BEFORE THE 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF THE SECRETARY 

WASHINGTON, D.C. 

Application of 

BLUE JET SP. Z O.O. 

For a foreign air carrier permit pursuant to 

49 U.S.C. § 41301 and exemption authority 

pursuant to 49 U.S.C. § 40109 

(U.S.-Europe) 

Docket DOT-OST-2014-0026 

 

CONSOLIDATED REPLY OF BLUE JET SP. Z O.O. 

TO JETBLUE AIRWAYS CORPORATION

Communications with respect to this document should be sent to: 

 Gary B. Garofalo 

Erin M. Tallardy 

Jason E. Maddux 

Garofalo Goerlich Hainbach PC 

1200 New Hampshire Avenue NW 

Suite 590 

Washington, D.C. 20036 

Phone 202-776-3970 

Fax 202-776-3975 

ggarofalo@ggh-airlaw.com 

etallardy@ggh-airlaw.com 

jmaddux@ggh-airlaw.com 

Counsel for Blue Jet Sp. z o.o. 

March 20, 2014 
BEFORE THE 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF THE SECRETARY 

WASHINGTON, D.C. 

Application of 

BLUE JET SP. Z O.O. 

For a foreign air carrier permit pursuant to 

49 U.S.C. § 41301 and exemption authority 

pursuant to 49 U.S.C. § 40109 

(U.S.-Europe) 

Docket DOT-OST-2014-0026 

 

CONSOLIDATED REPLY OF BLUE JET SP. Z O.O. 

TO JETBLUE AIRWAYS CORPORATION 

 Blue Jet Sp. z o.o. (“Blue Jet”) hereby submits a consolidated reply to the answers filed 

by JetBlue Airways Corporation (“JetBlue”) in this docket on February 27, 2014,1 March 11, 

2014,2 and March 17, 2014.3 As more fully set forth below, JetBlue’s request for the Department 

to deny or suspend Blue Jet’s application based on alleged name similarity should be denied 

because (1) JetBlue already has resorted to private litigation in accordance with current 

Department policy, and (2) there is no significant potential for, or actual, public confusion.

 

1

 Letter from Toby Butterfield to Assistant Secretary Susan Kurland (Feb. 27, 2014) (hereinafter “First JetBlue 

Answer”). 

2

 Answer of JetBlue Airways Corporation in Opposition to Application of Blue Jet Sp. z o.o. for an Exemption (Mar. 

11, 2014) (hereinafter “Second JetBlue Answer”). 

3

 Answer of JetBlue Airways Corporation in Opposition to Application of Blue Jet Sp. z o.o. for a Foreign Air 

Carrier Permit (Mar. 17, 2014) (hereinafter “Third JetBlue Answer”).
2

I. Part 215 Directs Air Carriers to the Courts to Resolve Trade Name Disputes. 

JetBlue’s position takes the industry back to the days before airline deregulation. All but 

one of the “multitude of cases”4 cited by JetBlue where “the Department has not hesitated to 

protect consumers from confusion when the circumstances warrant it”5

 were decided by the Civil 

Aeronautics Board (CAB) prior to its sunset in 1985. More significantly, in 1988, the 

Department substantially modified Part 215 of the Aviation Economic Regulations upon which 

the CAB had decided those cases,6 a development JetBlue’s answers ignore. In the Part 215 

NPRM, the Department found: 

The present rules are duplicative of existing legal protections and 

inconsistent with the deregulation of the airline industry. They do not 

encourage air carriers to resolve potential problems among themselves as 

do other unregulated businesses. In addition, they impose an undue 

burden on the industry; competitors are citing the use of arguably similar 

names as reasons to object to new applicants, thereby unnecessarily 

complicating and delaying the certification process. This serves to impede 

new entry because of the time and cost to an applicant of having to 

respond to such objections, which do not relate to the applicant's ability to 

operate.7

In essence, prior to deregulation, carriers were trying “to convert licensing proceedings into 

enforcement cases or to use those proceedings in lieu of lawsuits in the civil courts.”8

 The 

 

4

 Second JetBlue Answer at 15. 

5

 Second JetBlue Answer at 5. 

6 See 53 Fed.Reg. 17921 (May 19, 1988) (hereinafter “Part 215 Final Rule”) (finalizing significant changes to Part 

215); see also 52 Fed.Reg. 5547 (Feb. 25, 1987) (hereinafter “Part 215 NPRM”) (proposing significant changes to 

Part 215). 

7

 52 Fed.Reg. at 5547. 

8

 53 Fed.Reg. at 17922. 
3

Department’s goal in revising Part 215 was to “stop this use of an inappropriate forum”9

 and 

“encourage[] carriers to resolve potential problems in the use of names among themselves 

without unnecessary government intervention...”10

As a result, the Department amended Part 215 to “reflect the changes that have occurred 

in the aviation industry concerning this issue since deregulation”11 by “deleting those portions 

that set detailed rules and standards for applications by carriers to change or use names different 

from those on their operating authorizations and ... replac[ing] the detailed rules with a less 

complex and burdensome name registration system.”12 

In an analogous post-1988 case, Worldwide Airlines Services, Inc., a certificated U.S. air 

carrier, objected to Leisure International Airways Limited’s application for a foreign air carrier 

permit on the grounds that Worldwide already had registered the trade name Leisure 

International Airlines.13 Worldwide conducted domestic passenger charter operations utilizing 

large aircraft. Leisure International Airways, a U.K. air carrier, proposed to operate charter 

foreign air transportation of passengers between the United Kingdom and the United States. 

When granting Leisure International Airways’ application, the Department reiterated its policy, 

which remains in effect today: “pursuant to 14 CFR Part 215, as amended, we no longer make 

public interest determinations regarding name similarity. Responsibility for resolving name 

 

9

 53 Fed.Reg. at 17922. 

10 53 Fed.Reg. at 17921. 

11 53 Fed.Reg. at 17922. 

12 53 Fed.Reg. at 17921. 

13 Leisure International Airways Ltd., Order 1993-11-32 (Oct. 12, 1993) at 10. 
4

disputes rests with the affected air carriers through recourse to trade name statutes and the 

courts.”14 

JetBlue’s answers are a blatant attempt to return to the past, regulatory-wise, by 

converting this licensing proceeding into a trademark matter in direct contravention of the 

Department’s stated goals in revising Part 215. As JetBlue acknowledges,15 section 215.2 of the 

Aviation Economic Regulations states that Part 215’s “purpose is to place the responsibility for 

resolving private disputes about the use of similar names with the air carriers involved, through 

recourse to the trade names statutes and the courts.” That should be the end of the inquiry. 

Indeed, in every Part 215 case since 1988 involving a U.S. air carrier and a foreign air carrier, the 

Department has stated “the responsibility for resolution of name disputes rests with the affected 

carriers through recourse to trade name statutes and the civil courts.”16 

JetBlue is well aware of the Department’s policy as it already has instituted trademark 

litigation in the U.S. courts.17 By availing itself of the judicial process, JetBlue acknowledges 

that the Department is not the appropriate forum to litigate this matter as the Department 

expressly recognizes in Part 215. The Department should continue to follow its Part 215 policy 

by dismissing JetBlue’s objections and granting Blue Jet’s application. 

 

14 Leisure International Airways Ltd., Order 1993-11-32 (Oct. 12, 1993) at 10. 

15 See Second JetBlue Answer at 15 (quoting section 215.2). 

16 Jet Airways (India) Ltd. Order 2006-11-9 (Nov. 14, 2006) at 4; see also Altasjet Uluslararasi Havacilik A.S., 

Notice of Action Taken in Docket DOT-OST-2003-15450 (Sep. 8, 2003) at 1; Challenge Air Luftverkehrs, Notice of 

Action Taken in Docket DOT-OST-2001-11057 (Mar. 29, 2002) at 2; Sportsflight Airways, Inc., Order 1995-10-17 

(Oct. 10, 1995) at 2; Leisure International Airways Ltd., Order 1993-11-32 (Oct. 12, 1993) at 10; and Points of Call 

Airlines, Ltd., Order 1988-7-18 (Jul. 12, 1988) at 3. 

17 See Complaint for Declaratory Judgment included with the First JetBlue Answer.
5

II. The Registration of Blue Jet’s Trade Name Will Not Result in a Significant 

Potential for, or Actual, Public Confusion. 

Aside from attempting to frustrate the Department’s well-established Part 215 policy, 

JetBlue goes on to conjure up public confusion resulting from Blue Jet’s service to and from the 

United States. Since 1988, the Department only intervenes in trade name registration matters 

when there is “evidence of a significant potential for, or of actual, public confusion.”18 The 

registration of the name “Blue Jet Sp. z o.o.” in the present proceeding will not result, and as 

shown below, has not resulted, in any public confusion with JetBlue. 

In Order 1994-8-45, the Department decided an analogous case in favor of the applicant. 

There, Jet USA Airlines, Inc. objected to the applicant’s use of the trade name USA Jet Airlines, 

Inc.19 Despite any similarity between the names, the Department ruled it “w[ould] not deny the 

applicant the use of the corporate name “USA Jet”, nor will we restrict its use of this name to 

only certain operations.”20 The result should be no different here. 

In a long line of cases, the Department has found no evidence of a significant potential 

for, or actual, public confusion when there is significant difference in operations in both 

geographic area of operations and type of operations.21 Tellingly, only on two occasions since 

 

18 14 CFR § 212.2 (2014). 

19 USAir, Inc. also filed an objection regarding the trade name issue. 

20 USA Jet Airlines, Inc., Order 1994-8-45 (Aug. 25, 1994) at 3. 

21 Id.; see also Rhoades Aviation, Inc. d/b/a Transair, Order 2013-1-13 (Jan. 22, 2013) (finding little potential for the 

use of the same trade name to cause public confusion by Trans Executive Airlines of Hawaii, Inc. d/b/a Transair, an 

on-demand air carrier operating small aircraft, and the applicant, an operator of large aircraft in an all-cargo 

configuration); Schuman Aviation Company Ltd. d/b/a Pacific Air Express, Order 2010-8-1 (Aug. 6, 2010) (finding 

no likelihood of public confusion resulting from Pacific Wings, LLC d/b/a Pacific Wings Airlines d/b/a PW 

Express, an intra-Hawaii scheduled and charter operator of 9-seat aircraft, and the applicant, which planned to use 

the “Pacific Wings Airlines” trade name only in connection with intra-Hawaii all-cargo operations); Arctic 

Transportation Services, Inc., Order 2010-2-11 (Feb. 12, 2010) (failing to find any consumer harm from the 

applicant changing its corporate name to “Ryan Air, Inc.” despite the existence of two similarly named air carriers, 

Ryan Air International, Inc. and Ryan Air, Ltd.); Partner Aviation Enterprises d/b/a Empire Airways, Order 
6

revising Part 215 has the Department exercised its authority to prohibit the registration of a trade 

name. JetBlue cited one of those cases,22 Order 2006-6-36, which is readily distinguishable. 

Order 2006-6-36 involved the Department revoking registration of the trade name “Nantucket 

 2006-8-21 (Aug. 22, 2006) (finding no evidence in the record that supports Empire Airlines’ position that public 

confusion will result because of name similarity); Tradewind Aviation, LLC, Order 2006-5-10 (May 12, 2006) 

(finding that Tradewind Aviation’s proposed commuter operations, using 9-seat aircraft operated under 14 CFR Part 

135, among seasonal destinations in the Caribbean and the Northeast coast of the United States, are significantly 

different than those of Tradewinds Airlines’ operations in both geographical area of operations and type of 

operations); Omega Air Holdings, LLC d/b/a Focus Air, Order 2004-10-6 (Oct. 14, 2004) (finding no likelihood of 

significant consumer harm between Omega Air, Inc., a commercial aircraft leasing company, and the applicant, a 

charter all-cargo carrier utilizing large aircraft); Freedom Airlines, Inc. d/b/a America West Express, Order 2002-4-3 

(Apr. 3, 2002) (finding no consumer harm with the use of Aviation Services, Ltd. d/b/a Freedom Air, a Guam-based 

turboprop operator, and the applicant, a continental U.S. operator of regional jets); Ameristar Air Cargo, Inc., Order 

2000-1-27 (Jan. 28, 2000) (finding no consumer harm in registering the trade name “Ameristar” over the objections 

of Amerijet International, Inc.); Sun Jet International, Order 1999-2-3 (Feb. 2, 1999) (registering the trade name 

“Southeast Airlines” even though “Southeast Aviation” was a registered trade name already); Navcom Aviation, 

Inc., Paradise Airways, Inc., and Ultrair, Inc., Order 1995-2-31 (finding no consumer harm because significant 

differences existed in both the type of operations Paradise Islands Airlines offered to the traveling public (small 

aircraft commuter operations) and in the geographic areas served (Florida-Bahamas) compared to Paradise Airways, 

which proposed to operate large jets between Washington, DC and New York); Capitol Air, Inc., Order 1994-10-32 

(Oct. 25, 1994) (finding that Capitol Air’s and Capitol Air Express’ names were not identical, nor were their 

geographic areas of operation); Viking International Airlines, Inc. d/b/a Eagle Airlines, Order 1994-7-34 

(Jul. 26, 1994) (denying Executive Airlines, Inc. d/b/a American Eagle’s request to prohibit the applicant from 

holding out operations in the Caribbean); Jet USA Airlines, Inc., Order 1994-6-19 (Jun. 10, 1994) (finding an 

absence of substantive evidence of public confusion or the likelihood of future consumer harm); Grand Airways, 

Inc., Order 1994-2-12 (Feb. 3, 1994) (finding that no public confusion will result between the applicant’s name and 

MGM Grand Air, Inc.); AirTrain Corporation, Order 1994-1-3 (Jan. 6, 1994) (refusing to require AirTrain to change 

its name as a condition for approval of its application); Northwest Seaplanes, Inc., Order 1993-8-19 (Aug. 12, 1993) 

(denying Northwest Airlines, Inc.’s trade name objection noting that the applicant has used the name for many years 

and there was no evidence of consumer confusion); Capitol Air Express, Inc., Order 1993-1-4 (Jan. 7, 1993) 

(denying Capital Airlines, Inc.’s request to not issue the applicant a certificate); Dash Airlines, Inc. d/b/a Eclipse 

Airlines, order 1992-11-50 (Nov. 27, 1992) (stating the new Part 215 policy while noting the issues now was moot 

in this case); Kiwi International Air Lines, Inc., Order 1992-7-25 (Jul. 21 1992) (noting amended Part 215 and 

denying Key Airlines, Inc.’s request to require the applicant to change its trade name); Emerald Air, Inc. d/b/a 

Emerald Airlines, Order 1991-7-44 (Jul. 30, 1991) (noting that the petitioner made no allegation that the applicant 

engaged in unfair and deceptive behavior); Alaska Island Air, Inc., Alaska Juneau Aeronautics, Inc. d/b/a Wings of 

Alaska, Markair, Inc., Order 1990-12-36 (Dec. 14, 1990) (removing a prior prohibition Markair from using “Alaska” 

in any trade name because, since the 1988 revisions to Part 215, such a condition was no longer appropriate); 

Complaint of American International Group, Inc. against American International Airways, Inc. and Connie Kalitta 

Services, Inc., Order 1989-12-38 (Dec. 21, 1989) (dismissing the complaint because AIG failed to show that 

registration of the trade name “American International” had resulted, or was significantly likely to result, in actual 

consumer harm); Gulf Air Company, Order 1988-6-3 (Jun. 2, 1988) (refusing to address a name similarity issue 

because of the soon to be effective amendments to Part 215). 

22 The other case involved Caribbean Airlines Limited (CAL) registering the “Air Jamaica” trade name as part of 

CAL’s assumption of Air Jamaica’s routes. See Notice of Action Taken in Docket DOT-OST-2010-0232 

(Jun. 20, 2011) (finding CAL’s use of the “Air Jamaica” trade name could cause significant public confusion as 

consumers may believe the services were operated still by the old Air Jamaica). This case is inapposite to the 

current proceeding, which does not involve the use of a trade name by a successor air carrier. 
7

Airlines” to Hyannis Air Service, Inc., a commuter air carrier, because Horizon Air Charter, Inc., 

an air taxi operator, already registered the trade name “Nantucket Shuttle.” The Department 

found “it is likely that there will be significant public confusion”23 for several reasons and, 

therefore, decided to exercise its authority under Part 215. First, the two carriers intended to use 

the exact same name in their operations.24 Second, both carriers intended to operate in the same 

geographic region.25 Third, both carriers had been serving, and intended to continue to serve, the 

same markets.26 Lastly, the two carriers operated similar small aircraft equipment.27 In contrast, 

and as discussed more fully below, the parties here are not using the same name, there is minimal 

overlap in their geographic area of operations, they serve completely different market segments, 

and they operate completely different types of aircraft. 

A. There is Little Overlap in Geographic Areas of Operation. 

Unlike in Order 2006-6-36, in addition to the difference in names, it would be difficult to 

confuse the two air carriers here as their operations are vastly different in terms of geographic 

area, type of operations, and types of passengers served. JetBlue states it “is the premiere lowcost, high-quality domestic airline in the United States and currently serves more than seventy 

destinations in the United States, Mexico, Caribbean and South America.”28 JetBlue also states 

it places its code on other carriers’ flights to foreign points29 and asserts consumers can purchase 

 

23 Hyannis Air Service, Inc., Order 2006-5-10 (Jun. 28, 2006) at 3. 

24 Id. at 2. 

25 Id.

26 Id.

27 Id. at 2-3. 

28 First JetBlue Answer at 1; see also Second JetBlue Answer at 10-12. 

29 First JetBlue Answer at 1; see also Second JetBlue Answer at 10-11. 
8

“transportation from the United States to all regions of the world” utilizing its website.30 

Regardless of how it portrays the geographic extent of its service, the mainstay of JetBlue’s 

operations is regularly scheduled domestic (U.S.) passenger operations. 

In contrast, Blue Jet Sp. z o.o., a Polish air carrier, operates on-demand, single entity 

charters primarily serving Europe. It goes without saying that, in accordance with the exemption 

and permit for which it has applied, Blue Jet cannot, and will not, engage in domestic (U.S.) 

operations. Thus, there is minimal geographic overlap. 

In the United States, Blue Jet’s operations will utilize primarily smaller airports catering 

to business jets as opposed to JetBlue, which must utilize larger airports capable of 

accommodating large aircraft. While JetBlue’s website facilitates the purchase of transportation 

arguably to all regions of the world, for the most part, that ability is only via interline agreements 

with other carriers, meaning such service is not even held out in JetBlue’s name to the traveling 

public. Indeed, to purchase such transportation, JetBlue’s website directs customers to the 

websites of other air carriers entirely.31 Also, though JetBlue claims that its codeshare partners 

display JetBlue’s code on flights between the United States and Europe,32 the only authority 

granted by the Department in that regard is for JetBlue to place its code on Emirates flights 

between Milan and New York.33 This is hardly the geographic overlap claimed by JetBlue as 

giving rise to public confusion. Not only is there de minimis geographic overlap, but even that 

 

30 Second JetBlue Answer at 10-11. 

31 See http://www.jetblue.com/airline-partners/. 

32 See Second JetBlue Answer at 11. 

33 See Joint Application of JetBlue Airways Corporation and Emirates for a Blanket Statement of Authorization 

(May, 14, 2013) and Notice of Action Taken in Docket DOT-OST-2013-0103 (Jul. 24, 2013). 
9

negligible overlap cannot be viewed in a vacuum. Instead, it must be viewed in relation to the 

type of operations and passengers served, where again there is no real overlap. 

B. There is no Meaningful Overlap in Type of Operations or Types of 

Passengers Served. 

JetBlue operates regularly scheduled service utilizing large aircraft, specifically, Airbus 

A321s, Airbus A320s, and EMBRAER ERJ-190s, the smallest of which has a standard seating 

configuration of 100 seats.34 Also, as a U.S. low-cost carrier, JetBlue’s passengers are primarily 

U.S.-originating and more cost conscious and therefore comprise the low-cost segment of the 

marketplace. 

By contrast, Blue Jet utilizes small business jet aircraft, specifically the Bombardier 

Global 5000, Bombardier Challenger 300, Embraer Legacy 600, and Citation Sovereign. The 

largest of these aircraft, the Global 5000, has a seating capacity of only 14 passengers. Blue Jet’s 

flights operate exclusively to Fixed Based Operators while JetBlue flights operate to airline 

terminals. With different equipment serving primarily different airport destinations, there is little 

likelihood that any JetBlue commercial passenger would ever even see a Blue Jet business 

aircraft let alone be confused by it. 

There is also little to no overlap in the relevant consumers at issue. Blue Jet caters to 

high net worth travellers, primarily from Europe. Blue Jet’s clients are sophisticated individuals 

and companies that routinely travel on, and have the needs and means to, charter business jet 

aircraft. 

 

34 See Second JetBlue Answer at 12. 
10

JetBlue’s statement that “the Blue Jet name leads to immediate confusion in the primary 

medium used by consumers for shopping for air travel – the Internet”35 simply shows JetBlue’s 

lack of understanding of how the business jet on-demand marketplace functions. Blue Jet’s 

clients are not surfing the Internet looking for flights. Rather, they work with charter brokers, 

who act as intermediaries, and often are not aware of the charter carrier on which they will fly 

until further on in the chartering process. Most of Blue Jet’s clients even prefer that no carrier 

name be displayed on the aircraft they charter to give the impression that they are traveling on 

their own private jet. Accordingly, except for both operating passenger service, there is no 

meaningful overlap between the two carriers’ respective types of operations or passengers 

served. 

III. Any Perceived Similarities in Aircraft Color Scheme are Inaccurate and 

Irrelevant. 

JetBlue next asserts, “[d]espite the difference in equipment currently used by Blue Jet and 

JetBlue, the color scheme of Blue Jet’s aircraft will lead to public confusion.”36 As an initial 

matter, whether the two carriers’ liveries are similar is a matter for the appropriate judicial 

forums to decide applying applicable trademark law, not a matter for the Department. However, 

JetBlue’s assertion is absurd nonetheless. First, of the six business jet aircraft Blue Jet intends to 

utilize for on-demand charters to and from the United States, only one, the Global 5000 pictured 

in the Second JetBlue Response, has a color scheme that includes a fuselage with any blue on it; 

and this color scheme was in place when Blue Jet acquired the aircraft. Blue Jet’s other aircraft 

bear completely different color schemes, such as white with red and gold stripes. 

 

35 Second JetBlue Answer at 3. 

36 Second JetBlue Answer at 12. 
11

Second, if having a livery consisting of a fuselage with a white top and a blue bottom and 

a blue tail meant consumers would be unable to distinguish between two air carriers, then 

JetBlue has a larger problem because that is the predominant livery of US Airways.37 

Figure 1: US Airways Aircraft38

Clearly, JetBlue has no exclusive rights to the ornamental use of white and blue on an aircraft. 

The rhetorical claim that “the use of the Blue Jet name is a transparent attempt by Blue 

Jet to derive benefit from JetBlue’s considerable investments in its high-quality, consumerfriendly service and brand”39 lacks any support. The fairly descriptive name Blue Jet was 

created in 2008 for use in Europe, Africa, and Asia, where, as discussed above, JetBlue does not 

 

37 See http://www.usairways.com/en-US/aboutus/pressroom/photos.html (containing US Airways aircraft photos). 

38 http://www.usairways.com/en-US/resources/images/aboutus/pressroom/US_Airways_767-200.jpg 

39 Third JetBlue Answer at 3. 
12

do business under its own name. Since Blue Jet is a high-end executive charter operator, it 

would not have benefited at all from any similarity with the name of a regularly scheduled lowcost airline in the United States. In fact, any confusion between the names would only serve to 

harm Blue Jet’s image and business. In short, JetBlue should not be heard to claim bad faith 

adoption when there is no evidence of such. 

IV. There is No Evidence of Actual Public Harm or Confusion. 

 Undoubtedly, JetBlue scoured its internal customer records, as well as the Internet, to 

find evidence of actual public harm or confusion, and all it was able to find was one child’s 

drawing as supposedly compelling evidence of actual public confusion.40 First, children are not 

the relevant consumers here as they are not purchasing tickets and making travel decisions. 

Second, a single instance of alleged actual confusion is a de minimis amount of evidence given 

that Blue Jet has been operating in the United States for several years. See Savin Corporation v. 

The Savin Group, 391 F.3d 439 (2d Cir. 2004).

Indeed, Blue Jet long ago initiated service to the United States. Blue Jet has been 

operating charters to and from the United States since 2010 pursuant to a Department-issued 

Part 375 Special Authorization. After over four years of operations to the United States, Blue Jet 

is unaware of any evidence of public harm or confusion, and it has not received any consumer 

complaints, either directly or through the Department, regarding its operating name. 

The claim that “the initiation of service by Blue Jet will cause immediate confusion to the 

public and harm to JetBlue...”41 is simply untrue because it has not already happened since 

 

40 See Second JetBlue Answer at 8-9. 

41 Second JetBlue Answer at 15.