be summed to equal a fact.

Image


Then they have claimed on one hand not to be attacking me personally, and at the same time saying “ I'm being aggressive with a certain pilot (who can defend himself) because he is spouting out ideas that are utterly contrary to law, such as saying Delta could sue AA for using the word "One" when selling one-way fares. That isn't a matter of opinion. The pilot was wrong.”

If the poster would only take a few moments to read the complaint by AA, they would understand the source of my comments. AA in their complaint did not refer to the Delta product as the trademarked Delta One Suite, they referred to it as “One Suite”.

usflyguy wrote:
Zeke, from where did you obtain your JD and what kind of law do you practice?


Where did I claim to have one ? and how is that relevant to the topic being discussed ?
Human rights lawyers are "ambulance chasers of the very worst kind.'" - Sky News
 
IPFreely
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Re: AA sues DL over the use of the term “Flagship”

Tue Dec 31, 2019 5:29 pm

zeke wrote:
IPFreely wrote:
I haven't seen DLX contradict himself once. Perhaps you should provide some examples of this.


There have been multiple times, for example I provided the Lufthansa press release (and the link to the US Media Relations where it was published) where they said “Lufthansa adds flagship A350-900 to numerous North American destinations”and suggested this is the same way as Delta is using the flagship term. They replied that does not count as that was an overseas airline on an overseas website. I pointed out that that press release was issued by the Lufthansa US Media Relations in New a York, with the relevant US Address and Contact number on the press release.


Do you know what a contradiction is? Because you've provided no examples.

It looks like you used google to find random legal information and posted it, thinking it supported whatever theory you have. When a real IP expert pointed out why you are wrong, you should have given it up. You might have even learned something. Instead you have chosen to dig yourself into a deep hole. Now you have zero credibility.
 
D L X
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Re: AA sues DL over the use of the term “Flagship”

Tue Dec 31, 2019 8:38 pm

zeke wrote:
Have any posters that claim to be IP attorney contributions to this thread cited any relevant federal code ?

Yes. Search this thread for "Lanham" or "15 U.S.C." and you'll see that both washingtonflyer and I have cited federal statutes, and in particular, in response to you. ("Lanham Act" is the name for United States trademark law. "15 U.S.C." is the collection in the United States Code where Lanham is codified.)

On the other hand, you've cited things like "15.1507," which is not a format for a statute, CFR, TMEP section, or other legal source such that other readers would be able to find it for themselves. That's why I asked you to what you were referring. If it were a statute, it would mean something different than a TMEP section, and I would be able to research why you thought it meant what you thought it meant. You didn't seem to realize that you weren't making any sense.

But since you claim you didn't google, where did you even get "15.1507" from? It's clearly not your personal knowledge, so who told it to you? And why did that person say it was applicable?

zeke wrote:
This feels like an underhanded insult leveled at me because I am not a attorney.
* * *
It’s downright insulting for comments like these and others that I am just throwing spaghetti, or suggesting just because I am not an IP attorney means I have zero credibility. The law is not smoke and mirrors, it is based on published rule and procedure.

I can't help if someone feels insulted, and if you feel that way, I accept that your feelings are real, and I am indeed sorry that you've felt pain.

But I won't take back what I said. I attacked your positions -- I did not attack you personally. Your position is incorrect, and appeared to be the result of googling, not law. If you feel that attacking your positions is a personal attack, you should ask yourself why your personal identity is tied to your positions.

zeke wrote:
None of the Delta products they sell include the term Flagship “to describe premium air travel services for first and business class passengers“ (From AAs complaint).

Delta does not offer for sale a product or service with flagship in its name

And several posters have tried to tell you that the name of DL's product is immaterial to infringement. The question is ONLY whether DL is using a trademarked term (flagship) in connection with selling their own stuff (airline passenger tickets, etc.). They are. That's why the screenshots that only show the DL flights using "flagship" are adequate evidence. Additional context (flight records that don't infringe) doesn't undo that DL is using "flagship" to sell their own stuff.

This is the law:
15 U.S.C. 1114: Trademark Infringement wrote:

(1) Any person who shall, without the consent of the registrant—
(a) use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive; or
(b) reproduce, counterfeit, copy, or colorably imitate a registered mark and apply such reproduction, counterfeit, copy, or colorable imitation to labels, signs, prints, packages, wrappers, receptacles or advertisements intended to be used in commerce upon or in connection with the sale, offering for sale, distribution, or advertising of goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive,
shall be liable in a civil action by the registrant for the remedies hereinafter provided.


Any person who shall, without the consent of the registrant, use in commerce any copy of a registered mark, in connection with the sale, offering for sale any goods or services on which such use is likely to cause confusion shall be liable in civil action.

Some posters have remarked about the "likely to cause confusion" part. That's a legit argument, but it is a very uphill battle for DL because they're using the identical word as the registered mark. Courts have held that using an identical mark in the same industry is prima facie likely to confuse. See A&H Sportswear v. Victoria's Secret Stores, Inc., 237 F. 3d 198, 207 (3d. Cir. 2000).
 
Cubsrule
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Re: AA sues DL over the use of the term “Flagship”

Tue Dec 31, 2019 9:31 pm

D L X wrote:
And several posters have tried to tell you that the name of DL's product is immaterial to infringement. The question is ONLY whether DL is using a trademarked term (flagship) in connection with selling their own stuff (airline passenger tickets, etc.). They are. That's why the screenshots that only show the DL flights using "flagship" are adequate evidence. Additional context (flight records that don't infringe) doesn't undo that DL is using "flagship" to sell their own stuff.


What is the "stuff" covered by AA's registration? Is it all airline tickets or just some premium product? DL's use is different than AA's in that it refers to an aircraft, not a class of service, but I'm not clear on the legal significance of that.
I can't decide whether I miss the tulip or the bowling shoe more
 
D L X
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Re: AA sues DL over the use of the term “Flagship”

Tue Dec 31, 2019 10:36 pm

Cubsrule wrote:
What is the "stuff" covered by AA's registration? Is it all airline tickets or just some premium product? DL's use is different than AA's in that it refers to an aircraft, not a class of service, but I'm not clear on the legal significance of that.

Lots. The marks have really broad descriptions. I’ve highlighted a few for 5854303, but they have some other registrations too. I’ll be honest. I don’t get the office machines one.

C 035. US 100 101 102. G & S: Office machines and equipment rental; company office secretarial services; providing office machines and equipment; provision of company office secretarial services; provision of office support staff; provision of clerical and secretarial services; providing facilities, office machines and equipment for conducting business, business meetings, and conferences; providing professional support staff to assist in the conducting of office business, meetings and conferences; membership club services in the field of travel and transportation. FIRST USE: 19980914. FIRST USE IN COMMERCE: 19980914

IC 039. US 100 105. G & S: Passenger baggage checking and handling, namely, airport baggage check-in services; providing air transportation reservation services; airport services featuring transit lounge facilities for passengers; airline passenger ticketing, check-in and boarding services; escorting of travelers; providing professional support staff to assist in the management of travel plans; air transport of passengers, cargo, and freight; providing travel agency services, namely, providing travel reservation services for others, air transportation reservation services for others, vehicle reservation services for others, cruise reservation services for others and vacation reservation services in the nature of coordinating travel arrangements for individuals and groups; providing information in the field of travel; providing information concerning cargo and passengers' luggage in transit and delivery; transportation services, namely, checking of baggage; airport services featuring transit lounge facilities for passengers, including shower facilities; booking and providing ancillary travel services, namely, making reservations in the nature of seat selection, baggage check-in, transfer of checked baggage to aircraft, transfer of carry-on baggage to aircraft; airline services, namely, priority boarding for customers, seat upgrades, and access to airport lounge facilities; airport services, namely air passenger wheel-chair services at airport; airport services featuring transit lounge facilities for passengers. FIRST USE: 19360000. FIRST USE IN COMMERCE: 19360000

IC 043. US 100 101. G & S: Providing conference rooms; food and drink catering; café services; restaurant services; bar services; providing conference room facilities; providing lounge facilities for providing food and drink; Providing hotel reservation and coordination services for others; hotel services; restaurant services, namely, providing of food and drink in airports and on aircraft. FIRST USE: 19980914. FIRST USE IN COMMERCE: 19980914

IC 045. US 100 101. G & S: Facilitating expedited passenger screening, namely, providing priority access to airline passenger and baggage security screening; airline services, namely, providing priority security screening for customers. FIRST USE: 19980914. FIRST USE IN COMMERCE: 19980914
 
Cubsrule
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Re: AA sues DL over the use of the term “Flagship”

Tue Dec 31, 2019 10:42 pm

D L X wrote:
Cubsrule wrote:
What is the "stuff" covered by AA's registration? Is it all airline tickets or just some premium product? DL's use is different than AA's in that it refers to an aircraft, not a class of service, but I'm not clear on the legal significance of that.

Lots. The marks have really broad descriptions. I’ve highlighted a few for 5854303, but they have some other registrations too. I’ll be honest. I don’t get the office machines one.

C 035. US 100 101 102. G & S: Office machines and equipment rental; company office secretarial services; providing office machines and equipment; provision of company office secretarial services; provision of office support staff; provision of clerical and secretarial services; providing facilities, office machines and equipment for conducting business, business meetings, and conferences; providing professional support staff to assist in the conducting of office business, meetings and conferences; membership club services in the field of travel and transportation.FIRST USE: 19980914. FIRST USE IN COMMERCE: 19980914


My bolding may clear up that category. Thanks again for your contributions here.
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D L X
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Re: AA sues DL over the use of the term “Flagship”

Tue Dec 31, 2019 10:45 pm

Cubsrule wrote:
D L X wrote:
Cubsrule wrote:
What is the "stuff" covered by AA's registration? Is it all airline tickets or just some premium product? DL's use is different than AA's in that it refers to an aircraft, not a class of service, but I'm not clear on the legal significance of that.

Lots. The marks have really broad descriptions. I’ve highlighted a few for 5854303, but they have some other registrations too. I’ll be honest. I don’t get the office machines one.

C 035. US 100 101 102. G & S: Office machines and equipment rental; company office secretarial services; providing office machines and equipment; provision of company office secretarial services; provision of office support staff; provision of clerical and secretarial services; providing facilities, office machines and equipment for conducting business, business meetings, and conferences; providing professional support staff to assist in the conducting of office business, meetings and conferences; membership club services in the field of travel and transportation.FIRST USE: 19980914. FIRST USE IN COMMERCE: 19980914


My bolding may clear up that category. Thanks again for your contributions here.


Yes, those make sense, but each clause separated by semicolons is an individual description. I don’t know what AA is doing in commerce with office machines and equipment rental.
 
RDUDDJI
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Re: AA sues DL over the use of the term “Flagship”

Tue Dec 31, 2019 11:15 pm

I can't wait to see all the other "flagship" lawsuits. Flagship University, Flagship store, flagship vehicle, flagship phone, flagship tv station, etc.

The Royal (UK) Navy should sue all of them since they created the term in the 1600s. :D /sarcasm

UpNAWAy wrote:
Good lord this thread is 90% nonsense.


That's probably a low estimate. :D
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wjcandee
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Re: AA sues DL over the use of the term “Flagship”

Tue Dec 31, 2019 11:25 pm

D L X wrote:
Any person who shall, without the consent of the registrant, use in commerce any copy of a registered mark, in connection with the sale, offering for sale any goods or services on which such use is likely to cause confusion shall be liable in civil action.

Some posters have remarked about the "likely to cause confusion" part. That's a legit argument, but it is a very uphill battle for DL because they're using the identical word as the registered mark. Courts have held that using an identical mark in the same industry is prima facie likely to confuse. See A&H Sportswear v. Victoria's Secret Stores, Inc., 237 F. 3d 198, 207 (3d. Cir. 2000).


I said likelihood of confusion from the get-go. And I said it was gonna be fact-dependent.

I'm guessing from reading all of this that you do little or no trial work. I don't mean that as an insult. It's just a tone I'm sensing -- that of conviction/definiteness as to the outcome -- which is relevant insofar as I deal with so many situations where the real estate or corporate or IP lawyer has told the client definitively what his situation is, and when I look at it, my perspective from the trial end of things ends up being very different. Indeed, the outcome in court is almost-always very different from what at least one of those lawyers told the client that ends up on the losing side.

I always see both sides. I always think I could win either side. Indeed, doing an effective job of preparing my side means figuring out everything that the other side should argue if I were representing them, and I'm often surprised when they don't. Quoting statutes at a dispute, and even quoting some cases, isn't all that helpful. I can point to several matters over the years where the opposing executive's answer to a single question I asked him in a deposition -- one that nobody in the room but me noticed -- was the determining factor in a case that the other side is still shocked they lost.

You have given a good primer on the contours of the relevant IP laws. Likelihood of confusion, with regard to the facts of each separate use, is going to be determinative. And that is highly-fact-dependent, and also informed by intent, which is something I don't think you have mentioned. So if AA gets some DL internal document in discovery that reveals some kind of relevant intent on DL's part, then they're screwed; if AA execs have written memos admitting any of a number of things, that could truly-damage their case.

And remember that there's lots of teaching that evidence of actual confusion or lack thereof isn't determinative, either. It could be that the Court finds that even though there is evidence of actual confusion, given the weakness of the mark, there shouldn't be any "likelihood of confusion" (the legal concept). That's the "Sun" case. Or vice-versa.

Until we know what the facts are, through discovery, with respect to each challenged use, we know nothing. There are good arguments on either side, which will be bolstered or undermined by the actual facts, as well as surveys, contacts from customers, etc.

AA hometowns the F&#k out of any and all competitors by filing lawsuits in Ft Worth. Which is why that hometown Fort Worth firm is involved. Sometimes, they get initial action that's favorable, only to have the appellate courts do the right thing. I wouldn't be surprised if a local District Judge, on the face of everything, found that their initial case was facially appealing and issued a TRO. Which means nothing if DL really wants to pursue this through discovery and trial.

Chances are it gets worked out much sooner, but stranger things have happened. I do think that AA has better ways to spend its money these days, and piling on the attorneys from all over the country might be nothing more than an attempt to give the appearance that they're ready to take it all the way, when they actually aren't.

And I still like my Sportatorium proposal, even though the venue itself is sadly long gone, along with all but one of the Von Erichs. Personally, I would rather see a Crandall vs. Anderson grudge match of former CEOs, but Dougie vs a random DL guy would also be fun.

PS Oh, yeah. I meant to say that "prima facie" doesn't mean irrebuttable. And the Third Circuit case you cited actually supports my positions as expressed throughout this thread. Hadn't looked at this stuff in a while, so I was happy to read it.
Last edited by wjcandee on Tue Dec 31, 2019 11:43 pm, edited 1 time in total.
 
D L X
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Re: AA sues DL over the use of the term “Flagship”

Tue Dec 31, 2019 11:43 pm

Wjcandee, I’m a litigator.
 
wjcandee
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Re: AA sues DL over the use of the term “Flagship”

Tue Dec 31, 2019 11:44 pm

D L X wrote:
Wjcandee, I’m a litigator.


Well, I was trying to give you an out for the definiteness of your statements. Silly me.

Maybe because you know the law so well, you're irked by some of the admittedly-naive statements of some on here who don't, who are just expressing more of a General Public "This makes sense" view of things, which they're entitled to do. And you are facing down one particular poster who is approaching this thread with a great deal of tenacity, and trying to show him there is a lot of weight on the other side of the scale. Maybe that's why it comes across a certain way to me.

And like I said you have given everyone a good primer on trademark law, which is a valuable service.

I'm really not trying to be mean. I just think that this case is very up in the air (heard it) right now, and there's gonna be a lot that needs to come out before anyone really knows where it will go or should go.

To me at least...
Last edited by wjcandee on Tue Dec 31, 2019 11:51 pm, edited 3 times in total.
 
D L X
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Re: AA sues DL over the use of the term “Flagship”

Tue Dec 31, 2019 11:49 pm

I’m not saying it’s a slam dunk. “Uphill battle” is not synonymous with definite win, but true, I like AA’s odds. I’ve tried to be firm in that the case is not “silly,” as described earlier on this thread. Thanks for the out, but it’s not necessary. You should read the case law on identical matches.
 
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zeke
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Re: AA sues DL over the use of the term “Flagship”

Wed Jan 01, 2020 2:23 am

D L X wrote:
Yes. Search this thread for "Lanham" or "15 U.S.C." and you'll see that both washingtonflyer and I have cited federal statutes, and in particular, in response to you. ("Lanham Act" is the name for United States trademark law. "15 U.S.C." is the collection in the United States Code where Lanham is codified.)


Again a half truth. Citing a statute is not providing the code, that is about as useless as me saying part 25 when someone asks a certification question. You accused me on this thread of throwing spaghetti until something sticks, but you didn’t show any specific details.

D L X wrote:
On the other hand, you've cited things like "15.1507," which is not a format for a statute, CFR, TMEP section, or other legal source such that other readers would be able to find it for themselves.


Any yet is I were to use a reference to 25.306 on this site no one would have an issue with it.

D L X wrote:
But since you claim you didn't google, where did you even get "15.1507" from? It's clearly not your personal knowledge, so who told it to you?


I read the trademark law published online, when I copy the reference on my phone or tablet the format of the HTML special characters which does not copy well. I am switching between tabs and editing on a small screen.

D L X wrote:
Your position is incorrect, and appeared to be the result of googling, not law. If you feel that attacking your positions is a personal attack, you should ask yourself why your personal identity is tied to your positions.


You have been attacking me personally repeatedly, several times you have referred to me as a pilot like that somehow invalidates me as a human being or what I post. You even went as far as to say what I was posting was dangerous, like you were a flat earther and I dare to mention a globe.

D L X wrote:
This is the law:


Well that is one snippet of code, the “cause confusion, or to cause mistake, or to deceive”; is something you have been doing by posting excerpts of the DL website and not what a consumer would actually see.

D L X wrote:
Some posters have remarked about the "likely to cause confusion" part. That's a legit argument, but it is a very uphill battle for DL because they're using the identical word as the registered mark. Courts have held that using an identical mark in the same industry is prima facie likely to confuse. See A&H Sportswear v. Victoria's Secret Stores, Inc., 237 F. 3d 198, 207 (3d. Cir. 2000).


For several pages I have been highlighting your improper use of a excerpt of the DL website to push your agenda. If this alone was presented to a consumer (as you presented), I could see an argument there is no strong Delta branding at all in the screen shot and it could cause confusion.

Image

However I exposed this as a con, what the consumer would see has delta in the URL, Delta branding, Delta products. Consumers would not be confused as to the origins of the product. That and the minor matter of fact that AA does not even fly that route.

Image

The infringement law is there to protect consumers from deceptive marketing practices and trademark owners from unfair competition, my view is DL is not doing that. What AA should be doing is using the antidilution law to address the likelihood of consumer confusion, however the problem with that is AA would have to show that flagship is a famous and consumers find it to be synonymous with AA. As I have said earlier on this thread, the word flagship is not something I associate with AA, I associate it with the famous flagship retail stores like the Apple Cube or the best vessel/aircraft in a fleet. As best this is blurring, however the flagship word is a normal descriptive English word, they would need to prove a likelihood of confusion.

wjcandee wrote:
I said likelihood of confusion from the get-go. And I said it was gonna be fact-dependent.


Thank you for that post, it sums up what I have been trying to say, but have failed to do effectively.
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Re: AA sues DL over the use of the term “Flagship”

Wed Jan 01, 2020 4:55 am

I just hope the case is dismissed as the frivolous bs it is and if it goes forward, I hope DL prevails.
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Lrockeagle
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Re: AA sues DL over the use of the term “Flagship”

Wed Jan 01, 2020 7:21 am

I mean, AA called their training facility Flagship University. At least that’s what it was when I spent five weeks there. Seems like an easy case to me.

And wow at the time some people spend on this....whew
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I got $20 says AA takes their 787's with GE powerplants. Just a hunch. Any takers?
 
bhmdiversion
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Re: AA sues DL over the use of the term “Flagship”

Wed Jan 01, 2020 12:51 pm

So... since American is suing Delta over the term "Flagship", does that mean that Delta can countersue American since Pinnacle/Endeavor used the call sign "Flagship" previous to American re-registering the term "Flagship" in 2009?
 
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Re: AA sues DL over the use of the term “Flagship”

Wed Jan 01, 2020 1:28 pm

Lrockeagle wrote:
I mean, AA called their training facility Flagship University. At least that’s what it was when I spent five weeks there. Seems like an easy case to me.

And wow at the time some people spend on this....whew

I suspect the time spent is due to the fact that the "Flagship" involved is the A350.
 
frmrCapCadet
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Re: AA sues DL over the use of the term “Flagship”

Wed Jan 01, 2020 4:10 pm

The litigator is speaking like a litigator. Nothing wrong with that. Just keep it in mind.
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IPFreely
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Re: AA sues DL over the use of the term “Flagship”

Wed Jan 01, 2020 5:54 pm

frmrCapCadet wrote:
The litigator is speaking like a litigator. Nothing wrong with that. Just keep it in mind.


And his posting partner in this thread is speaking like someone who got his J.D. from the Wikipedia College of Law at the University of Google.
 
wjcandee
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Re: AA sues DL over the use of the term “Flagship”

Thu Jan 02, 2020 3:17 am

Interesting question: Why DID Endeavor change its code from FLG to EDV and its callsign from Flagship to Endeavor? That change came 3 years after Pinnacle emerged from Chapter 11 as Endeavor and as a subsidiary of DL. So the temporal connection isn't obvious.

The reasons behind that might be one of those facts that I mention as relevant. Or the reasons might be totally-irrelevant.
 
WPvsMW
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Re: AA sues DL over the use of the term “Flagship”

Thu Jan 02, 2020 8:02 am

With such industry giants at the bar, this suit will be a battle of expert witnesses and 10,000-sample consumer surveys. Likelihood of confusion.... there aren't any bright lines between about 8% to 15% confusion. Below 8% is usually considered noise, and above 15% is usually construed as consumer confusion supporting the case for infringement. Above 20% confusion, slam dunk for the TM owner. The second fuzzy part is defining the consumer universe. Million milers know DL from AA, whatever branding is put on the service. However, the relevant consumer universe is probably the VFR/vacation segment... i.e., the majority of the traveling public in the aft cabin.

Trademark dilution ... even fuzzier thresholds than LOC.
 
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Re: AA sues DL over the use of the term “Flagship”

Thu Jan 02, 2020 8:10 am

WPvsMW wrote:
However, the relevant consumer universe is probably the VFR/vacation segment... i.e., the majority of the traveling public in the aft cabin.


Would that still hold true as this case is about a premium product which is not targeted at the majority of the traveling public sat at the back?
 
WPvsMW
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Re: AA sues DL over the use of the term “Flagship”

Thu Jan 02, 2020 8:17 am

Depends on the judge... it's a question of law (vs. a question of fact).
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D L X
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Re: AA sues DL over the use of the term “Flagship”

Mon Feb 10, 2020 10:12 am

Update, for those who care (which might be just me!), delta.com has changed its website. Now instead of saying “flagship” in its booking engine, it says “FLAGSHIP A350.”

Is that enough? I’m not sure. It’s definitely a closer question now than it was before, as the extra context may remove some confusion. But we now know this: DL knew they weren’t going to win.
 
Cubsrule
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Re: AA sues DL over the use of the term “Flagship”

Mon Feb 10, 2020 4:47 pm

D L X wrote:
Update, for those who care (which might be just me!), delta.com has changed its website. Now instead of saying “flagship” in its booking engine, it says “FLAGSHIP A350.”

Is that enough? I’m not sure. It’s definitely a closer question now than it was before, as the extra context may remove some confusion. But we now know this: DL knew they weren’t going to win.


Perhaps I'm just insufficiently creative, but it's hard for me to see a viable infringement claim as to "Flagship A350." First, describing a particular aircraft (truthfully) as the flagship of the fleet is either not protectable or generic. Second, there can be no confusion about the "Flagship A350" and any AA aircraft or service since AA does not operate 359s.
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wjcandee
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Re: AA sues DL over the use of the term “Flagship”

Mon Feb 10, 2020 6:32 pm

D L X wrote:
Update, for those who care (which might be just me!), delta.com has changed its website. Now instead of saying “flagship” in its booking engine, it says “FLAGSHIP A350.”

Is that enough? I’m not sure. It’s definitely a closer question now than it was before, as the extra context may remove some confusion. But we now know this: DL knew they weren’t going to win.


That's funny. I thought they could obviate this by saying A350 Flagship. I guess Flagship A350 works as well.
 
D L X
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Re: AA sues DL over the use of the term “Flagship”

Mon Feb 10, 2020 7:31 pm

wjcandee wrote:
D L X wrote:
Update, for those who care (which might be just me!), delta.com has changed its website. Now instead of saying “flagship” in its booking engine, it says “FLAGSHIP A350.”

Is that enough? I’m not sure. It’s definitely a closer question now than it was before, as the extra context may remove some confusion. But we now know this: DL knew they weren’t going to win.


That's funny. I thought they could obviate this by saying A350 Flagship. I guess Flagship A350 works as well.

You should send them a bill. :P
 
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Re: AA sues DL over the use of the term “Flagship”

Mon Feb 10, 2020 11:01 pm

Let’s hope Delta doesn’t infringe upon AA’s Race To The Bottom® tagline.
 
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Re: AA sues DL over the use of the term “Flagship”

Tue Feb 11, 2020 1:04 am

D L X wrote:
wjcandee wrote:
D L X wrote:
Update, for those who care (which might be just me!), delta.com has changed its website. Now instead of saying “flagship” in its booking engine, it says “FLAGSHIP A350.”

Is that enough? I’m not sure. It’s definitely a closer question now than it was before, as the extra context may remove some confusion. But we now know this: DL knew they weren’t going to win.


That's funny. I thought they could obviate this by saying A350 Flagship. I guess Flagship A350 works as well.

You should send them a bill. :P


Hang on, I thought all of the armchair experts above were saying that AA was absolutely, definitely, positively, without a shadow of a doubt going to have their case thrown out because Delta is always a winner. You're telling me that the people with legal expertise on this Board were actually right? I'm shocked............
 
VS11
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Re: AA sues DL over the use of the term “Flagship”

Tue Feb 11, 2020 2:06 am

D L X wrote:
Update, for those who care (which might be just me!), delta.com has changed its website. Now instead of saying “flagship” in its booking engine, it says “FLAGSHIP A350.”

Is that enough? I’m not sure. It’s definitely a closer question now than it was before, as the extra context may remove some confusion. But we now know this: DL knew they weren’t going to win.


No, it is not enough. Not in the legal profession here but the reason it was registered is that no competitor can use it. Yes, now it signifies an aircraft type, not a service but referring to the aircraft type is workaround way to allude to the service. To me, this violates the spirit of the trademark law.
 
KlimaBXsst
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Re: AA sues DL over the use of the term “Flagship”

Sun Mar 01, 2020 12:03 am

Flagship flights should do well out of Seattle for many.
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