BEFORE THE

U.S. DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

)

Application of )

)

BLUE JET SP. Z O.O. ) Docket OST-2014-0026

)

For a foreign air carrier permit pursuant to )

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

pursuant to 49 U.S.C. § 40109 )

)

MOTION FOR LEAVE TO FILE UNAUTHORIZED PLEADING AND SUR-REPLY

OF JETBLUE AIRWAYS CORPORATION IN OPPOSITION TO APPLICATION

OF BLUE JET SP. Z O.O. FOR AN EXEMPTION AND AIR CARRIER PERMIT

Communications with respect to this document should be directed to:

James G. Hnat

Executive Vice President Corporate Affairs, 

 General Counsel & Secretary

Robert C. Land

Senior Vice President for Government 

 Affairs & Associate General Counsel

Ellie Boragine

Advertising and Commercial Counsel

JetBlue Airways Corporation

27-01 Queens Plaza North

Long Island City, NY 11101

(718) 709-3089

Jonathan B. Hill

J. Parker Erkmann

Benjamin M. Berlin

Cooley LLP

1299 Pennsylvania Ave., NW

Washington, DC 20004

(202) 842-7800

jhill@cooley.com

perkmann@cooley.com

bberlin@cooley.com

Counsel for JetBlue Airways Corporation

April 3, 2014
1

BEFORE THE

U.S. DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

)

Application of )

)

BLUE JET SP. Z O.O. ) Docket OST-2014-0026

)

For a foreign air carrier permit pursuant to )

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

pursuant to 49 U.S.C. § 40109 )

)

MOTION FOR LEAVE TO FILE UNAUTHORIZED PLEADING AND SUR-REPLY

OF JETBLUE AIRWAYS CORPORATION IN OPPOSITION TO APPLICATION

OF BLUE JET SP. Z O.O. FOR AN EXEMPTION AND AIR CARRIER PERMIT

JetBlue Airways Corporation (“JetBlue”) hereby respectfully seeks leave to file an 

otherwise unauthorized document pursuant to 14 C.F.R. § 302.6(b), namely this sur-reply to the 

Consolidated Reply of Blue Jet SP. Z o.o. to JetBlue Airways Corporation filed in this docket on 

March 20, 2014 (the “Reply”). This sur-reply has the limited purposes of:

(1) Alerting 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; and

(2) Correcting the mischaracterizations and misstatements in the Reply concerning 

JetBlue’s operations made in attempt to differentiate between Blue Jet and JetBlue.

Because this sur-reply will give the Department a more complete understanding of the dispute 

between the parties, it is supported by good cause. 
2

Summary

JetBlue has objected to Blue Jet’s applications because that company’s use of a nearly 

identical trade name will confuse the public and devalue the pro-consumer brand that JetBlue has 

invested so heavily in developing and promoting. JetBlue has pursued all relief available to 

prevent the harm that would result from Blue Jet’s proposed expansion of service and marketing 

efforts in the U.S. As JetBlue notified the Department in a February 27, 2014 letter, it has filed 

an action in the Southern District of New York seeking a court declaration that Blue Jet’s use of 

its mark infringes on JetBlue’s trademark rights.1 This is just the latest chapter in a long-running 

saga. Prior to the filing of the lawsuit, JetBlue has pursued trademark remedies against Blue Jet 

in Europe for nearly four years without resolution.2 Blue Jet has placed additional roadblocks to 

resolution by delaying the U.S. lawsuit by refusing to accept service of the complaint or 

otherwise allowing the litigation to proceed. It is therefore ironic that Blue Jet argues in the 

Reply that Part 215 directs air carriers to resolve trade name disputes in the courts and that 

therefore the “Department is not the appropriate forum to litigate this matter.”3

 

Blue Jet cannot have it both ways. It cannot point to the courts as the appropriate forum 

for resolution of the trade name dispute while simultaneously delaying the litigation by forcing 

JetBlue to undertake the cumbersome Hague Convention service procedures that will delay the 

litigation for months. Blue Jet’s refusal to agree to service of process, thus subjecting itself to 

personal jurisdiction of the court, while simultaneously asking the Department to grant its 

 1 Toby Butterfield (Correspondence Objecting Application), Docket OST-2014-0026 (Feb. 27, 

2014). 

2 See id.

3 Reply at 4.
3

applications to dramatically increase service to the U.S., reflects poorly on its compliance 

disposition and supports the case for Department action against its application.

JetBlue believes Blue Jet’s application should be denied because the evidence of potential 

public confusion is overwhelming. Unlike the cases relied upon by Blue Jet referencing smaller 

airlines, cargo carriers and air taxis, JetBlue is the fifth largest airline in the United States with 

award-winning customer service, an outstanding safety record and a brand that is wellrecognized not only in the United States but internationally. With a trade name that is nearly 

identical to JetBlue, introduction and expansion of the Blue Jet name into the U.S. market 

necessarily will confuse many consumers into believing that the charter carrier is associated with 

JetBlue. In an attempt to minimize the possibility of confusion, Blue Jet’s Reply relies on either 

misunderstandings or mischaracterizations of JetBlue’s operations, which include a robust 

charter operation and marketing of services to Europe. 

The likely confusion has at least two problematic impacts that warrant Department action 

under Part 215. First, consumers actually will be confused by the similar names resulting in illinformed purchase decisions and potentially misplaced customer calls. Second, if Blue Jet 

received a license from the Department enabling it to free ride off of the JetBlue name, the 

significant investments JetBlue has made in its product, service and customer-friendly pricing 

structure that consumers associate with the JetBlue name would be compromised. Such conduct

decreases the incentive for JetBlue and other carriers to make similar investments in the quality 

of their product to the detriment of the traveling public, which the Department should not 

condone.
4

I. Blue Jet Cannot Argue That the Courts Are the Appropriate Forum While 

Refusing to Submit Promptly to the Jurisdiction of U.S. Courts.

Blue Jet argues that because the Department’s policy and regulations express a preference 

for the resolution of trade name disputes in court, the Department “is not the appropriate forum 

to litigate this matter.”4

 JetBlue completely agrees that the courts are the appropriate forum to 

resolve the trademark dispute with Blue Jet, see 14 C.F.R. Section 215.2, and JetBlue has 

commenced an action to do just that. JetBlue disagrees, however, that the Department has no 

role to perform in this dispute given Blue Jet’s conduct. By refusing to accept service of process 

of the complaint filed by JetBlue, Blue Jet has attempted to avoid, or at least delay, submitting 

itself to the personal jurisdiction of U.S. courts, frustrating the purpose of the Department’s 

regulations, and preventing JetBlue from obtaining immediate injunctive relief from the court 

system. The Department’s regulations have “reserved the possibility of intervention”5 where 

there is “evidence of a significant potential for, or of actual, public confusion.” 14 C.F.R. 

§ 215.2. JetBlue respectfully submits that in these circumstances, where a foreign air carrier 

seeks to use a trade name almost identical to a major air carrier while avoiding the lawsuit that 

would resolve the dispute, the Department should prevent Blue Jet’s expansion in the U.S. 

market by denying its application.

A. Blue Jet Has Avoided All Attempts to Resolve the Trade Name Dispute with 

JetBlue.

 Blue Jet has frustrated JetBlue’s efforts to expedite the litigation and prompt resolution 

of the trade name dispute between the parties, undermining the process contemplated by Part 215 

of the Department’s regulations. Blue Jet’s effort to prolong resolution of the dispute is nothing 

new.

 4 Reply at 4. 

5 Order 2006-6-36 at 2 (June 28, 2006).
5

JetBlue has maintained long-running disputes with Blue Jet over its confusingly similar 

name in Europe. Nearly four years ago, Blue Jet started attempting to undermine JetBlue’s 

trademark rights by seeking to register its BLUE JET mark in the European Union as a 

Community TradeMark (“CTM,” roughly the equivalent within the E.U. of a U.S. federal 

trademark registration). When JetBlue opposed that application based on JetBlue’s longstanding CTM for its mark JETBLUE, Blue Jet retaliated by seeking to cancel JetBlue’s CTM, 

which JetBlue resisted vigorously. Although the parties engaged in settlement discussions 

periodically for nearly three years with a view to achieving a worldwide resolution of the trade 

name dispute, the parties still have not reached any agreement. 

Despite the outstanding trade name dispute in Europe, Blue Jet now seeks to expand 

service to the United States by filing these applications with the Department and registering the 

Blue Jet name here. This incursion into JetBlue’s home markets has forced JetBlue to take a 

strong stand, consistent with the Department’s regulations, by filing a lawsuit in the Southern 

District of New York to resolve the outstanding trademark issues in the United States. However, 

Blue Jet has made every effort to thwart initiation of the litigation process. To initiate the 

lawsuit, the complaint must be served upon Blue Jet or its representative. As described in the 

attached declaration of JetBlue’s trademark counsel Toby Butterfield, Blue Jet has refused to 

authorize any of its agents to accept service of the complaint despite numerous attempts.6

First, Mr. Butterfield asked Blue Jet’s DOT counsel in this proceeding to accept service 

of the complaint, or to indicate who would do so. Mr. Garofalo told Mr. Butterfield he was not 

authorized to do so but would pass on the request to his client. Mr. Butterfield received no 

response. Butterfield Decl. ¶¶ 3-4. Second, Mr. Butterfield asked a trademark attorney who 

 6 The Declaration of Toby Butterfield is provided as Attachment 1 to this sur-reply.
6

stated that he was “in the process of being retained” by Blue Jet whether he would accept service 

of the complaint. Butterfield Decl. ¶ 6. Again, Mr. Butterfield received no response. Butterfield 

Decl. ¶ 7. Third, Mr. Butterfield requested that Blue Jet’s Polish counsel accept service of the 

complaint, but Mr. Butterfield still received no response. Butterfield Decl. ¶¶ 8-9. 

To commence the litigation, JetBlue has no choice but to undertake the burdensome 

procedures set forth in the Convention on the Service Abroad of Judicial and Extrajudicial 

Documents in Civil or Commercial Matters, known as the Hague Convention. Based on Mr. 

Butterfield’s experience, this cumbersome process is likely to take anywhere from two to six 

months, necessarily delaying the litigation. Butterfield Decl. ¶11. Until service is perfected, 

JetBlue cannot obtain any injunctive relief against Blue Jet in the litigation. JetBlue is therefore 

currently thwarted from obtaining an Order from Judge Daniels declaring that Blue Jet’s use of 

the mark in the United States infringes JetBlue’s trademark rights. It appears that Blue Jet’s 

tactic is to delay the Court proceedings in the hopes that the Department will make a 

determination on Blue Jet’s application insulated from the inevitable finding of trademark 

infringement.

Blue Jet’s intransigence has serious implications for JetBlue’s trademarks rights. If the 

Department grants the applications promptly, Blue Jet could begin serving the U.S. without 

JetBlue even having the opportunity to defend its mark in court. Unless Blue Jet submits to the 

jurisdiction of the U.S. courts, the actual and potential public confusion identified in JetBlue’s 

answer can manifest itself before JetBlue can obtain personal jurisdiction over Blue Jet under the 

Hague Convention, depriving JetBlue of the opportunity to obtain relief against Blue Jet. To 

protect the public, ensure fairness and maintain the integrity of the Department’s own regulations 

governing trade name registrations, the Department should deny Blue Jet’s applications.
7

B. Blue Jet’s Apparent Refusal to Subject Itself to the Jurisdiction of U.S. Courts 

Reflects Poorly on Blue Jet’s Compliance Disposition and Warrants Denial of its 

Application.

Blue Jet’s refusal to submit to the jurisdiction of U.S. courts reflects poorly on its 

compliance disposition and warrants denial of its application. The aviation code requires the 

Department to consider an applicant’s compliance disposition in its licensing decisions. As the 

Department explained the standard for granting a license:

Section 41102 of Title 49 of the United States Code (Transportation) (“the 

statute”) directs us to determine whether applicants for certificate authority to 

provide interstate and foreign charter air transportation are fit, willing, and able to 

perform such transportation and to comply with the statute and the regulations of 

the Department. In making fitness findings, the Department uses a three-part test 

that reconciles the Airline Deregulation Act’s liberal entry policy with Congress’ 

concern for operational safety and consumer protection. The three areas of 

inquiry that must be addressed in order to determine a company’s fitness are 

whether the applicant . . . (3) will comply with the statute and regulations imposed 

by Federal and States agencies.”7

Indeed the Department’s guidelines for becoming a certificated air carrier direct the Department 

to consider: “whether other factors indicate that the applicant or its key personnel are unlikely to 

comply with government laws, rules and directives.”8 “The purpose of evaluating compliance 

disposition is to ensure that the company and the personnel running and controlling the company 

do and will abide by the laws, rules, and regulations governing the applicant's operations and that 

management will be diligent in maintaining safe operations.”9 The Department has relied on an 

 7 Order 1998-6-33 at 1 (June 26, 1998) (emphasis added).

8

 U.S. Dep’t of Transp., Air Carrier Fitness Div., Information Packet on How to Become a 

Certificated Air Carrier, 8 (2012), 

http://www.dot.gov/sites/dot.gov/files/docs/Certificated_Packet_2012_final.pdf.

9 Id. at 21. 
8

air carrier’s poor compliance disposition as a basis for revoking certificate authority and 

dismissing applications for a foreign scheduled certificate and exemption authority.

10

Here, Blue Jet has demonstrated an unwillingness to submit to the U.S. legal system. By 

refusing to subject itself to the jurisdiction of U.S. courts in a valid dispute over JetBlue’s 

trademark rights before commencing air carrier service to the United States, Blue Jet has 

frustrated resolution of the trade name dispute as contemplated by the Part 215. Blue Jet cannot 

have it both ways. It wants to avail itself of the market for air services in the United States, but it 

does not want to subject itself to U.S. courts for the purpose of resolving a long-running trade 

name dispute as contemplated by Part 215. The refusal to allow prompt resolution of the trade 

name dispute in court warrants denial of Blue Jet’s application. 

II. Approval of Blue Jet’s Application Will Result in Public Confusion.

Blue Jet’s Reply attempts to minimize the likelihood of public confusion resulting from 

use of the Blue Jet name. But Blue Jet’s arguments ignore or mischaracterize several important 

facts. The primary fact is that JetBlue is now the fifth largest major airline in the United States 

with award-winning customer service, an outstanding safety record and an award-winning 

brand.11 Any introduction of Blue Jet’s nearly identical trade name invites confusion – it is 

almost certain that any person hearing the Blue Jet name will assume an affiliation with JetBlue. 

Moreover, in an attempt to distinguish Blue Jet’s service from JetBlue’s, the Reply 

 10 Order 2008-2-3 at 2 (Feb. 1, 2008) (“Our review of the record in this case indicates that 

BMAC has failed to establish that it possesses . . . [the] proper regard for the laws and 

regulations governing its services to ensure that its aircraft and personnel conform to applicable 

safety standards and that acceptable consumer relations practices will be followed.”); Order 

2008-4-42 (Apr. 29, 2008) (confirming Order 2008-2-3 including dismissal of application for a 

foreign scheduled certificate and exemption authority) 

11 Notably, for nine consecutive years, JetBlue has won the J.D. Power & Associates North 

American Airline Satisfaction Study. Press Release, J.D. Power & Assocs., 2013 N. Am. 

Airline Satisfaction Study (May 15, 2013) (available at: http://www.jdpower.com/content/pressrelease/5sYQtpZ/2013-north-america-airline-satisfaction-study.htm).
9

mischaracterizes a number of aspects of JetBlue’s operations. An accurate depiction of JetBlue’s 

operations demonstrates the significant likelihood of overlap between the operations of the two 

companies.

A. None of the Cases Cited by Blue Jet Address a Situation in Which a Carrier Is 

Proposing to Use the Name of an Established Major U.S. Airline.

Although Blue Jet cites a number of cases in which the Department declined to take 

action against the registration of a similar trade name, none of those cases involve the 

registration of a name nearly identical to that of a major U.S. air carrier. Blue Jet’s brazen 

attempt to begin service to the United States using a name confusingly similar to the nation’s 

fifth largest air carrier is unique. Given the prominence of the JetBlue name and brand, the 

introduction of Blue Jet’s name, even in a limited way, into the United States market place will 

cause public confusion. 

Nearly every single one of the cases before the Department cited by Blue Jet involved 

regional carriers, commuter airlines or pure cargo carriers. Those cases did not involve a 

national airline with a well-established famous national brand.12 Unlike the airlines at issue in 

those cases, JetBlue has been using its famous trademark in connection with superior service in 

every aspect of air travel in the United States and abroad since at least as early as the year 1999. 

JetBlue has thirty-one federal trademark registrations with the United States Patent and

Trademark Office (“USPTO”), some of which are incontestable, for the trademark JETBLUE 

 12 Of the 23 cases cited by Blue Jet in the Reply, see Reply at 5 n.21, only two have a plausible 

relation to any major air carriers. Both are readily distinguishable from the situation presented 

by Blue Jet’s application. In Order 1994-7-34, the Department determined that there was not a 

risk of confusion between “American Eagle” and “Eagle Airlines,” but the most identifiable 

word in the “American Eagle” name was not found in the applicant’s proposed trade name. In 

Order 1994-1-3, the Department rejected the opposition of AirTran Corporation (the parent 

company of Mesaba Aviation) to AirTrain Corporation’s registration of the “Air Train” name 

because AirTran Corporation had not even registered its name with the Department and, at that 

time, did not conduct operations under the AirTran name. Order 1994-1-3 at 2.
10

and JETBLUE in combination with another word or words (“JETBLUE MARKS”). These 

registrations and applications include, without limitation, thirteen registrations for transportation 

of passengers, parcels, freight and cargo by air (Reg. Nos. 4338485, 4338484, 4338483, 

4289126, 3502438, 3084084, 3163121, 3163120, 3052759, 2971984, 2947348, 2451955, and 

2449988). JetBlue also owns a large number of unregistered marks incorporating or comprising 

the word JETBLUE used in connection with a variety of goods and services related to travel and 

air transportation. JetBlue also holds at least ten federal trademark registrations or pending 

registrations in connection with air transportation related services that include the word BLUE. 

JetBlue also owns registrations for the mark JETBLUE for use in connection with many other 

types of goods and services which are not transportation but are directly or indirectly related to 

JetBlue’s core business. JetBlue has invested millions of dollars in the advertising and 

promotion of its JETBLUE trademark, logos, and trade dress, and as a result, the public has 

come to associate the JETBLUE MARKS with goods, services and reputation for safety 

emanating exclusively from JetBlue. The JETBLUE MARKS are therefore nationwide, well 

established and extremely valuable.13 

Blue Jet was well-aware of JetBlue’s established marks, but nevertheless filed the instant 

application with the Department in an apparent attempt to circumvent the parties’ existing 

negotiations over trademark rights. As mentioned above, Blue Jet filed a request for revocation 

of JetBlue’s CTM with the E.U.’s Office of Harmonization for the Internal Market (“OHIM”),

and subsequently Blue Jet and JetBlue engaged in extended negotiations regarding a global 

 13 JetBlue also has established its brand in the European Union. As mentioned above, JetBlue 

has adopted and used, by itself or through its global airline partners, the mark “JetBlue” in 

connection with a wide variety of goods and services, as evidenced by its Community Trade 

Mark registration (“CTM”) for the trademark JETBLUE in the E.U., and various other national 

European registrations. 
11

settlement in connection with the use of these obviously confusing marks.14 Despite the course 

of the negotiations over approximately four years, Blue Jet did not reveal to JetBlue any 

information about its activity in the United States, its prior application for permission to fly 

charter flights into the United States pursuant to a grant of Special Authority under Part 375, or

its intention to make the instant application. JetBlue had no notice of those activities or of Blue 

Jet having even established a social media presence in the United States until it learned in 

February 2014 that Blue Jet had filed the instant application seeking broad authority to operate 

air transportation service to and beyond the United States. Understandably, when JetBlue learned 

of Blue Jet’s application to the Department, JetBlue halted the parties’ negotiations in the E.U. 

and sought to renew any negotiations here in the United States to address the global use of the 

disputed trade name. 

B. In Attempting to Distinguish Blue Jet’s Operations, the Reply Ignores Important 

Aspects of JetBlue’s Services.

The Reply attempts to draw a stark line between Blue Jet’s and JetBlue’s operations in an 

attempt to minimize the possibility of confusion. The story is not that simple. Blue Jet 

characterizes itself as “a Polish air carrier operat[ing] on-demand, single entity charters primarily 

serving Europe” while attempting to cabin JetBlue’s operations as “regularly scheduled domestic 

(U.S.) passenger operations.” Reply at 8. This mischaracterization ignores significant portions 

of JetBlue’s business, including JetBlue’s charter operations, international service and marketing 

of European services.

 14 See Toby Butterfield (Correspondence Objecting Application), Docket OST-2014-0026 (Feb. 

27, 2014).
12

1. JetBlue Operates a Significant Charter Business

Blue Jet attaches significance to the differences between the marketing of its services to 

those of JetBlue’s services. Reply at 10. Because JetBlue’s services include single entity 

charters, the Reply drastically understates the likelihood of public confusion. 

JetBlue offers both public and single-entity charters. Like Blue Jet’s single-entity charter 

business, JetBlue employs the services of a broker in addition to sales handled directly by

JetBlue. Girdharie Decl. ¶ 4.

15 While the mainstay of JetBlue’s business certainly is scheduled 

service, JetBlue’s charter services did serve 55 points not otherwise served by JetBlue in 2012 

and 2013, representing hundreds of flights and millions of dollars in revenue. Girdharie Decl. 

¶ 3, 5. Blue Jet’s attempt to distinguish the marketing of its services and JetBlue’s services 

ignores the reality of the scope of JetBlue’s business. Moreover, given JetBlue’s presence in the 

single-entity charter business, use of the Blue Jet name will lead to the false assumption that the 

two nearly identical-named services are somehow affiliated. 

2. The Reply Ignores the Scope of JetBlue’s International Operations and 

Marketing.

The Reply would lead the Department to believe that JetBlue’s services are solely 

domestic and therefore could not possibly overlap with Blue Jet’s European operations. Reply at 

10. Again, this reflects a misunderstanding of JetBlue’s current business. In recent years, 

JetBlue has engaged in a sustained effort to increase its service to international destinations and 

to partner with airlines worldwide. The result is a significant international operation today with 

the prospect of more international service, and greater overlap with Blue Jet in the future, 

especially as Blue Jet proposes to increase service to the United States. Indeed, service to 

 15 The Declaration of Shivann Girdharie is provided as Attachment 2 to this sur-reply.
13

Caribbean and other international destinations already represent almost 30 percent of the revenue 

seat miles available within JetBlue’s network.16 

In addition to the direct international service offered by JetBlue described above,

JetBlue’s international activities also include marketing services in partnership with international 

carriers to serve destinations worldwide. JetBlue’s European partners have been marketing and 

selling JetBlue’s services for years. Examples of the marketing activity undertaken by JetBlue’s 

nine European partners17 are depicted in the figures below.

 16 JetBlue Airways Corporation, Annual Report (Form 10-K) at 3 (Feb. 18, 2014) (including 

Puerto Rico as a Caribbean destination).

17 A list of all JetBlue’s partner airlines is available on the company’s website: 

http://www.jetblue.com/airline-partners/.
14

Figure 1: Aer Lingus Marketing of JetBlue’s Service
15

Figure 2: Lufthansa Marketing of JetBlue’s Service
16

Figure 3: Iceland Air Selling JetBlue’s Service

Similarly, JetBlue has engaged in marketing of its services in connection with flights to Europe 

on its partner airlines.
17

Figure 4: JetBlue Marketing Services to Europe on Aer Lingus

Blue Jet’s attempt to describe JetBlue’s service as simply a U.S. domestic operation ignores 

commercial reality. 
18

C. Blue Jet’s Reply Ignores the Likelihood of Public Confusion Arising from the 

Significant Expansion of Blue Jet’s Marketing and Services to the United States.

Blue Jet’s argument that its application should be granted because there is no evidence of 

public harm or confusion not only applies the incorrect standard provided in the Department’s 

regulations but misconstrues the facts. Reply at 12. First, Blue Jet incorrectly characterizes the 

standard. The sole question is not whether there is evidence of substantial confusion. Instead, 

the Department’s regulation is forward-looking and considers likelihood of public confusion in 

the future, as provided in Part 215.2: “These rules do not preclude Department intervention or 

enforcement action should there be evidence of a significant potential for, or of actual, public 

confusion.”18 Indeed, the Department has recognized its “responsibility to address unfair or 

deceptive practices in their incipiency when doing so would be in the public interest” in the 

context of trade name disputes.19

JetBlue’s argument against Blue Jet’s application is that the increase in service to the 

United States and corresponding marketing efforts resulting from the grant of its application will 

necessarily increase the amount of confusion given the nearly-identical trade names of the two 

companies. Blue Jet’s application seeks to expand its services beyond any minimal permission it 

may have previously received under Part 375 Special Authorization. Blue Jet now applies for 

permission to provide air transportation between the United States and Europe, which would 

permit transportation from the EU to points in the United States and beyond. The geographic 

operations would overlap significantly with JetBlue’s operations. See Answer at 10-12.

In addition, Blue Jet’s application seeks the broadest possible rights available under the 

US-EC Agreement. In its own words, “ Blue Jet is requesting authority to the full extent 

 18 14 C.F.R. § 215.2 (emphasis added).

19 Order 2006-6-36 at 3 (Jun. 28, 2006).
19

provided by the US-EC Air Transport Agreement and the automatic application of additional 

rights made available to European Community carriers in the future.” Blue Jet Appl. at 2 

(emphasis added). This would include, inter alia, the right to establish offices in the United 

States for the promotion and sale of air transportation, to engage in the sale of air transportation 

in the United States, and to “enter into franchising or branding arrangements with companies, 

including airlines.”20 For these purposes, Blue Jet proposes to use a name that is nearly identical 

to one of the most widely-recognized and admired brands in the entire U.S. airline industry. In 

view of the broad scope of Blue Jet’s request, it cannot seriously claim that a grant of its 

application does not present “significant potential” for consumer confusion.

The fact that Blue Jet’s de minimus social media presence has already resulted in the 

confusion of one young artist21 (and likely the artist’s parents) demonstrates that confusion will 

increase significantly as Blue Jet expands its services. Especially in light of Blue Jet’s attempts 

to delay resolution of the trade name dispute in the courts, the Department should act to stop the 

possibility of confusion in its incipiency and deny Blue Jet’s application.

 20 Air Transport Agreement between the United States and the European Community (Apr. 30, 

2007), Articles 10 (1), 10(4) & 10(8), 

21 See Answer of JetBlue Airways at 8-9.
20

WHEREFORE, JetBlue respectfully requests that the Department deny Blue Jet’s 

application for an exemption unless Blue Jet agrees to operate under a different name, which 

does not lead to confusion with JetBlue, in the United States, and that the Department grant such 

other or further relief as it deems appropriate and consistent with the public interest.

Respectfully submitted,

____________________________

Jonathan B. Hill

J. Parker Erkmann

Benjamin M. Berlin

Cooley LLP

1299 Pennsylvania Ave., NW, Ste. 700

Washington, DC 20004

(202) 842-7800

jhill@cooley.com

perkmann@cooley.com

bberlin@cooley.com

Counsel for JetBlue Airways Corporation

April 3, 2014
Attachment 1

Declaration of Toby M.J. Butterfield










Attachment 2

Declaration of Shivann Girdharie


CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Motion for Leave to File Unauthorized Pleading 

and Sur-Reply of JetBlue Airways Corporation in Opposition to Application of Blue Jet Sp. z o.o. 

for an Exemption and Air Carrier Permit was served this 3rd day of April, 2014 via email 

transmission on the following:

ggarofalo@ggh-airlaw.com

etallardy@ggh-airlaw.com

jmaddux@ggh-airlaw.com

urskr@state.gov

tbutterfield@fkks.com

john.s.duncan@faa.gov

esta.rosenberg@dot.gov

robert.finamore@dot.gov

info@airlineinfo.com

/s/

Benjamin M. Berlin