Airlines battle over the trademark FLAGSHIP. AMERICAN v. DELTA

A trademark is something that consumers associate with the manufacturer of a product. Traditionally a trademark is thought of as a symbol, word or phrase, but anything that signals to consumers the identity of the manufacturer of a product can be eligible for trademark protection. In the United States trademark rights are derived from the use of the trademark in commerce. A trademark can be registered with the United States Patent and Trademark Office to strengthen the rights associated with the trademark but registration is not necessary for the trademark user to be granted a claim to the trademark.

The first person to use a trademark in commerce is considered the senior user of a trademark. People who subsequently use a trademark are considered junior users. If a junior user uses a trademark in a way that leads to consumer confusion about the identity of the producer of a product that can be considered trademark infringement. The senior user of a trademark can file a lawsuit to stop trademark infringement with a lawsuit and to get monetary damages for trademark infringement which has occurred.

The rights of a trademark owner are subject to certain limitations. One of those limitations is fair use. Trademark fair use comes in two forms, nominative fair use and descriptive fair use. Nominative fair use is when a trademark is used refer to legitimately trademarked products, produced by the trademark owner. Descriptive fair use is when a trademark is used in a ordinary, descriptive manner to describe a product. Descriptive fair use permits use of a trademark to describe products, rather than as a trademark to indicate the source of the products or services. When a word has a descriptive meaning in addition to the secondary meaning as a trademark.

AMERICAN AIRLINES, INC., v. DELTA AIR LINES, INC., 19-cv-01053 (N.D.TX 2019) is a case that will involve descriptive fair use defense. The plaintiff has been using a series of federally registered “Flagship” trademarks which include the trademarks “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. The plaintiff claims that Flagship trademarks serve as unique source identifiers for American’s premium level in-flight services and other travel services.

In mid-2017 the Defendant began using the term “flagship” to refer to certain of its market-specific airplanes. In December 2018 the defendant began referring to the interior treatments of some of its airplanes as flagship products in advertisements. In January, 2019 the defendant opened several new customer lounges at airports which were referred to as “flagship Delta Sky Clubs”.

The plaintiff felt that the defendant’s 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 consumer confusion. The Plaintiff also believes that the Defendant is using the FLAGSHIP trademark on purpose to gain market share. The Plaintiff filed suit against the Defendant in December 2019 to protect its interest in the FLAGSHIP trademark.

The Defendant has not answered the complaint yet, but it easy to predict that the Defendant will claim its actions are a descriptive fair use. The dictionary definition of flagship is “the best or most important thing owned or produced by a particular organization”. The Defendant will claim that it is using the term flagship to describe its best products and not to suggest an association with the Plaintiff’s product. How persuasive the court finds this argument will depend on how well the attorneys for each side present their case.

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