American Airlines has sued Delta over its use of the term “flagship” in its brand marketing. I wouldn’t call this a frivolous case, though I am not certain American Airlines can show consumer confusion, a key hurdle for winning its lawsuit.
I want to try to keep this as simple as possible. Let’s start with American’s argument, since it filed the lawsuit, then look at the law, then apply it to this case.
American Airlines Argues Delta Is Infringing Its Flagship Mark
In a federal lawsuit filed in Texas, AA argues that is has used the term “flagship” to describe its premium product since the 1930s, trademarked the term in relation to both soft and hard product onboard, and that Delta’s use of the product impermissibly confuses consumers.
Let’s take a look at the complaint:
Delta is well aware of American’s Flagship Marks. Yet, 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, including its One Suite first class seating and its Premium Select seating. Delta’s use of these terms is confusingly similar to American’s well-established Flagship Marks on its face.
It is true that Delta uses the world “flagship” descriptively to sell its premium products, including its Airbus A350, new business class interiors, and airport lounges. While Delta does not use “flagship” as part of its branding, its use of the term is prominent. Every time you search for a flight on delta.com and see an A350, you’ll find a red “FLAGSHIP” banner:
American Airlines argues this is done to deliberately mislead consumers:
Upon information and belief, Delta is using “flagship,” “Flagship,” and “FLAGSHIP” as marks of its own with the expectation of generating confusion in the marketplace. Delta’s use of these confusing marks is causing irreparable harm to the well-established goodwill and reputation of American and its trademarks.
What The Law Says About “Flagship”
In order to prevail in a trademark dispute, a trademark holder must demonstrate all three points below:
- A valid mark entitled to protection
- Defendant used the same or a similar mark in commerce in connection with the sale or advertising of goods or services without the plaintiff’s consent.
- Defendant’s use of the mark is likely to cause confusion as to the affiliation, connection or association of defendant with plaintiff, or as to the origin, sponsorship, or approval of defendant’s goods, services or commercial activities by plaintiff.
Has American Airlines met the burden here?
Is Delta Guilty Of Trademark Violation?
For years, American has marketed premium-level services as “Flagship” services. These Flagship services provide a quality travel experience that is unmatched in the industry.
“Unmatched” is not necessarily a good thing…
But snark aside, does American Airlines have a case?
First, we know that American Airlines successfully trademarked “flagship” (in 2016) and has been using it continuously since then (and indeed, well before). Second, we know that Delta did not use the term “flagship” in its marketing before 2017. Third, Delta directly competes with the trademarked item in the goods and services provided.
So far, so good for American, but the last element is most important. Does Delta’s use of “flagship” cause or likely cause consumer confusion?
Honestly, I’m not sure. I am not confused. I don’t know any readers or clients who are confused. Frankly, I’m not convinced the average consumer would be confused. I also note that Delta uses the term “flagship” to describe characteristics of it service, not as part of its branding. Flagship is a generic term: I just used it last Saturday in my Park Hyatt New York review.
Think about it: those who don’t fly often won’t know that American uses the term and thus are unlikely to be confused. Those who do fly often may see that both American and Delta are using the term, but are very unlikely to be confused.
I don’t see a clear path forward for American to prevail. If it does, however, I think it will be because Delta primarily uses “flagship” to describe one product: its new business class suites found aboard the A350 and some retrofitted 777-200s. That is AA’s ripest opportunity to prove consumer confusion and demonstrate Delta is not using the term in a generic, dictionary definition sense.
Finally, let me say I am sympathetic to this paragraph in the complaint:
Delta is aware of American’s Flagship brand, the investment American has made in its Flagship interiors, and of the Flagship Marks themselves. Delta considers American to be one of its biggest competitors—if not its biggest competitor. Some of Delta’s chief marketing strategies include persuading consumers to choose Delta over American, and attempting to persuade loyal American customers to switch their loyalty to Delta. On information and belief, competing with American is so central to Delta’s marketing strategies that its infringement of the Flagship Marks must be a tactical, strategic choice.
Delta, who is quick to lie and deceive when its suits it ends, is not stupid. There had to be discussions over whether this term would “trigger” American Airlines. I bet Delta hoped it would confuse consumers but American would not be able to prove it. That’s not just my personal animosity toward Delta coming to the surface (I have none), but just based upon Delta’s past practices.
I don’t view this as a frivolous lawsuit, even if American losses. Sometimes brands (like Kleenex and Xerox) have to go to court to avoid relinquishing their trademarks to a trend of generalizing a protected term. American Airlines may not be able to show consumer confusion, but that should not stop it from trying. After all, American prevailed against Expedia earlier this year in another trademark matter with a fact pattern that has some overlap.
Who has the stronger argument, American or Delta? Are you confused by Delta’s use of the world “flagship” in its branding?