UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

Transcription

1 Case 1:17-cv MHC Document 1 Filed 02/09/17 Page 1 of 15 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION DELTA AIR LINES, INC., Plaintiff, v. Civil Action No. JOHN DOES 1-5, Defendants. COMPLAINT FOR INJUNCTION AND DAMAGES Delta Air Lines, Inc. ( Delta or Plaintiff files this Complaint For Injunction And Damages ( Complaint against the below-described John Doe defendants (collectively, Defendants, whose infringement, conspiracy, and wrongful acts, individually and in combination, have caused and continue to cause substantial and irreparable harm to Delta. Delta shows as follows: OVERVIEW OF DEFENDANTS WRONGFUL ACTS This lawsuit arises from the intentional and bad-faith effort of Defendants, through fraud and the unauthorized use of Delta s name and trademarks, to sell airfares and travel services to unsuspecting members of the general public. Defendants accomplished these actions by posing as Delta and operating a web site and call center in which they intentionally deceived customers into believing that they were doing business directly with Delta Air Lines. 1

2 Case 1:17-cv MHC Document 1 Filed 02/09/17 Page 2 of 15 Delta has not authorized any Defendant to use its name or marks in any way. Delta is in no way affiliated with any Defendant. Delta brings this action in an effort to identify the Defendants who are illegally using its trademarks to defraud the public. Jurisdictional Allegations Personal Jurisdiction 1. Delta is a corporation organized and existing under the laws of the State of Delaware, with its principal place of business located at 1030 Delta Boulevard, Atlanta, Georgia Delta has been and is engaged in substantial business activities within this judicial district. 2. John Does 1-5 are persons and entities whose identities are not yet known and whose acts were intended to and did cause harm to Delta here in its home state of Georgia. Each Defendant acted in concert with one or more of the other Defendants herein to produce the indivisible damages Delta describes below. Defendants were at all times aware, and in fact intended, that their acts would cause damage to Delta in Georgia, which is the headquarters, nerve center, and principal base of Delta s worldwide operations. 3. Moreover, as is detailed below, Defendants have purposefully availed themselves of the right to do business in the State of Georgia. The misconduct of 2

3 Case 1:17-cv MHC Document 1 Filed 02/09/17 Page 3 of 15 Defendants has involved substantial and continuous contacts with Georgia. Among other Georgia-related action and conduct, Defendants have intentionally sold Delta airfares to the public, and their infringement of the Delta marks and impersonation of Delta has directly injured Delta in the State of Georgia. 4. Accordingly, Defendants are subject to jurisdiction pursuant to, among other sources, the Georgia Long-Arm Statute (O.C.G.A , the doctrines of general and specific jurisdiction, co-conspirator jurisdiction, and the principles set forth in Calder v. Jones, 465 U.S. 783, 104 S. Ct. 1482, 79 L. Ed. 2d 804 ( Because of the measures taken by Defendants to conceal their true identities, the names and identities of Defendants are not yet known to Delta. Through investigation and discovery in the present matter, Delta will determine the identities of these Defendants and will identify them by amendment to this Complaint. Subject Matter Jurisdiction 6. This Court has subject matter jurisdiction over all claims presented in this Complaint. 7. Specifically, this Court has subject matter jurisdiction over the Federal claims pursuant to 28 U.S.C (federal question jurisdiction; 28 U.S.C. 3

4 Case 1:17-cv MHC Document 1 Filed 02/09/17 Page 4 of (a (original jurisdiction in trademark cases; and 15 U.S.C et seq. (the Lanham Act. 8. Venue is proper in this judicial district. Pursuant to 28 U.S.C. 1391(b and (c, in specific relation to the causes of action set forth herein, Defendants are transacting business and causing harm to Delta in this district. Moreover, a substantial portion of the complained-of acts occurred in this district, and Delta s claims accordingly arose in this district. Finally, venue is also independently proper under the related jurisdictional principles set forth in Calder v. Jones, 465 U.S. 783, 104 S. Ct. 1482, 79 L. Ed. 2d 804 (1984. The Parties Delta 9. Delta is one of the world s largest commercial airlines, generating over $36 billion in annual revenue and offering service to 330 destinations in 65 countries on six continents. Delta serves more than 160 million customers each year. Through Delta s long and successful efforts, its DELTA name and mark, its WIDGET LOGO mark, its SKYMILES mark, and Delta s other registered marks (collectively, the Delta Marks have earned extensive goodwill, favorable recognition, and a worldwide reputation for high-quality products and services. Delta s DELTA, WIDGET LOGO, and SKYMILES marks are famous marks, 4

5 Case 1:17-cv MHC Document 1 Filed 02/09/17 Page 5 of 15 instantly recognizable as sources of goodwill, high reputation, and high-quality goods and services. The John Doe Defendants 10. Defendants are the persons who have created and operated the fraudulent and infringing web site and who have operated and profited from the business operations of that web site. 11. As is detailed below, Defendants acts have had an effect on U.S. commerce by negatively affecting Delta s longstanding and famous reputation. These wrongful acts are directed by Defendants toward Delta and, pursuant to Defendants express intent, cause harm to Delta in its home state of Georgia. Factual Allegations Common to All Counts Delta s Famous Marks 12. Delta offers and sells its goods and services under and in conjunction with, among others, the following DELTA-related trademark and service mark registrations in the United States: 5

6 Case 1:17-cv MHC Document 1 Filed 02/09/17 Page 6 of 15 Reg. No. Mark Registration Date DELTA AIR LINES April 4, DELTA November 19, DELTAMATIC January 18, DELTA AIR LINES (IN OVAL LOGO July 3, DELTA AIR LINES October 9, DELTA CONNECTION February 10, DELTA SHUTTLE July 28, DELTA CENTER November 17, DELTA CENTER (WITH WIDGET LOGO December 15, DELTA & 1960 AIRCRAFT DESIGN May 6, DELTA VACATIONS November 28, DELTA AIRELITE December 17, DELTA CONNECTION August 2, DELTA SKY CLUB December 14, DELTA ASSIST July 12, These registrations, which issued on the Principal Register, are in full force and effect. The majority of these registrations have long since acquired incontestable registration status. Attached as Exhibit A are sample extracts of these registrations from the United States Patent and Trademark Office. 14. Delta offers and sells its goods and services under and in conjunction with, among others, the following WIDGET LOGO-related trademark and service mark registrations in the United States: Reg. No. Mark Registration Date WIDGET LOGO September 6, WIDGET (OPEN December 16, WIDGET LOGO April 2,

7 Case 1:17-cv MHC Document 1 Filed 02/09/17 Page 7 of These registrations, which issued on the Principal Register, are in full force and effect. All of these registrations have acquired incontestable registration status. Attached as Exhibit B are sample extracts of these registrations from the United States Patent and Trademark Office. 16. Delta offers and sells its goods and services under and in conjunction with, among others, the following SKYMILES-related trademark registration in the United States: Reg. No. Mark Registration Date SKYMILES April 16, This registration, which issued on the Principal Register, is in full force and effect. This registration has long since acquired incontestable registration status. Attached as Exhibit C is an extract of this registration from the United States Patent and Trademark Office. 18. The DELTA, WIDGET LOGO, and SKYMILES marks, along with the other Delta Marks, serve as unique and famous source identifiers for Delta and its various goods and services, including air transportation and other travel-related services. 7

8 Case 1:17-cv MHC Document 1 Filed 02/09/17 Page 8 of Delta has invested hundreds of millions of dollars in worldwide advertising and marketing in order to build the fame, reputation, and goodwill of the DELTA, WIDGET LOGO, and SKYMILES marks, both in the United States and worldwide. Delta advertises through a variety of media, including the Internet (on Delta s own web site, as well as the web sites of third parties, television, radio, newspapers, magazines, and direct mail. 20. Through Delta s longstanding use of the DELTA, WIDGET LOGO, and SKYMILES marks and its promotional activities related to the marks, and due to the widespread and favorable public acceptance and recognition of those marks, the DELTA, WIDGET LOGO, and SKYMILES marks have become distinctive designations of the source of origin of Delta s goods and services. 21. The DELTA, WIDGET LOGO, and SKYMILES marks have become uniquely associated with Delta and its high quality goods and services. 22. The DELTA, WIDGET LOGO, and SKYMILES marks are assets of incalculable value as symbols of Delta, its high-quality goods and services, and its goodwill. 8

9 Case 1:17-cv MHC Document 1 Filed 02/09/17 Page 9 of By reason of Delta s extensive promotion and sale of its highly-regarded goods and services, the DELTA, WIDGET LOGO, and SKYMILES marks have acquired valuable goodwill, recognition, and renown. The public has come to recognize these marks as signifying Delta. 24. By virtue of their extensive use and promotion over the years, the DELTA, WIDGET LOGO, and SKYMILES marks have developed valuable distinctiveness and secondary meaning in the marketplace. The marks have attained a significant and lasting presence in the marketplace, causing the marks to achieve high recognition and value among consumers. 25. Other than Delta and its authorized affiliates, licensees, and partners, no one is permitted to use the DELTA, WIDGET LOGO, and SKYMILES marks or any other Delta Mark for commercial gain. 26. Defendants are not authorized to use the DELTA mark, the WIDGET LOGO mark, the SKYMILES mark, or any other Delta Mark. Defendants Use of the Delta Marks 27. Defendants operate a web site at the URL (the Web Site which makes extensive 9

10 Case 1:17-cv MHC Document 1 Filed 02/09/17 Page 10 of 15 unauthorized use of the Delta name and marks, and purports to be the official web site of and endorsed by Delta. 28. A true and correct copy of the home page of the Web Site is attached hereto as Exhibit D. 29. The Web Site makes extensive use of, inter alia, the DELTA, DELTA AIR LINES, and WIDGET LOGO marks. 30. In addition to its use of an infringing domain name and the extensive use of the Delta name and marks on the Web Site, Defendants answer incoming calls to the Web Site s toll-free telephone number by informing the caller that they have actually contacted Delta. COUNT I TRADEMARK INFRINGEMENT (PURSUANT TO 15 U.S.C Delta realleges and incorporates into this count by reference the allegations contained in paragraphs 1 through 30 above as if those allegations were again set forth in full. 32. Defendants unauthorized use in commerce of the DELTA, DELTA AIR LINES, and WIDGET LOGO marks on the Web Site is likely (and intended to 10

11 Case 1:17-cv MHC Document 1 Filed 02/09/17 Page 11 of 15 result in confusion, deception, and/or mistake by the recipients and other members of the general public. 33. Defendants unauthorized use in commerce of the DELTA, DELTA AIR LINES, and WIDGET LOGO marks has caused actual confusion by users of the Web Site, persons who called the Web Site s toll-free telephone number, and other members of the general public. 34. Defendants have used and are continuing to use the DELTA, DELTA AIR LINES, and WIDGET LOGO marks with full knowledge of Delta s prior and extensive rights in those marks and other Delta Marks, and with a bad-faith intent and purpose to trade upon the goodwill of Delta s DELTA, DELTA AIR LINES, and WIDGET LOGO marks. 35. Defendants infringement is willful and deliberate. 36. Defendants unauthorized use in commerce of the DELTA, DELTA AIR LINES, and WIDGET LOGO marks constitutes an infringement of Delta s registered trademarks pursuant to 15 U.S.C et seq. 37. As a result of Defendants acts, Delta has suffered and continues to suffer and incur irreparable injury, loss of reputation, and pecuniary damages to be 11

12 Case 1:17-cv MHC Document 1 Filed 02/09/17 Page 12 of 15 proved at trial. Unless further enjoined by this Court, Defendants will continue these acts, thereby causing Delta further immediate and irreparable damage. WHEREFORE, Plaintiff Delta prays for judgment against Defendants John Does 1-5 that includes: 1. Permanently enjoining Defendants, and those acting in concert or participation with them, from continuing to make any written, electronic, or verbal use of Delta s name or any of the Delta Marks; 2. Damages pursuant to the Lanham Act, 15 U.S.C. 1117, including, but not limited to, Defendants profits and actual damages or, alternatively, statutory damages; 3. Costs of litigation; 4. Attorney fees pursuant to 15 U.S.C. 1117(a; and 5. Such other and further relief as this Court deems proper. Respectfully submitted this 9 th day of February, WELLBORN & WALLACE, LLC /s/ Kelly O. Wallace Kelly O. Wallace Georgia Bar No Paul F. Wellborn III Georgia Bar No Attorneys for Plaintiff Delta Air Lines, Inc Peachtree St., NE 100 Colony Square, Suite 300 Atlanta, Georgia

13 Case 1:17-cv MHC Document 1 Filed 02/09/17 Page 13 of 15 Phone: ( Fax: ( kelly@wellbornlaw.com pete@wellbornlaw.com 13

14 Case 1:17-cv MHC Document 1 Filed 02/09/17 Page 14 of 15 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION DELTA AIR LINES, INC., Plaintiff, v. Civil Action No. JOHN DOES 1-5, Defendants. RULE 7.1 CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 5.1 This certifies that the foregoing Complaint was prepared using 14 point Times New Roman font and accordingly complies with Local Rule 5.1. This certificate is given in compliance with Local Rule 7.1(D. This 9 th day of February, WELLBORN & WALLACE, LLC /s/ Kelly O. Wallace Kelly O. Wallace Georgia Bar No Paul F. Wellborn III Georgia Bar No Attorneys for Plaintiff Delta Air Lines, Inc Peachtree St., NE 100 Colony Square, Suite 300 Atlanta, Georgia Phone: ( Fax: (

15 Case 1:17-cv MHC Document 1 Filed 02/09/17 Page 15 of 15 kelly@wellbornlaw.com pete@wellbornlaw.com 15