Sharon Urias, Esq.
In May 2016, Delta Air Lines (“Delta”) filed a federal lawsuit, Delta v. Fly Tech LLC et al., against a number of associated travel websites (Triposaver.com, Triptkt.com, Flyairs.com, Webflyts.com, and Easyflightdeals.com) (the “Websites”) with allegations of fraud, unjust enrichment, unfair competition, trademark infringement, and trademark counterfeiting. The airline alleged that the Websites were misrepresenting themselves as Delta representatives and that they defrauded unsuspecting travelers by charging inflated flight cancellation fees and other markups. Delta claimed that the Websites’ scheme was designed to harm Delta’s business reputation and to diminish the value of its trademarks.
According to Delta, the Websites created an elaborate scheme to defraud innocent retail customers who erroneously believed they were making travel arrangements directly with the airline. For example, the Websites prominently appeared in search engine results when consumers searched for Delta’s reservation number, they misappropriated Delta’s protected trademarks on the websites, and they created 1-800 numbers that reached representatives who claimed they were acting on behalf of or in conjunction with Delta. Through the Websites’ misrepresentation of its association with Delta, the airline claims unsuspecting travelers were then subjected to various inflated markups and fees.
As expected, once litigation ensued, there were a number of developments that occurred. An executive at FlyTech said the website ceased all activities alleged in Delta’s complaint, fired sixty (60) travel agents, and made it clear to consumers it was not a representative of Delta – even though Fly Teck claims it never “overcharged.” Tripsavor’s parent company, Explorer Travel Consultants, Inc., filed a motion to dismiss the fraud claim against two of its personal owners arguing that Delta had not met the requirement of showing a special relationship existed between its website and the alleged victims. The fraud claim was dismissed against the two owners personally because there was no evidence they had anything to do with the alleged misrepresentations other than they owned the business, but the court did allow Delta to amend its complaint to cure any deficiencies in its fraud claim against Explorer (the amended complaint added a count for tarnishment of Delta’s famous trademark). Delta ultimately dismissed Webflyts in December 2016 after the website agreed to an injunction barring its representation of association with Delta and the practice of charging customers inflated cancellation fees.
In a recent development, Explorer Travel Consultants entered into a settlement with Delta (which is not an admission of any wrongdoing) which bars it, its owner, and Tripsavor from selling or marketing any Delta products or services and claims of any affiliation with the airline.
There are a few things to take away from this dispute:
As a consumer, it is important to ensure you are at the correct website, i.e. “unofficial” websites have a way of misrepresenting who they are and what they offer, and search engines often place these sites at the top of the first page of a search engine.
Companies like Delta have spent hundreds of millions if not billions of dollars marketing, promoting and advertising to build up goodwill associated with their names and brands, and if you intend to use another company’s name and/or logo on your own website, you may need to obtain permission.
If you create a scheme like the one alleged by Delta, you probably will not get away with it!
If you are a business owner and think your business is being defrauded and/or you have a protected trademark that is being misappropriated, do not hesitate to contact an attorney to discuss your legal options and remedies.
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