Seattle Trademark Lawyer

On May 20, Bellevue-based Expedia, Inc. and Hotels.com, L.P. filed suit in the Western District against rival travel seller Priceline.com Inc. for false advertising. Plaintiffs claim Priceline.com “makes the unqualified claim that consumers can save ‘half off’ or ‘up to half off’ hotel prices with Priceline compared to Expedia and Hotels.com,” which they allege is false and misleading to consumers.

Plaintiffs assert that Priceline.com offers both a “fixed-price” service in which consumers know the identities of the hotels offered, prices, and availability, as well as a “blind-bidding” service in which consumers do not know the identities of the hotels offered, prices, or availability. Plaintiffs allege Priceline.com’s “blind-bidding” service is the only one that may enable consumers to achieve the advertised savings.

In plaintiffs’ words: “Notwithstanding the material and fundamental differences between Priceline’s ‘fixed-price’ service, and it’s ‘blind-bidding’ service, Priceline deliberately blurs the distinction between its two very different services on its website and in its advertising in order to mislead consumers into believing that they can achieve the advertised savings with any hotel reservation on the Priceline website when in fact the advertised savings are available, if at all, only on Priceline’s ‘blind-bidding’ service. Indeed, because Priceline’s website features both fixed-price and ‘blind-bidding’ services, Priceline’s unqualified price savings claims are false and misleading.”

Priceline.com has not yet answered plaintiffs’ complaint.

Priceline.com’s Web site states: “Priceline’s Name Your Own Price® reservation service is different from fixed-price travel sites like Hotels.com and Expedia.com. With Priceline’s Name Your Own Price® reservation service, the exact hotel is shown only after purchase. Percent savings claim above applies to Name Your Own Price® hotel purchases only and are as compared to the published prices shown on Hotels.com and Expedia.com for the same hotels and the same dates.”

The case cite is Expedia, Inc. v. Priceline.com Inc., No. 09-712 (W.D. Wash.).

As discussed here, Sportsfragrance, Inc., sued The Perfumer’s Workshop International, Ltd., in the Western District for trademark infringement. The crux of the dispute was Sportsfragrance’s allegation that Perfumer’s use of ROCK & ROLL in connection with its perfumes infringes Sportsfragrance’s ROCK ‘N ROLL mark in connection with perfumes.

Perfumer’s (PWI) filed a motion to dismiss for lack of personal jurisdiction. In response, Sportsfragrance argued that Perfumer’s purposefully availed itself to Washington by selling its SAMBA ROCK & ROLL perfumes through Target’s and Perfumania’s online stores that are accessible in Washington and by selling other perfumes through those stores’ physical locations in Washington.

Judge Thomas Zilly found these activities weren’t enough for purposeful availment.

“For purposes of determining personal jurisdiction, the Court finds that PWI placed the allegedly infringing Samba ROCK & ROLL perfume products in the stream of commerce by selling it to Minnesota-based Target and New York-based Quality King Fragrance, Inc. However, even though it may have been foreseeable that these third [party] retailers would, in turn, market and sell the product elsewhere in the country, and perhaps in Washington, foreseeability alone is an insufficient basis for the Court to exercise personal jurisdiction over PWI. It is a defendant’s conduct and the connection with the forum state that are crucial to the personal jurisdiction analysis. Thus, even if the Court accepts as true Sportsfragrance’s uncontroverted allegation that retailers sold the allegedly infringing Samba ROCK & ROLL perfume products in Washington, despite the lack of evidence in support of such an allegation, that fact does not go to PWI’s activities in Washington. Sportsfragrance has failed to make a prima facie showing of purposeful availment as to PWI.”

On May 15 the court dismissed all claims against Perfumer’s and ordered it to file any motion for fees and costs pursuant to Washington’s long-arm statute within ten days.

The case cite is Sportsfragrance, Inc. v. The Perfumer’s Workshop International, Ltd., 2009 WL 1393864, No. 09-177 (W.D. Wash. May 15, 2009) (Zilly, J).

Disclaimer: My firm happily represented Perfumer’s in this case.

Hope everyone had a great Memorial Day weekend. My wife and I spent four days after INTA unwinding (and not blogging) in Washington, D.C.

Speaking of INTA, here are a few final thoughts:

• There’s a lot of information and fun in the INTA Daily News dispatches. You needn’t have attended the annual meeting to make these reads worth checking out, from Sunday, Monday, Tuesday, and Wednesday.
• I was psyched to see IPKat rate my firm’s space (site of “Meet the Bloggers V”) as INTA’s “Coolest Venue.” Here’s what Jeremy Phillips and friends had to say: “[I]t’s almost inconceivable that lawyers work in this lovely location, with its comfortably blazing log fire, the breathtaking views and the amusingly simple death-trap of highly polished pebbles, though rumour has it that those employed at Graham & Dunn are capable of doing so.” Thanks, guys! That’s quite an honor, er, honour.
• Someone at “Meet the Bloggers V” mentioned that I look older in person than I do in my blog photo. Does trademark law really age a person that much? Here’s a current photo showing my older, wiser self.

Back to regular blogging schedule tomorrow!

Photo credit: STL’s better half

Thanks to everyone who came to “Meet the Bloggers V” tonight at Graham & Dunn on Seattle’s beautiful waterfront. I, for one, had a blast! I know I’m missing some folks, but at a minimum we had trademark law bloggers and readers from France, Spain, England, China, Australia, New Zealand, Brazil, Germany, Canada, Finland, Switzerland, South Africa, the Netherlands, and many cities throughout the United States. What a diverse and interesting crowd! Here are some snaps:

Your trademark bloggers (photo by Zack Wright)

 Marty, John, Marco

Tuukka and Gino

See you next year in Boston at “Meet the Bloggers VI”!

What a great idea. I only wish I’d thought of it.

Nicholas Weston (home of the Australian Trade Marks Law Blog) has announced the results of its first-annual “Tattooed Brands” survey of the trademarks most found inked onto Aussies’ flesh. Here are the top 10:

1. Harley-Davidson

2. Nike

3. AFL (Australian Rules) club logos

4. Vegemite

5. VB

6. Disney characters (various)

7. Holden

8. Ford

9. Fox/Alpinestars (motocross)

10. Triple J (radio)

Nicholas Weston’s legal take on this? “Most well known brands and logos are registered trade marks. Use of a registered trade mark as a tattoo is generally not ‘use as a trade mark’ by using the sign in the course of trade for the purposes of s 120 of the Trade Marks Act 1995 (Cth).”

Photo credit: Tattooique.com