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 O PPOSITION TO MOTION FOR LEAVE TO FILE UNAUTHORIZED PLEADING AND SUR-REPLY OF JETBLUE AIRWAYS CORPORATION Communications with respect to th is 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, 2014BEFORE 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 O PPOSITION TO MOTION FOR LEAVE TO FILE UNAUTHORIZED PLEADING AND SUR-REPLY OF JETBLUE AIRWAYS CORPORATION Blue Jet Sp. z o.o. (“Blue Jet”) hereby subm its this answer in opposition to the Motion for Leave to File Unauthorized Pleading an d Sur-reply of JetBlue Airways Corporation (“JetBlue”) (hereafter, “JetBlue Sur-Reply”). As more fully set forth below, the JetBlue SurReply either (i) provides irrele vant information, which is now m oot, 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 pert inent information that JetBlue did not include in its Sur-Reply.2 I. JetBlue’s Discussion of Ongoing Trad emark Litigation Adds Nothing Relevant

or New to the Record. JetBlue first argues that its sur-reply is neces sary 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 c ourts 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 ongoi ng trademark case. It claims that “Blue Jet has frustrated JetBlue’s efforts to expedite the litigation a nd prompt resolution of the trade name dispute” 3 , and somehow this “reflects poorly on [Blue Jet’s] compliance disposi tion and warrants denial of its application.” 4 JetBlue equates not volunt arily expediting the procedures for service of process in a civil proceeding with not complying with U.S. law. Significantly, JetB lue 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 ther efore cannot be served process readily, there are established international procedures, which JetBlue acknowle dges 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 inconveni ent 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 serv ice of the summons and complaint in the pending trademark litigation. As such, the Department should deny JetBlue’s moti on for failure to state good cause.

II. JetBlue Fails to Provide Any New Inform ation Regarding Consumer Confusion. JetBlue next argues it needs to correct “mischaracterizations and misstatements... concerning JetBlue’s operations...” 6 JetBlue uses this as an ex cuse 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 sta ndards 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 revi sed Part 215 in 1988. It was not a matter of including only those cases most beneficial to Blue Jet’s posi tion. 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 menti on 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 anal ogous 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 file d an objection regarding the trade name issue. Despite this objection from a major U.S. air carrier , and any similarity betw een the three carriers’ names, the Department ruled it “w[ould] not de ny the applicant the use of the corporate name “USA Jet”, nor will we rest rict 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 Depa rtment’s substantial modification of Part 215. When revising Part 215, the Department expanded coverage of the rule to co mmuter air carriers noting that “[t]he same name similarity issues arise with these carriers as with ca rries[sic] operating large aircraft” so “the Department will treat commuter ai r carriers the same as other air carriers in this

area.” 11 Significantly, the Department saw no reas on 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 larg e 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 significan t charter business as well as international operations. 12 Again, this is not new information as Je tBlue 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 JetBlu e in 2012 and 2013.” 14 Significantly, JetBlue does not claim, either in the body of the sur-reply or in the Declaration of Shiv ann 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 co nfuse a request from a potential client for a large airc raft with high-density seating operated by JetBlue for a request from a potential client for a small, business jet with an executive config uration operated by Blue

Jet. The JetBlue Sur-Reply also once again include s attractive color pictures, this time of screen shots of foreign carrier websites. These pictures only further illu strate 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 inte rline itinerary with the foreign carrier. Stated differently, these pictures demonstrate that in ternational 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 eviden ce of consumer confusion in the form of one drawing by a child. 16 JetBlue appears to concede there is no evidence of actua l confusion despite four years of Blue Jet operati ons to and from the United States ; it now argues that increased

service to the United States will lead to a significant potentia l for public confusion. What JetBlue fails to acknowledge is that any “for ward-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 poin t only to a single inst ance 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 suspen d 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 f actored 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.

7CERTIFICATE 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)