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 Couns el 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, D C 20004 (202) 842

- 7800 jhill@cooley.com perkmann@cooley.com bberlin@cooley.com Counsel for JetBlue Airways Corporation

April 3 , 20141 BEFORE THE U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF THE SECRETARY WASHINGTON, D.C. ) Applic ation 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 P LEADING 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 doc ument 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 purpose s of : (1) A lerting 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 understa nding of the dispute between the parties , it i s 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

. J etBlue 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 Departmen t 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 infringe s on JetBlue’s trademark rights. 1 This is just the latest chapter in a long

- running saga. Pri or 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 servic e of the complaint or otherwise allow ing 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 appr opriate forum to litigate this matter

. ” 3 Blue Jet cannot have it both ways. It cannot p oint 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 referenc ing smaller airlines , cargo carriers and air taxis , JetBlue is the fifth largest airline in the United States with award

- winning customer service , an outstandi ng safety record and a brand that is well

recognized 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 ma ny consumers in to believ ing that the charter carrier is associated with JetBlue

. In an attempt to minimize the possibility of confusion, Blue Jet’s Reply relies on either misunderstanding s or mischaracterization s of JetBlue’s operations , which include a r obust charter operation and marketing of service s to Europe.
Th e 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 ill

inform ed 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 traveli ng 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 regula tions 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 wit h 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 th e complaint file d 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 injunc tive 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 th at 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 den ying 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, undermin ing 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

. N earl y 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 registr ation) . When JetBlue opposed that application based on JetBlue’s long

standing CTM for its mark JETBLUE , Blue Jet retaliated by seeking to cancel JetBlue’s CTM , which JetBlue r esisted vigorously. Although the parties engaged in settlement discussions peri odically 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 th e 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 lawsui t 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 Bl ue 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. Butterfi eld asked Blue Jet’s DOT counsel in th is proceeding to accept service of the complaint, or to indicate who would do so. Mr. Gar ofa lo 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 Decl aration 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. Butter field 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, J etBlue 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 delay ing 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 appli cations promptly, Blue Jet could begin serving the U.S. without JetBlue even having the o pportunity to defend its mark in court. Unless Blue Jet submits to the jurisdiction of the U.S. courts, t he actual and potential public confusion identified in JetBlu e’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 integr ity 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 Dis position and Warrants Denial of its Application. Blue Jet’s refusal to submit to the jurisdiction of U.S. courts reflects poorly on its compliance d isp osition and warrants denial of its application. The aviation code requires the Department to consider a n 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 applican ts 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 Depar tment 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 fit ness 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 dir ect the Department to consider : “ whether other f actors 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 en sure that the company and the personnel running and controlling the compa ny 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 re voking certificate authority and dismissing applications for a foreign scheduled certificate and exemption authority

. 10 Here, Blue Jet has demonstrated a n 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 h ave 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 re solution 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 invite s con f usion

– it is almost certain that any person hearing the Blue Jet name will assume an affiliation with JetBlue. Moreover, in an attempt to distinguish Blu e 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 re gulations 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 dis missal of application for a foreign scheduled certificate and exemption auth ority) 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/press

release/5sYQtpZ/2013

- north

- america

- a irline

- satisfaction

- study.htm ).9 mischaracterizes a number of aspects of JetBlue ’s operations. An accurate depiction of JetBlue’s operations demonstrates the signif icant likelihood of overlap between the operations of the two companies. A. None o f 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 larges t 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 U nited States market place will cause public confusion. Nearly every single one of the cases before the De partment cited by Blue Jet in volved regional carriers, commu ter 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 re lat ion 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 Orde r 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 Departmen t 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 t ransportation 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 inco rporating 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 tran sportation 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 ap parent attempt to circumvent the parties’ existing negot i ations 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 partner s, the mark “JetBlue” in connection with a wide variety of goods and services, as evidenced by its Community Trade M ark 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 an y 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 ha d 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 serv ice 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 minim ize 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 sc heduled 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 Opera tes 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 unde rstates 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. G irdharie 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 o f 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 sole l y 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 susta ined 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 f uture, 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 addi tion 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 b een marketing and selling JetBlue’s services for years. Examples of th e marketing activity undertaken by JetBlue’s nine European partners 17 are depicted in the figures below.

16 JetBlue Airways Corporation, Annual Report (Form 10

- K) at 3 (Feb. 18 , 201 4 ) (including Puerto R ico as a Caribbean destination)

. 17 A list of all JetBlue’s partner airlines is av ailable on the company’s website: http://www.jetblue.com/airline

- partners/.14 Figure 1: Aer Lingus Marketing of JetBlue’s Service15 Fig ure 2: Lufthansa Marketing of JetBlue’s Service16 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 forwar d

- looking and considers likelihood of public confusion in the fut ure, 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 confu sion. ” 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 app lication 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. Bl ue 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, w hich 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 r ights available under the
US

- E C 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 carrie rs in the future.” Blue Jet App l

. a t 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 State s, and to “enter into franchising or branding arrangement s 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. airlin e 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 artist 21 (and likely the artist’s parent s ) 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 dis pute 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), Artic les 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 Bl ue 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.

Respect fully 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
Cou nsel for JetBlue Airways Corporatio n April 3 , 2014Attachment 1 Declaration of Toby M.J. ButterfieldAttachment 2 Declaration of Shivann GirdharieCERTIFICATE 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 Je t 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.du ncan@faa.gov esta.rosenberg@dot.gov robert.finamore@dot.gov info@airlineinfo.com

/s/ Benjamin M. Berlin