Let me start by saying that I’m obviously no lawyer. That being said, when I read about this lawsuit for the first time I hard a hard time believing that it wasn’t either from April 1, a joke altogether, or from a different century when maybe there might have been merit to this.
In this post:
American Suing Delta Over Use Of “Flagship” Term
American Airlines filed a lawsuit against Delta Air Lines in Texas federal court yesterday over trademark infringement. American is accusing Delta of confusing customers by adopting the term “Flagship.”
American has used the term “Flagship” as a trademark for their “premium air service” (LOL) since the 1930s, claiming that Delta only adopted the term in 2017.
American does indeed brand a lot of products with the term “Flagship” — they have Flagship First, Flagship Business, Flagship Lounges, Flagship First Dining, Flagship Basic Economy, Flagship Maintenance Delays, Flagship Oasis, etc.
Flagship branding at American’s airport lounges
As American wrote in the complaint:
“Despite knowing that American owns the exclusive right to use the Flagship marks, Delta has begun to use the terms ‘flagship,’ ‘Flagship,’ and ‘FLAGSHIP’ to promote its own airport lounges and premium services and interiors.
This is no accident. American believes Delta is looking to capture additional market share by targeting its greatest competitor, American, and eroding the brand, goodwill, and value that American has built over the past eighty years through the Flagship marks.”
Ah, yes! Delta is trying to piggy-back on all that goodwill that American Airlines has built over the years!
American’s 777 “Flagship Business”
Has Delta Adopted The “Flagship” Branding?
American absolutely uses the term “Flagship” consistently for a lot of their services. However, has Delta really been stealing this term from American?
American claims that Delta started using the term “flagship” in 2016, first as a modifier. For example:
- Delta has referred to their new business class product as their “flagship Delta One Suite”
- Delta has referred to their A350 as the “flagship Airbus A350”
- Delta has referred to their new SkyClub as the “flagship Delta SkyClub at ATL”
Note that this isn’t done consistently, but rather primarily in press releases, etc. For example, the page describing Delta’s business class doesn’t use the word “flagship” once.
American claims that they’ve gone from using the term “flagship” as a modifier to using it to “indicate premium-level interiors and services for certain flights.”
American also writes in the complaint:
“Delta’s steady increase in the branding of its lounges, flights, and premium-level interiors and in-flight services with the terms ‘flagship,’ ‘Flagship,’ and ‘FLAGSHIP’ is likely to cause confusion with the relevant traveling public, and has likely already caused such confusion.”
Right, so people saw a press release where Delta uses the term “flagship” once, then they go to delta.com to book a ticket, and then they’re shocked when they board a plane and find out that they’re not actually enjoying the luxury of American Flagship Business? “But I thought I was booking American!”
Delta has referred to their new business class as the “flagship Delta One Suite”
My Take On this Lawsuit
Funny enough I got into an argument with a reader on this very topic a few months back. While reviewing Turkish’s 787 business class, I stated that previously the 777 was Turkish’s flagship aircraft. A reader (perhaps the lawyer in this case?) called me out and said:
Stop calling Flagship aircraft, flagship premium cabin, flagship this or that. Flagship is a trademark from American premium products. Flagship first, business, Lounge. Just like delta ONE.
I responded:
No? Flagship is a real word with a definition, and I’m using that word as it’s defined in the dictionary. Flagship First, Flagship First Dining, etc., are American specific terms, but using the word “flagship” as defined is very different than your “Delta One” comparison (because “one” otherwise doesn’t describe an aircraft type, product, etc.).
And I guess that’s my take on all of this. The word flagship is defined as “the best or most important thing owned or produced by a particular organization.” If Delta is using this lower case term to sometimes describe their newest and biggest lounge at an airport, or their best aircraft, or their business business class seats, I think that’s appropriate and accurate.
If American takes issue with Delta using the term “flagship,” I feel like they need to go after just about every airline, no? A few quick headlines I find with two minutes of Googling show Virgin Atlantic, Lufthansa, and British Airways using the term as well:
- “Virgin Atlantic selects the A350 XWB as its future flagship”
- “On Sunday, March 31st, Lufthansa’s flagship aircraft, the Airbus A350-900, will begin to operate the Charlotte – Munich route and fly seven times per week to the capital of Bavaria in South Germany.”
- “The Boston lounge development reflects the style and elegance of our flagship lounges at London Heathrow Terminal 5, with areas to relax and unwind, or refresh and work.”
Look, it’s Lufthansa’s new “flagship” aircraft!
Bottom Line
American is suing Delta because American has the term “flagship” trademarked to refer to their “premium services,” and Delta has also selectively been using the term as a modifier to describe their newest lounges, aircraft, or seats.
As a non-lawyer this lawsuit seems ridiculous — “flagship” is a real word with a real meaning, and a lot of airlines and aircraft manufacturers use the term to describe their products and services. Heck, I use it all the time to describe new planes and products.
Maybe lawyers can chime in whether the law agrees with logic in this case, but personally I had to chuckle when I saw that American thinks Delta is “eroding the brand, goodwill, and value that American has built over the past eighty years through the Flagship marks.”
Yeah, that’s what’s giving Delta the advantage…
What do you make of this lawsuit?
(Tip of the hat to @xJonNYC)
I'm predicting that this lawsuit is not going to be settled like Southwest did, when Kelleher arm wrestled with the CEO of the other company that used their "Just Plane Smart" motto.
AA should sue Donald Trump for using the word "American", and UA should sue him for using the word "United".
Having a Business law background and negotiate trademarks for product licensing, this case is a slam dunk for AA. Their only error is they should have acted sooner but they are acting soon enough:
- AA owns and has trademarked "Flagship" as an integral part of their service mix.
-AA actively uses and promotes the trademark to the traveling public.
-This point is important: DL's use and AA's use is in the same...
Having a Business law background and negotiate trademarks for product licensing, this case is a slam dunk for AA. Their only error is they should have acted sooner but they are acting soon enough:
- AA owns and has trademarked "Flagship" as an integral part of their service mix.
-AA actively uses and promotes the trademark to the traveling public.
-This point is important: DL's use and AA's use is in the same industry to the same customer base
touting the same thing: Service which is confusingly similar).
-AA must actively defend the trademark which they are if they wish to keep it pure.
That's it. Everything else such as dictionary definitions et-al, is irrelevant..
.
Just gonna leave this here...Endeavor Air (a wholly-owned subsidiary of Delta) used to have the call sign "Flagship" on the radio with Air Traffic Control until a few years ago.
If American wants to sue for that, shall we sue American for the use of the word? Flagship originally used in describing ships. The ones that were the best in the fleet... fastest... heavily armed... not originally coined for airlines.
A name/slogan doesnt make you better. Its your seats, service and employees is what make a good airline. That's why I love JetBlue so much.
Delta should just say "The Best" instead of flagship. That ought to make AA happy!
Alternatively, they could substitute "flagship" with "The much better than American Airlines".
@Nick
The naval usage predates the USN. More likely originates (at least in the English language) with the Royal Navy.
Modern jet aircraft are neither "ships" nor do they fly "flags".
I just don’t see it... nearly every airline to some degree seems to have used the term “flagship” as a modifier at some time. Be it a aircraft type, service or other offering of some sort. It will be fascinating to see how AA battles DL on the subject.
Typical form that AA will spend a chunk of change on a word for branding but still won’t pay their mechanics or even give their employees a yearly uniform allowance. Do you really think AA cares about its customers if they don’t care about their employees ????
While they are at it perhaps AA should sue Apple, Samsung, etc. (The model whatever is our flagship smartphone!).
And they probably should sue the US Navy as well as Navy Admirals who seem to use flagships.
Lucky, this is not a silly lawsuit. (Indeed, you don’t hire the top flight law firms present here for silly litigation.)
The IP/trademark lawyers here are nearly unanimous here. AA has a trademark, and Delta’s use of the term in connection to air travel and In advertisements dilutes AA’s mark. That’s trademark infringement.
There's one aspect of copyright that the article points out that has legal merit and will nullify the case: in order to keep a copyright, a company must rigorously defend it. Since, as the article points out, they have not done so against other companies, they lose most of the merit of their defense of the term in this case. You can't just say "company x is violating company y's copyright", you need to say...
There's one aspect of copyright that the article points out that has legal merit and will nullify the case: in order to keep a copyright, a company must rigorously defend it. Since, as the article points out, they have not done so against other companies, they lose most of the merit of their defense of the term in this case. You can't just say "company x is violating company y's copyright", you need to say "company y owns this copyright and company x violated it". Company x has to prove that their use is not outside of what company y has allowed to happen in the past, and company y needs to prove that company X's actions are confusing to company y's customers. If company x can say that company z has been using the term identically and company y has not defended that use nor can demonstrate customer confusion by prior use, than they will lose, probably in summary judgement if they get an impartial judge. They might even risk losing the copyright altogether, which is why this will get settled and we will never hear of it again.
Delta - "oh crap American uses the word flagship? We didn't didn't realize, we don't want oursves to look ANYTHING Like that train wreck. Yes we'll stop we'll stop you don't have to sue."
Delta should have called themselves America’s Flagship Airline. Because it’s true.
Interesting topic for sure, and educational for those of us not in the legal/trademarking business.
I would think that United's Polaris is different because you would never otherwise use the word in a sentence regularly the way you would use flagship. Now if American had called it flAAgship service then that would be clear.
Hi everyone! I thought the comments on this article would be the best place to formally announce my new blog, OneNauticalMileAtATime! I will primarily be reviewing cruise lines (starting with the new Virgin Voyages) and will use every waking moment to shame Delta for getting me stuck in Atlanta without fail every time I fly them!
Be sure to check me out at onenmatatime.com !!!
s/
Nick - re: the US Navy - they have a similar case against American for branding their lounges with the cheese blocks and paid drinks “Admirals Club” since I get go in and I’m not an admiral of the USN ;)
@Kevin
I guess we can call this American Airline's Flagship Lawsuit?
Delta really need to troll American big time for this. Have some fun with it.
“Delta: The fun American airline.
Aand on time, for the most part”.
Surprised they haven’t gone after Alcoholics Anonymous.
They really need to get their house in order than think of spurious lawsuits. Delta’s defence will be exactly what you came up with Ben - just google. Delta “BA do it. How come you’re not suing them? Because they’re a partner airline?”
The word "flagship" has been used so many times int his post and comments that it's lost all meaning to me.
There, I solved their lawsuit. It's all a moo point now. You know, like a cow's opinion? Doesn't mean anything. It's moo.
The 3 legacy carriers are all owned by the same institutional investment houses. All this nonsense is posturing to make it seem like competition. Even WN is part of the cartel.
The article says American specifically claims that Delta uses the words “FLAGSHIP” and “Flagship” - not just the all-lower-case word “flagship.” But the article only gives examples of Delta’s use of the all-lower-case word. While I think the lawsuit is spurious, and American should be focusing on improving customer service, I do think that if Delta started using the all-lower-case word and gradually started using the capitalized or all-caps word, then American may have a...
The article says American specifically claims that Delta uses the words “FLAGSHIP” and “Flagship” - not just the all-lower-case word “flagship.” But the article only gives examples of Delta’s use of the all-lower-case word. While I think the lawsuit is spurious, and American should be focusing on improving customer service, I do think that if Delta started using the all-lower-case word and gradually started using the capitalized or all-caps word, then American may have a case. But I am also not a lawyer.
I can't judge the merits of this case; I often find such fights irksome myself. But seeing this story did raise an eyebrow, because I immediately recognized the claim as a piece of airline history. And I see your point about this story seeming to be "from a different century when maybe there might have been merit to this."
I think American's use of "Flagship" as a trademark began around 1936 when it got its...
I can't judge the merits of this case; I often find such fights irksome myself. But seeing this story did raise an eyebrow, because I immediately recognized the claim as a piece of airline history. And I see your point about this story seeming to be "from a different century when maybe there might have been merit to this."
I think American's use of "Flagship" as a trademark began around 1936 when it got its first Douglas DC-3s. Douglas had designed the DC-3 for American, which wanted an airliner roomy enough to have sleeper berths for its transcontinental flights, but faster and more modern than its existing sleepers, which were Curtiss Condor biplanes. When American got its DC-3s, it immediately dubbed them "Flagships" to distinguish these new planes from its existing Douglas aircraft, which were smaller DC-2s. American made a point of trumpeting its Flagships in its marketing, as you can see if you examine its timetables from the late 1930s. (The timetableimages.com website is a great resource for this if you're at all interested in airline history.) It named the aircraft accordingly; the DC-3 "Flagship Detroit" still exists today, restored to late 1930s American Airlines colors.
The other big U.S. airlines behaved similarly with their DC-3s: United named its DC-3s "Mainliners" (since its called its transcontinental route "the Main Line Airway"), TWA's were "Super Skyliners", and Eastern's were "Silverliners". Delta at this time was still a scrappy little upstart that only served the Deep South, flying much smaller Lockheed Model 10 Electras.
It amuses me that American has retained their moniker for so long when most other surviving airlines abandoned all trace of theirs decades ago.
Yes. This is a quite absurd lawsuit.
That issue aside, the argument regarding Turkish airlines or the others with Lufthansa and BA are completely irrelevant. AA's trademark is only valid in the US. Outside of that, you can they're even more of a joke anyway. So the other reader has nothing else to say anyway.
Does anybody realize that Delta's regional airline callsign was "Flagship" for many years... Why didn't they initiate the lawsuit then?
Delta clearly used the “flagship” terminology on their booking pages. Check the Delta app or website and try and book routes operated by the A350, their “flagship” aircraft. For example, ICN-ATL.
I wonder how many Aadvantage miles the Texas judge in this case has. He’s the same judge who a year ago called Obamacare completely unconstitutional – that decision last week was partially upheld by an appeals court that sent it back to him for further work.
According to the New York Times, “In the 11 years Judge Reed O’Connor has been on the federal bench, he has become a favorite of Republican leaders in...
I wonder how many Aadvantage miles the Texas judge in this case has. He’s the same judge who a year ago called Obamacare completely unconstitutional – that decision last week was partially upheld by an appeals court that sent it back to him for further work.
According to the New York Times, “In the 11 years Judge Reed O’Connor has been on the federal bench, he has become a favorite of Republican leaders in Texas, reliably tossing out Democratic policies they have challenged. The state’s Republican attorney general appears to strategically file key lawsuits in Judge O’Connor’s jurisdiction, the Northern District of Texas, so that he will hear them.. . .Judge O’Connor, who was appointed by former President George W. Bush, has been at the center of some of the most contentious and partisan cases involving federal power and states’ rights, and has sided with conservative leaders in previous challenges to the health law and against efforts to expand transgender rights.
haters gonna hate. love me some Delta.
Hawaiian Airlines has referred to itself (not in official branding I might add) as "Hawaii's flagship airline." Guess they should be waiting for attorneys to come knocking.
This case is as ludicrous as a Chicago restaurant chain trying to trademark the word "Aloha".
When this goes to court, the Delta team should walk into the courtroon wearing red baseball caps that say "Making Flagship Great Again". LMFAO!!!
Having worked for AS for 36 years before retiring (and participating in the initial AS/DL code share). Then later flying for my small business as a DL Medallion, and for the last 5 years as EP on American, I believe this is a deliberate use of the word by DL. Their Leadership is notorious in the industry for little dirty tricks. While I agree this looks like much ado about nothing on AA’s part. I’d...
Having worked for AS for 36 years before retiring (and participating in the initial AS/DL code share). Then later flying for my small business as a DL Medallion, and for the last 5 years as EP on American, I believe this is a deliberate use of the word by DL. Their Leadership is notorious in the industry for little dirty tricks. While I agree this looks like much ado about nothing on AA’s part. I’d argue that the use of “flagship” is a veiled dig at AA because DL has always been that arrogant.
As you said on your first paragraph that you’re not a lawyer so why does your opinion matter?? Who are you people????
Maybe AA should be sued for misusing the word/term flagship because their service is anything but flagship. They should check the dictionary for its meaning because its false advertising on thrir part.
The US Navy needs to sue all of ‘em, because that’s where the term originated. Flag officers (admirals) stationed on a ship....flagship.
Not gonna lie. This clickbait article worked. I clicked. I read. I got annoyed at the “journalism” and then was like why do I care. I’m never going to fly an airline for loyalty if American is cheaper than delta who cares if they treat us like animals. Most Americans are never going to be able to fly for loyalty. I’m just happy if I’m not delayed on any mainline airline.
I had no idea American Airlines used the term "Flagship" at all, much less had a trademark on a very common adjective.
Personally you had to chuckle?
As opposed to someone else chucking?
;)
David:
Your comparison to Carnival and RCCL is great and spot on. I think AA definitely has a case here, and while they will win legally, Delta will obliterate them publicly. Who knows, Delta and how smart they've been, might have just poked AA on purpose. I can see the Twitter wars already, and it doesn't even have to get nasty. With some elegant choice words, Delta will reign.
The more I think about it,...
David:
Your comparison to Carnival and RCCL is great and spot on. I think AA definitely has a case here, and while they will win legally, Delta will obliterate them publicly. Who knows, Delta and how smart they've been, might have just poked AA on purpose. I can see the Twitter wars already, and it doesn't even have to get nasty. With some elegant choice words, Delta will reign.
The more I think about it, Delta definitely knew using flagship on their website was going to stir AA. They are not stupid, but AA has been for too long. They need a change in management asap. No reason they should be such a spectacular mess.
I don't like hate or bashing on any board/blog. It's not so much a grudge, as it is a disdain for American subtlely present in your phrasings when referencing AA. It could very well be just how much they suck lately that is no fault of anyone but AA. However, expectations from you is a helluva higher than anyone who may comment.
Industries are littered with infringement that uses REAL words. That is not...
I don't like hate or bashing on any board/blog. It's not so much a grudge, as it is a disdain for American subtlely present in your phrasings when referencing AA. It could very well be just how much they suck lately that is no fault of anyone but AA. However, expectations from you is a helluva higher than anyone who may comment.
Industries are littered with infringement that uses REAL words. That is not a legal benchmark, ever. American is no direct competitor to any of the examples you name, only in bits and pieces. Delta, by almost any measure/comparison IS. (I'd argue VS too just because JFK/US-LHR is super high profile).
Again, I am no fan of AA, and it doesn't make a difference if you are. Ive noticed Delta's use of flagship, and found it most curious for a while now.
This will swing in favor of AA, if Delta is using flagship TO the consumer. Press releases, descriptors will pass, but anything else that faces consumers (and travel coordinators) will get them in trouble, and rightfully so IMHO.
It is a beautiful word, and I personally associate it with American (and the glory days of flying that existed only in imagination), but only when relating to planes, and in the USA. That's the power of branding, but you know that as an avgeek!
On a different note, and suggestion, to redesign the comment section as more user friendly, allow for replies to comments, and more compact for mobile devices. The design now is frustrating and therefore leads to harsher comments! How's that for a reason?
Opinions on whether it should or should not be accepted in court and some of the comparisons such other companies having a flagship store etc are irrelevant.
Flagship product in the airline industry has been trademarked by AA. Like it or not.
Ben, you are becoming petty and childish In your articles regarding AA.
Ah yes the great industry innovator as the Delta cheerleaders always tell us.
@Nicola: That’s the thing: the enemy of your enemy is not your friend, just an temporary ally of convenience.
I literally LOLed when I read, "American has used the term 'Flagship' as a trademark for their 'premium air service' (LOL)."
Finnair is opening a flagship lounge at Helsinki
Is AA going to sue for exclusive rights to use the words American and airlines ?
Doesn’t Flagship just mean the best service the particular airline can provide? In other words AA and Delta fly 757s and 767s on International Flights but their true flagship is the 77W for AA and A350 for Delta, no?
Has anyone asked American if it sent warning letters to Virgin Atlantic, Lufthansa and British Airways? Has anyone asked those airlines if they replied with promises not to do it again? Does anyone know if similar lawsuits have been filed in the EU and just not noticed in the American legal press? No? I didn't think so.
The difference between blogging and journalism is that bloggers seldom contact both sides for a comment, clarification or rebuttal.
@livinginmsp almost a good answer but totally clueless a out corporations. This was likely an oversight by a mid level person.
@ Chris i hope you don't charge people for thst advice. Totally clueless. Your failure today you are a trademark lawyer means my dingleberries contribute more to tge field than you. Ok so delta "we habe a united focus to get you there on time" is ok?
Please stop arguing you are clueless
American Airlines is doing enough to erode its brand and its Goodwill with passengers all on its own. Delta has had nothing to do with that.
Totally see AAs point ... Valid ....
Lucky ... WE ALL KNOW YOU LOOOOOOOVE DELTA .. when’s the wedding?
Lucky, you have such a beef with aa. Wow. Just fly delta when they start their mini hub and connect in Atlanta. See how often you enjoy your 20+ hour delay, but completed flight.
Even in an article about a lawsuit based on a term American has used in the aviation context for 80 years, you can’t keep your silly snarkiness about aa to the side.
Any objective reviewer could say that the...
Lucky, you have such a beef with aa. Wow. Just fly delta when they start their mini hub and connect in Atlanta. See how often you enjoy your 20+ hour delay, but completed flight.
Even in an article about a lawsuit based on a term American has used in the aviation context for 80 years, you can’t keep your silly snarkiness about aa to the side.
Any objective reviewer could say that the aa hard product is better on every front aside from a plastic door on an old seat and PTVs on ancient aircraft. To say nothing of the inconsistent product with PTVs on their DC fleets.
Delta has the least legroom on every plane comparable to AA in international business, domestic first, domestic economy (delta started 30” pitch, not aa). They’re the only carrier forcing two lavs into the back door of the galley. Delta squeezes the most people on to their wide bodies vs aa and ua even when taking fewer business seats into consideration.
To say nothing of how they’ve completely led the industry in devaluing upgrades and miles.
How on earth do you miss all this and whine about aa while praising delta?
@Robert - I do agree with you fully. "Flagship business" refers to specific product offered by AA and should not be confused with "flagship" products offered by DL. There is "OneWorld" and no one would confuse that with "Delta One". DL should become more creative with branding. What is wrong with calling their lounges, dining, etc. "DELTA ONE"? Somehow UA survives with "Polaris".
A party generally has a significantly higher burden to get protection for a mark that is descriptive, as opposed to one that is arbitrary (like Coke). But merely descriptive marks are enforced under U.S. law.
Basically, to take a descriptive word out of service you have to show a strong identity between your mark and your product or service.
To give an example of a very famous descriptive mark, how about a highly relevant...
A party generally has a significantly higher burden to get protection for a mark that is descriptive, as opposed to one that is arbitrary (like Coke). But merely descriptive marks are enforced under U.S. law.
Basically, to take a descriptive word out of service you have to show a strong identity between your mark and your product or service.
To give an example of a very famous descriptive mark, how about a highly relevant one — American. This is a highly descriptive mark but American would have a very significant argument if a competitor tried to use that mark in connection with provision of airline travel. It would depend on what other words are used with “American.” But American is definitely a protected mark.
My view — “Flagship” has probably acquired secondary meaning in the minds of consumers in connection with certain products and services. American has invested a shitload in the mark. That one thinks Delta offers better products and services at the moment is not really relevant. This is certainly not a meritless case.
One can make an argument that allowing protection for merely descriptive marks in the U.S. should not be allowed because it is anti-competitive. Some people feel this way. If that’s your view and you feel strongly tell your Congress person. Because that is not current trademark law.
As a lawyer who has practiced trademark law for a large, international company, I would say this is a toss-up.
Having reviewed AA's US Service Mark registration (Reg. No. #4897371), they are claiming the mark "FLAGSHIP" for providing goods and services in two classes: 1) "providing premium air transportation services for first class and business class passengers..." and 2) "Providing premium food and beverage services for others; providing food and beverage, catering, and restaurant;...
As a lawyer who has practiced trademark law for a large, international company, I would say this is a toss-up.
Having reviewed AA's US Service Mark registration (Reg. No. #4897371), they are claiming the mark "FLAGSHIP" for providing goods and services in two classes: 1) "providing premium air transportation services for first class and business class passengers..." and 2) "Providing premium food and beverage services for others; providing food and beverage, catering, and restaurant; providing hotel accommodation reservation services for others."
Delta, on the other hand, is using the word "flagship" in their promotional materials and on their booking site to describe their top level aircraft (A350) and lounges (JFK T4, ATL B).
Delta can very reasonably argue that its use of the word "flagship" (in lowercase and as an adjective) fits a dictionary definition and doesn't infringe: "the best or most important thing owned or produced by a particular organization."
On the other hand, AA can very reasonably argue that Delta's use is gratuitous and intended specifically to diminish and more importantly DILUTE AA's registered service mark.
I have little doubt that Delta did this on purpose, and both parties have enough money and ego to fight this one out.
This may not be as frivolous as it seems at first blush, as IPRs of all nature should be protected.
However, AA will have a tough time proving Delta's apparent attempt "to capture additional market share" and trying to erode AA's "brand, goodwill, and value".
Further, AA will also need to validate that this is "likely to cause confusion with the relevant traveling public" as they have claimed.
@ Icarus, Ben, and a few others...
"I forgot to add .. Delta is an American airline." (by Icarus)
True.
So Delta could perfectly use "Delta, the GOOD American airline" as long as they leave "Airline" in the singular and maybe decapitalize the A in "Airline".
Looks to me like a fitting reply to AA's lawsuit.
Ben, under intellectual property law, technically, you aren't supposed to use similar names as your competitors in the same field as it can be perceived that you are intentionally trying to confuse customers, but in this case, flagship is a term that is used across the industry so I don't see how AA would win. Since you live in Miami, you have probably noticed that Carnival has a tendency to steal names from Royal Caribbean....
Ben, under intellectual property law, technically, you aren't supposed to use similar names as your competitors in the same field as it can be perceived that you are intentionally trying to confuse customers, but in this case, flagship is a term that is used across the industry so I don't see how AA would win. Since you live in Miami, you have probably noticed that Carnival has a tendency to steal names from Royal Caribbean. For instance, when Royal Caribbean named some its vessels Freedom, Liberty, and Radiance of the Seas and then Carnival named theirs as Carnival Freedom, Carnival Liberty, and now is even planning to change the name of the existing Carnival Victory to Carnival Radiance after the ship's drydock in 2020. Here, Royal Caribbean could easily argue that since they are a far more premium cruise line, their brand prestige is being compromised by Carnival. However, Royal Caribbean doesn't bother to take action against their untalented competitor because they realize that it just isn't worth it ... knowing that Royal's Marketing department has clearly differentiated them from Carnival.
This is another example of the outright silliness that we get when we allow alcoholics like Doug Parker to run airlines.
If I were Delta's attorneys, I would simply argue: "Your honor, American Airlines did not invent the term "flagship" and they are only suing my client because for starters, my client has consistently outperformed them. Moreover, Delta One offers suites with full doors on designated flagship aircraft while American doesn't even offer closed suites on its Flagship First product. If anything, my client Delta is helping to enhance the term flagship."
When you’ve been named one of the world’s worst long haul airlines, don’t you have bigger fish to fry? Maybe not. That probably explains all you need to know.
But that you for the confirmation of the definition of the word “flagship”, Ben. And thank you for the reconfirmation of the word “Flagship” as a synonym for Ryanair.
@Aaron McLawstudent I didn't say American's use of the term is descriptive (which would be a difficult case to make since American successfully registered its use in several classes, see U.S. Reg. No. 5854303), I said that Delta's *use* is descriptive, which is another way of saying it isn't using it in connection with the sale or advertising of goods or services. Delta uses the word to describe characteristics of its offerings. To be sure,...
@Aaron McLawstudent I didn't say American's use of the term is descriptive (which would be a difficult case to make since American successfully registered its use in several classes, see U.S. Reg. No. 5854303), I said that Delta's *use* is descriptive, which is another way of saying it isn't using it in connection with the sale or advertising of goods or services. Delta uses the word to describe characteristics of its offerings. To be sure, I could imagine various ways Delta might use the term that would cause confusion among consumers, but in my view, what American alleges in its complaint falls short of that standard.
Best of luck on your finals!
I can see AA's point, and understand why they are doing this now. It's about protecting their trademark, not specifically Delta using a word as a one off. It would be like AA trying to say how friendly their skies are - they'd get sued by United in a second. Similarly, if United started calling their business product United One, Delta would throw a fit.
When you’ve been named on of the worst long haul airlines in the world, don’t you think you have bigger fish to fry? Maybe not. That probably explains all you need to know.
But thank you for the confirmation of the definition of the word “flagship”, Ben. And thank you for the reconfirmation of the word “Flagship” as a synonym for Ryanair.
@chris lol at flagship being descriptive. You said you practice IP law not trademark law for a reason.
Clearly infringing. There are 1000 other words to use.
Delta should sue American for using the word ONE...
I don't know anything about law but I did find that Flagship is a trademark held by AA.
There is a database you can search.
http://tmsearch.uspto.gov/bin/showfield?f=doc&state=4802:2n5t0d.2.47
IC 039. US 100 105. G & S: Air transport of passengers; providing premium air transportation services for first class and business class passengers, namely, providing travel reservation services, namely, coordinating travel arrangements for individuals, providing air transportation reservation services, and providing vehicle reservation services; booking and...
I don't know anything about law but I did find that Flagship is a trademark held by AA.
There is a database you can search.
http://tmsearch.uspto.gov/bin/showfield?f=doc&state=4802:2n5t0d.2.47
IC 039. US 100 105. G & S: Air transport of passengers; providing premium air transportation services for first class and business class passengers, namely, providing travel reservation services, namely, coordinating travel arrangements for individuals, providing air transportation reservation services, and providing vehicle reservation services; booking and arranging of access to airport lounges; airport services featuring transit lounge facilities for passenger relaxation and also including shower facilities. FIRST USE: 19360000. FIRST USE IN COMMERCE: 19360000
Owner (REGISTRANT) American Airlines, Inc. CORPORATION DELAWARE 4333 Amon Carter Boulevard Fort Worth TEXAS 76155
We get it Ben. You don’t like American right now. But what would you say if American suddenly called their business class “American One” or “Polaris?” Exactly. Everyone would throw a fit. This is no different.
@ Davis -- You're more than welcome to disagree with me, but there's unarguably a difference between using the term "flagship" the way it's defined in the dictionary, vs. an airline using "One" or "Polaris" in a way that doesn't meet the standard definition. There's context for an airline referring to a new biggest lounge as being the "flagship" lounge (just as retailers have flagship stores), while there's zero context for American saying "we just...
@ Davis -- You're more than welcome to disagree with me, but there's unarguably a difference between using the term "flagship" the way it's defined in the dictionary, vs. an airline using "One" or "Polaris" in a way that doesn't meet the standard definition. There's context for an airline referring to a new biggest lounge as being the "flagship" lounge (just as retailers have flagship stores), while there's zero context for American saying "we just opened our new Polaris Lounge" or "we just opened our new One Lounge." That doesn't make sense.
This is not a serious case but American will get the nod as the case is being handled in Texas. For all we know the judge is concierge key .
On the one hand, yes, flagship is a general accepted term to mean "the latest and greatest". However trademark infringement is specific to industry. For instance there is a Ford Mustang car and a Fender Mustang guitar. Ford doesn't sue Fender because they are building products in different industries. However if Chevy or Gibson came out with a Mustang product, they would be sued. American does call their premium product "Flagship" like United uses "Polaris,"...
On the one hand, yes, flagship is a general accepted term to mean "the latest and greatest". However trademark infringement is specific to industry. For instance there is a Ford Mustang car and a Fender Mustang guitar. Ford doesn't sue Fender because they are building products in different industries. However if Chevy or Gibson came out with a Mustang product, they would be sued. American does call their premium product "Flagship" like United uses "Polaris," and Delta is in the same industry as American, so ultimately American has a good shot of winning, even if they are using flagship in a more general sense.
We are not just talking about a general use of the work flagship in an occasional press release, if you search any flight on Delta's website that is operated by the A350, the tag "FLAGSHIP"comes up in the search results, similarly, if you search on American's website for an premium transcon or overseas flight, the results will be marked "Flagship Business" or "Flagship First" to denote the service. So they have a fairly valid complaint.
Retailers have flaship stores... some brands have their flagship phones, flagship TVs and so on. Will American sue them too? There is a difference between Flagship with a capital F and flagship. Instead of focusing on this they need to focus on their service, soft and hard product...well, everything.
I forgot to add .. Delta is an American airline. Should that be illegal too according to AA , since they believe to have a monopoly on words and descriptions
Flagship is a core product or brand. Therefore AA should sue every one that refers to its premium product or main store as flagship
Eg Tiffany’s flagship store is in manhattan’s 5thAvenue
AA doesn’t have copyright on a word
As Chris commented , they are not using it as a branding
Simply google flagship store
A flagship airline could also be considered the national carrier
Google flagship KLM
...
Flagship is a core product or brand. Therefore AA should sue every one that refers to its premium product or main store as flagship
Eg Tiffany’s flagship store is in manhattan’s 5thAvenue
AA doesn’t have copyright on a word
As Chris commented , they are not using it as a branding
Simply google flagship store
A flagship airline could also be considered the national carrier
Google flagship KLM
KLM is the flagship carrier of the Netherlands
@ Ben even describes the refurbished Crown Lounge as their flagship one
So was quoted , I went in the KLM website as I read the world flagship and was horrified to learn I wasn’t flying American
Therefore Delta has the right to counter sue when AA uses the words sky or one
A frivolous law suit
This lawsuit holds a merit.
If some old lady (intelligent enough to spill on herself) can sue McDonald's for a coffee being hot, and won few millions, yes flagship is a valid lawsuit.
Now if someone would just break an airplane window at 30,000 feet and sue the airline for keeping the cabin too warm. Next thing we know, all window shades would have a warning: Caution do not break the window.
God bless America, land of the #MeToo, home of the Trump.
This lawsuit is hysterical in many level but the one that stands out most is American thinking Delta would or needs to leverage American’s branding to gain market share.
American is giving Delta market share with their inferior service and operations.
Too funny
Thanks Lucky for staying you’re not a lawyer. I am one, been for over 30 years, and I dare say the even legally this is ridiculous.
Not only that, but the courts know that if they accept this suit, it would be swamped by hundreds of similar ones. Like you said, with your limited legal knowledge but ample common sense, there is 0% chance here of confusion or deceit, and hence any litigation is...
Thanks Lucky for staying you’re not a lawyer. I am one, been for over 30 years, and I dare say the even legally this is ridiculous.
Not only that, but the courts know that if they accept this suit, it would be swamped by hundreds of similar ones. Like you said, with your limited legal knowledge but ample common sense, there is 0% chance here of confusion or deceit, and hence any litigation is nothing short of laughable.
That being said, everyone is a winner. American got some headlines (they will ultimately blame the lawyered), the lawyers made some money, and Delta got the upper hand. Bravo.
AA’s flagship court date: a distraction from AA’s flagship poor service virtually everywhere
Ben
I did not actually say you have any tradition of being biased. You did not, thats why I came here to read, and that's why this piece comes very surprising to me, snarky, taking side, all without any legal research first, not very tradition of you.
I get it, AA isn't doing itself many favors with some in flight experiences, and Delta seems to be hitting correct buttons. But look at what Delta started,...
Ben
I did not actually say you have any tradition of being biased. You did not, thats why I came here to read, and that's why this piece comes very surprising to me, snarky, taking side, all without any legal research first, not very tradition of you.
I get it, AA isn't doing itself many favors with some in flight experiences, and Delta seems to be hitting correct buttons. But look at what Delta started, dynamic pricing, massive change (devaluation) to credit card benefits. Behind a charming appearance, delta single handily instigated all the devaluations to loyal customers in the past decade.
I had no choice of my flights. I live at AA hub and fly to work almost weekly to a delta-only small city. I have had enough of shenanigans from each of them long ago. I am now in the "zen-phase", nothing bothers me anymore.
And all this time I thought AA's was product and service was called "Flagshit".
I am a lawyer that practices exactly this type of law -- IP litigation -- and I think you're probably on to something with the comment about Delta using the term in a descriptive context, and in primarily in press releases and the like. I should note that I have not read the underlying filings in this case, and know only what I've read in the article, but based on that, I think there's an...
I am a lawyer that practices exactly this type of law -- IP litigation -- and I think you're probably on to something with the comment about Delta using the term in a descriptive context, and in primarily in press releases and the like. I should note that I have not read the underlying filings in this case, and know only what I've read in the article, but based on that, I think there's an opportunity for Delta to prevail.
As Robert notes above, one of the central features of trademark law is that you can protect the use of a certain words or phrases (among other things) in a specific context -- e.g., the word "Flagship" as it pertains to scheduled commercial air transportation. But that fact alone does not mean that everybody else is precluded from using the term. To find infringement, a court (either a jury, or a judge in the case of a bench trial) must conclude that consumers are likely to be confused by the junior users' use of a particular word or phrase. Here, American will have to demonstrate that consumers might be confused about the source of air services branded as "flagship."
My sense is such confusion is unlikely. Delta isn't using the phrase in its branding, per se, it's using it to describe characteristics of its services, equipment, and such which, as you say above, is entirely consistent with the plain meaning of the word as used in other contexts well beyond aviation.
I doubt many people at American -- or the law firms involved in this matter -- are taking this case too seriously. It strikes me as mostly just corporate saber rattling (or given the context here, should I say "Sabre" rattling :) brought to satisfy some upset marketing execs who want to "send a message." 'll almost certainly settle quietly after this initial pulse of publicity.
It might be stupid, but if AA has trademarked the term they have every right to enforce that. You have laid out Delta’s argument, and a court might agree with you, but it’s not petty to enforce your trademark rights.
I think the word “flagship” is used so loosely about anything and everything particularly in the airline industry...
It's fun to see how the three US big ones are together to fight against the three Gulf ones, but when at home it's open war between them.
Well whatever “flagship” is deemed to mean by the courts...Delta does “flagship” better than AA.
You know American is just a joke of company at this point. Would you have the dignity to stop all posts regarding the promotions of than airline? (AAdvantage cards, miles, redemptions, etc) or is the affiliate revenue too high from those posts?
@ Daniel -- Why would I do my readers that disservice? For what it's worth, the only thing related to American that I get any affiliate revenue from is select Citi AAdvantage Cards -- not Barclays Cards, not the sale of miles, etc., even though I write about those all the time.
If there's one lesson that readers should take away from this blog it's that the airlines you should want to fly are different...
@ Daniel -- Why would I do my readers that disservice? For what it's worth, the only thing related to American that I get any affiliate revenue from is select Citi AAdvantage Cards -- not Barclays Cards, not the sale of miles, etc., even though I write about those all the time.
If there's one lesson that readers should take away from this blog it's that the airlines you should want to fly are different than the airlines you should want to earn miles with. For example, I rave about Qatar Airways' onboard product, but also talk about how terrible their frequent flyer program is. Want to redeem miles for Qatar Airways? You should unarguably be earning American miles, because they're by far the most valuable for that.
So you really want me to stop writing about American's promotions on purchased miles, which I get nothing for, even though I think they in some cases can represent a great value for someone looking to redeem miles on great airlines?
Is the singular word "flagship" a registered trademark of American? I would doubt it, but that's the only dignified way they have standing.
American claims they use Flagship often. They probably also use "airlines" often. Same thing. Doesn't count.
There's no way this sticks.
From my understanding, if company A finds evidence of company B using a phrase or icon they have trademarked, they typically file suit to demonstrate they are still defending that trademark. Otherwise they run the risk of it falling into public domain as they have not effectively defended their trademark. Especially if company C come in using the trademark and using company B's materials as evidence to prove company A is no longer defending their...
From my understanding, if company A finds evidence of company B using a phrase or icon they have trademarked, they typically file suit to demonstrate they are still defending that trademark. Otherwise they run the risk of it falling into public domain as they have not effectively defended their trademark. Especially if company C come in using the trademark and using company B's materials as evidence to prove company A is no longer defending their property.
Or something.
I'm starting a blog called, "One Kilometer at a Time."
Isn't the flagship the one with the admiral, and doesn't American also consider that word a part of its trademark toolkit? They might have an AAdvantage if they started using FlAAgship.
@ Ben -- I happen to think the lawsuit is valid and justified and that AA will win. From the moment that DL started using the term, I thought that it was infringement.
I’m not an attorney but I own patents, copyrights and trademarks. Certain words and phrases are trademarked based upon their specific application. In this case, Flagship is/has been used as a description of their product and/or services as it pertains to aviation. AA quite possibly has standing in this lawsuit.
You are being childish, coming across as either holding a grudge against AA or being a Delta mouth piece. Let the grudge go and let big businesses settle in court themselves.
Truth is being loyal to any of these big airlines are just being stupid on our own part. They don't give a rat a$$ about our loyalty, we can get stuffed next flight we take on them.
@ chris -- "Let big businesses settle in court themselves." I write a blog -- I can assure you I'm just sharing my take on stuff in the industry (as usual), and I have no intent of settling this lawsuit for them. As far as holding a grudge goes, I call out Delta all the time for their corporate antics, like the hypocritical way in which they selectively call out Gulf carriers. So while I...
@ chris -- "Let big businesses settle in court themselves." I write a blog -- I can assure you I'm just sharing my take on stuff in the industry (as usual), and I have no intent of settling this lawsuit for them. As far as holding a grudge goes, I call out Delta all the time for their corporate antics, like the hypocritical way in which they selectively call out Gulf carriers. So while I prefer flying Delta to flying American, I'd call out Delta in a heartbeat if they were filing a similar lawsuit.
They might just as well sue if Delta referred to themselves as an American airline...
Much of the industry has form for this ridiculous approach: my understanding is that easyJet thinks it has an exclusive right to use the word "easy".