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 

 

ANSWER OF BLUE JET SP. Z O.O. IN OPPOSITION TO MOTION FOR LEAVE TO 

FILE UNAUTHORIZED PLEADING AND SUR-REPLY OF 

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. 

April 14, 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 

 

ANSWER OF BLUE JET SP. Z O.O. IN OPPOSITION TO MOTION FOR LEAVE TO 

FILE UNAUTHORIZED PLEADING AND SUR-REPLY OF 

JETBLUE AIRWAYS CORPORATION 

 Blue Jet Sp. z o.o. (“Blue Jet”) hereby submits this answer in opposition to the Motion 

for Leave to File Unauthorized Pleading and Sur-reply of JetBlue Airways Corporation 

(“JetBlue”) (hereafter, “JetBlue Sur-Reply”). As more fully set forth below, the JetBlue SurReply either (i) provides irrelevant information, which is now moot, or (ii) simply restates 

information provided in one or more of JetBlue’s prior three answers. As such, the JetBlue SurReply adds nothing relevant or new to the record and should be denied. Should the Department 

grant JetBlue’s motion, to the extent necessary, Blue Jet moves for leave to file this answer as it 

is necessary to provide the Department with pertinent information that JetBlue did not include in 

its Sur-Reply. 
2

I. JetBlue’s Discussion of Ongoing Trademark Litigation Adds Nothing Relevant 

or New to the Record. 

 JetBlue first argues that its sur-reply is necessary to “[a]lert[] the Department to the steps 

Blue Jet has taken, or refused to take, that have frustrated the process set forth by Part 215 of the 

Department’s regulations for resolving trade name disputes through the courts and that reflect 

poorly on Blue Jet’s compliance disposition...”1 As shown below, this information is irrelevant 

to the current proceeding. 

JetBlue “completely agrees that the courts are the appropriate forum to resolve the 

trademark dispute with Blue Jet,” 2 and yet JetBlue feels the need to provide a status update to 

the Department regarding the ongoing trademark case. It claims that “Blue Jet has frustrated 

JetBlue’s efforts to expedite the litigation and prompt resolution of the trade name dispute”3

, and 

somehow this “reflects poorly on [Blue Jet’s] compliance disposition and warrants denial of its 

application.”4 JetBlue equates not voluntarily expediting the procedures for service of process in 

a civil proceeding with not complying with U.S. law. Significantly, JetBlue cites no precedent to 

support this unique legal theory. 

This is not how the U.S. legal system works. For companies that do not have a presence 

in the United States, and therefore cannot be served process readily, there are established 

international procedures, which JetBlue acknowledges are “set forth in the Convention on the 

Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, known 

 

1

 JetBlue Sur-Reply at 1. 

2

 JetBlue Sur-Reply at 4. 

3

 JetBlue Sur-Reply at 4. 

4

 JetBlue Sur-Reply at 7. 
3

as the Hague Convention.”5

 JetBlue does not allege that Blue Jet has failed to comply with the 

Hague Convention. The thrust of its position is that it is inconvenient for JetBlue to comply with 

established legal procedures for service of process. 

In any event, the information provided by JetBlue regarding the ongoing trademark 

litigation is now moot. We are advised that Mr. Toby Butterfield, trademark counsel for JetBlue, 

has been informed that Blue Jet will waive service of the summons and complaint in the pending 

trademark litigation. As such, the Department should deny JetBlue’s motion for failure to state 

good cause. 

II. JetBlue Fails to Provide Any New Information Regarding Consumer Confusion. 

JetBlue next argues it needs to correct “mischaracterizations and misstatements... 

concerning JetBlue’s operations...”6

 JetBlue uses this as an excuse to restate information it 

provided to the Department in its numerous prior pleadings. 

JetBlue again touts its status as a “major U.S. air carrier”7

; this time as justification to 

support the Department to apply its Part 215 standards differently. JetBlue fails to cite any 

precedent for this theory. Instead, JetBlue states, “[o]f the 23 cases cited by Blue Jet..., only two 

have a plausible relation to any major air carrier”8

 and then dismisses those two cases. What 

JetBlue fails to note is that the cases cited in footnote 21 of Blue Jet’s March 20th reply, together 

with an additional six cases cited in footnote 16 that JetBlue fails to mention, are all of the Part 215 

 

5

 JetBlue Sur-Reply at 6. 

6

 JetBlue Sur-Reply at 1. 

7

 JetBlue Sur-Reply at 9. 

8

 JetBlue Sur-Reply at 9, fn. 12. 
4

cases since the Department revised Part 215 in 1988. It was not a matter of including only those 

cases most beneficial to Blue Jet’s position. There was no need to since the cases 

overwhelmingly support Blue Jet’s position and the Department’s dismissal of JetBlue’s 

objections. Moreover, JetBlue also failed to mention that one of the lead cases cited by Blue Jet 

in its reply did involve a major U.S. air carrier. As discussed in Blue Jet’s March 20th reply, in 

Order 1994-8-45, the Department decided an analogous case, which involved Jet USA Airlines, 

Inc. objecting to USA Jet Airlines, Inc.’s name. However, JetBlue failed to recognize that 

USAir, Inc., a major U.S. air carrier, also filed an objection regarding the trade name issue. 

Despite this objection from a major U.S. air carrier, and any similarity between the three carriers’ 

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.”9

 The result 

should be no different here. 

JetBlue’s (incorrect) dismissal of almost every Part 215 matter since 1988 because they 

did not involve “a national airline with a well-established famous national brand”10 also ignores 

the regulatory history of the Department’s substantial modification of Part 215. When revising 

Part 215, the Department expanded coverage of the rule to commuter air carriers noting that 

“[t]he same name similarity issues arise with these carriers as with carries[sic] operating large 

aircraft” so “the Department will treat commuter air carriers the same as other air carriers in this 

area.”11 Significantly, the Department saw no reason to apply different standards under the 

 

9

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

10 JetBlue Sur-Reply at 19. 

11 53 Fed.Reg. 17921, 17922 (May 19, 1988). 
5

revised Part 215 to small and large air carriers and has not done so in any case since revising Part 

215 in 1988. Accordingly, the Department similarly should not do so here. 

JetBlue next restates that it has significant charter business as well as international 

operations.12 Again, this is not new information as JetBlue already provided it in prior filings. 

While JetBlue believes it is correcting an alleged mischaracterization by Blue Jet of “the reality 

of the scope of JetBlue’s business”13, JetBlue actually is confirming how distinguishable its 

service is from Blue Jet’s. JetBlue states it provided charters to “55 points not otherwise 

serviced by JetBlue in 2012 and 2013.”14 Significantly, JetBlue does not claim, either in the 

body of the sur-reply or in the Declaration of Shivann Girdharie, that any of those points were in 

Europe, which is Blue Jet’s primary operating area. This time JetBlue notes it uses a charter 

broker, AirPlanning, for solicitation of some of its charter operations.15 However, Blue Jet 

submits that such a well-established broker as AirPlanning would not confuse a request from a 

potential client for a large aircraft with high-density seating operated by JetBlue for a request 

from a potential client for a small, business jet with an executive configuration operated by Blue 

Jet. 

The JetBlue Sur-Reply also once again includes attractive color pictures, this time of 

screen shots of foreign carrier websites. These pictures only further illustrate that JetBlue has 

little if any presence in Europe. The websites shown either allow a consumer to click through to 

JetBlue’s website in order to purchase domestic U.S. service directly or allow consumers to 

 

12 See JetBlue Sur-Reply at 12-17. 

13 JetBlue Sur-Reply at 12. 

14 JetBlue Sur-Reply at 12. 

15 See JetBlue Sur-Reply at 12. 
6

purchase domestic U.S. service as part of an interline itinerary with the foreign carrier. Stated 

differently, these pictures demonstrate that international service to/from Europe cannot be 

purchased, and is not even held out, in JetBlue’s name. Accordingly, on both accounts, JetBlue 

misstates the potential for consumer confusion. 

Lastly, JetBlue again presents its sole evidence of consumer confusion in the form of one 

drawing by a child.16 JetBlue appears to concede there is no evidence of actual confusion despite 

four years of Blue Jet operations to and from the United States; it now argues that increased 

service to the United States will lead to a significant potential for public confusion. What 

JetBlue fails to acknowledge is that any “forward-looking” analysis must be informed by 

historical evidence when it exists.17 Here, Blue Jet has a history of four years of operations to 

and from the United States, and JetBlue can point only to a single instance of alleged actual 

confusion in the form of a child’s drawing. 

WHEREFORE, the JetBlue Sur-Reply provides only irrelevant or previously submitted 

information. Therefore, JetBlue has failed to show good cause, and its motion to file an 

unauthorized document should be denied. To the extent the Department accepts JetBlue’s 

unauthorized document, for the reasons stated above, the Department should deny JetBlue’s 

request to deny or suspend Blue Jet’s application.

 

 

16 See JetBlue Sur-Reply at 19. 

17 See Polaroid Corp. v. Polarad Electronics Corp., 287 F.2d 492, 495 (2d Cir. 1961) (listing actual 

confusion as one of the variables that must be factored into a likelihood of confusion analysis). 
April 14, 2014 

ldl:;ltted, 

~c. 

Gary B. Garofalo 

Erin M. Tallardy 

Jason E. Maddux 

Counsel for Blue Jet Sp. z o. o. 

7 
CERTIFICATE OF SERVICE 

I certify on this 14th day of April, 2014 a copy of the foregoing has been served by 

electronic mail on the parties named below. 

Kris Urs 

John Duncan 

Toby Butterfield 

Jonathan B. Hill 

J. Parker Erkmann 

Benjamin M. Berlin 

James G. Hnat 

Robert C. Land 

Ellie Boragine 

U.S. Department of State 

Federal Aviation Administration 

Counsel for JetBlue 

Counsel for JetBlue 

Counsel for JetBlue 

Counsel for JetBlue 

JetBlue 

JetBlue 

JetBlue 

urskr@state. gov 

john.s.duncan@faa.gov 

tbutterfield@fkks.com 

jhill@cooley.com 

perkmann@cooley .com 

bber lin@cooley .com 

(by mail) 

(by mail) 

(by mail)