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 ) ) ANSWER OF JETBLUE AIRWAYS CORPORATION IN OPPOSITION TO APPLICATION OF BLUE JET SP. Z O.O. FOR AN EXEMPTION 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 Corporat ion 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.c om Counsel for JetBlue Airways Corporation

Dated: March 1 1, 20142 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 ) ) ANSWER OF JETBLUE AIRWAYS CORPORATION IN OPPOSITION TO APPLICATION OF BLUE JET SP. Z O.O. FOR AN EXEMPTION
Jet Blue Airways Corporation (“JetBlue”) hereby submits this answer in opposition to the application by Blue Jet Sp. z o.o. (“Blue Jet”) for an exemption authority under 49 U.S.C. Section 40109 . By proposing to use a trade name all

- but identical to that of J etBlue to initiate, among other things, service to the United States, Blue Jet will cause consumer confusion between the two carriers’ services. The Department of Transportation (“Department”) has long recognized its responsibility for safeguarding the pu blic from such confusion, and the Department has reserved for itself the power to intervene or take “enforcement action should there be evidence of a significant potential for, or of actual, public confusion.” 14 C.F.R. §
215.2. Blue Jet’s application w arrants action because the evidence of potential consumer confusion is overwhelming. For 15 years , the JetBlue name has represented high

- quality airline service at a fair price. The value of the name represents the dedication of JetBlue’s 15,000 crewmemb ers to providing superior service as well as millions of dollars in investments in marketing and promotion. The Blue Jet name is a transparent attempt to capitalize on JetBlue ’s3 name , as “Blue Jet” consists exclusively of the same two words as the JetBlue name with obvious visual, aural and connotative similarities.
I mportantly, the Blue Jet name leads to immediate confusion in the primary medium used by consumers for shopping for ai r travel

— the internet. When the words “Blue Jet” are entered

a s search terms in Google, the first results returned all refer to JetBlue and its services. Blue Jet does not appear on the first page of results. Figure 1: Google Search Results for “Blue Jet”4 These search results have troub ling implications for consumers. As demonstrated by JetBlue’s

numerous customer service awards, 1 consumers trust the JetBlue name. T he nearly

- identical name and search results will lead consumers to believe that Blue Jet is affiliated with JetBlue and

w ill offer the same type and level of service

. But there can be no assurance of Blue Jet’s service quality, leading to ill

- informed purchase decisions. Moreover, c ustomers seeking additional information about Blue Jet or its service offerings will be dir ected to JetBlue’s website and customer service operation, which would not be able to provide the customer with assistance. Such episodes would frustrate the traveling public and damage JetBlue’s reputation for providing helpful customer service. The Dep artment adopted Part 215 precisely to avoid such confusion. Accordingly , t he Department must deny Blue Jet’s exemption application to avoid confusion and the resulting harm to the traveling public.

I. The Department Has Adopted Standards to Prot ect Consumers from Confusion. The Department adopted Part 215 of its regulations to ensure that consumers are not confused by air carriers using similar names. Certified air carriers, commuter air carriers, and foreign direct air carriers may not operate o r hold out to the public air transportation services in a name that is not registered with the Department. 14 C.F.R. § 215.3. After an air carrier attempts to register its name, 2 the Department notifies the applicant of any other certificated, foreign or commuter carriers that may have an identical or similar name, and the applicant must notify the identified carriers of its registration. 14 C.F.R. § 215.5. The applicant’s notification must

1 Notably, for nine consecutive years, JetBlue has won the J.D. Power & Associate s North American Airline Satisfact ion Study for nine consecutive years. 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

- airline

satisfaction

- study.htm ). JetBlue has won numerous customer service awards, a list of which is available on the company’s websit e: http://www.jetblue.com/about/ourcompany/awards.aspx

. 2 “The Department . . . construe[s] any application for initial, reissued, or transferred authority as containing a ‘registration’ of the intended name.” 14 C.F.R. § 215.4(a).5 “identify the applicant and state its proposed name or the name requested, area of operation or proposed area of operation, type of business, and other pertinent matters.” Id. Generally, the Department does not intervene in cases involving carriers seeking to use similar business names; however, the Department “rese rved the possibility of intervention” where there is “evidence of a significant potential for, or of actual, public confusion.” 14 C.F.R. § 215.2. But the Department has not hesitated to protect consumers from confusion when the circumstances warrant it. 3 Under the regulations, the Department has the freedom to evaluate any factor that might cause public confusion, 4 including the (a) the similarity of the names and the relative strength of the existing carrier’s name, (b) any geographical overlap in opera tions, and (c) the type of operations of the two carriers, when adjudicating disputes regarding business names. 5
Consideration of each of these factors demonstrates that the Blue Jet name will cause consumer confusion

3 See In the Matter of the Trade Name Issued to Hyannis Air Service , Inc. d/b/a Cape Air d/b/a Nantucket Airlines , Order to Show Cause Concerning Name Similarity, Order 2006

- 6

- 36, Docket OST

- 2006

- 25256 (June 28, 2006) ( hereinafter Hyannis Order ) ; In the Matter of Airpac, Inc. , Order on Review of Staff Action, Order 83

- 5

- 38, Docket 40865, 101 C.A.B. 520 (May 4, 1983) (denying Airpac, Inc.’s application for name change to Air Pacific Airlines, Inc. because there would likely be confusion with Air Pacific Limited) ( hereinafter Airpac Order ); In the Matter of Atl. Express , Final Order, Order 83

- 1

- 51, 99 C.A.B. 621 (Jan. 14, 1983) (finding reasonable likelihood that public confusion would result between Atlantic Express, Inc. and Atlanta Express Airline Corp.); In the Matter of Air Specialties , Order 82

- 11

- 6, Docket 40766 , 98 C.A.B. 440 (Nov. 2, 1982) (finding that public confusion would result from Orion International Airlines, Inc. and Orion Air) ( hereinafter Air Specialties Order ) ; In the Matter of Dolphin Airways , Final Order, Order 81

- 12

- 96, 93 C.A.B. 184 (Dec. 15, 1981) (finding that public confusion likely to result from Dolphin Airways, Inc. and Dolphin Aviation, Inc.). 4 See Hyannis Order (evaluating carriers’ respective operations, geographic regions , markets, and equipment); In the Matter of Fitness Determination of Capitol Air, Inc. , Final Order, Inc., Order 94

- 10

- 32, 1994 WL 583777 (Oct. 25, 1994) (evaluating the carriers’, geographical a reas, operations, equipment, and history of use of the name). 5 See In the Matter of Airpac, Inc. Name Change , Order Granting Name Change and Reissuing Certificate, Order 82

- 11

- 7, Docket 40865 , 98 C.A.B. 158 (Nov. 2, 1982), rev’d Order on Review of Staff Action (May 4, 1983) (denying application of Airpac, Inc. to use name Air Pacific Airlines, Inc. because of confusion with Air Pacific Limited).6 II. The Blue Jet Name Will Cause Consumer Confusion A. Given the Similarity of the Blue Jet Name to JetBlue ’s Well
- Established Name, Consumer Confusion is Inevitable. There is no doubt that Blue Jet’s use of the name “Blue Jet” will confuse the public. As is obvious, the name “Blue Jet” contains e xactly, and only, the same words as JetBlue’s name

— the order simply is reversed. The words “jet” and “blue,” when used together are inextricably linked to JetBlue in the minds of the travelling public. This recognition has resulted from JetBlue’s nearly 15

- year history of operating under the “JetBlue” name . Those years have seen the company grow from a start

- up to more than $5 billion in annual revenue and ent r y into the
Fortune 500. During this time, JetBlue has marketed extensively and developed relat ionship s with numerous codeshare partners that display JetBlue’s code on flights to and from countries in Europe, Asia, and Africa. The company now flies at least 75 million passengers annually. JetBlue has invested heavily in the advert ising and promotion of its brand across all types of media, and, as a result, the public has come to associate the name with goods and services emanating exclusively from JetBlue. JetBlue’s presence on social media is pervasive. JetBlue has 1.8 million T witter followers; over 888,000 Facebook followers; 3,978 followers on YouTube (its videos have been viewed over 5.5 million times); 24,147 followers on LinkedIn; and 132,045 followers on Google+. Moreover, JetBlue’s name appears on the Boston Red Sox’s
sp ring training complex in Fort Myers, Florida, “JetBlue Park.” As noted in the introduction and Figure 1, the words “jet” and “blue,” in any order, are so strongly tied to JetBlue that an internet search for “Blue Jet” using Google returns J etBlue’s website as the first result. Worse, the first page of Google search results for “Blue Jet” does not return Blue Jet’s website. Rather, it returns two websites using the words “blue” and “jet” in that order: a website for Blu

- Jet, “an innovative l eader in fertilizer injection and tillage equipment,”7 and a website belonging to the University of Alaska that describes “red sprites and blue jets,” which are “upper atmospheric optical phenomena with thunderstorms.” The first search result for Blue Jet appears on the third page, and even then, the link is to Blue Jet’s LinkedIn page. Figure 2: Page 3 of Google Search Results for “Blue Jet”8 B ecause none of the other websites on the first page of search results belongs to an a ir carrier besides JetBlue, the average consumer is likely to click on the first search result believing that JetBlue is somehow associated with Blue Jet. But neither the customer service tools on the JetBlue website nor a customer service person the cust omer subsequently contacts will be able to offer help. Any consumer seeking Blue Jet’s services is likely to find this experience extremely frustrating, potentially leading to complaints filed at the Department or posted on

- line

. JetBlue customers also w ill be confused by Blue Jet’s service in the United States. Despite Blue Jet’s comparatively limited footprint on the internet, its presence already has caused consumer confusion. Blue Jet maintains a Facebook page , which has been “liked” by only
838 Face book users, 6 where photos can be posted and shared. One such photo , apparently of a child’s drawing, demonstrates that consumer confusion between Blue Jet and JetBlue is a certainty. The photo , ironically posted to the “Photos of Blue Jet” page , depicts an aircraft in flight that is unmistakably a JetBlue aircraft. Indeed, the young artist has spelled out the word “JetBlue” three times on the drawing

.

6 Facebook, Blue Jet Business Aviation , https://www.facebook.com/BlueJetBusinessAviation ( last visited Mar. 10, 2014) In addition, there were 3 Facebook users “talking about” the Blue Jet Facebook page and 5 Facebook users that “were here” at the page. Id. By comparison on the sam e day, the JetBlue Facebook page had 889,983 likes, 3,213 Facebook users “talking about” JetBlue and 1,301,573 Facebook users that “were here” at the page. Facebook, JetBlue Airways , https://www.facebook.com/JetBlue ( last visited Mar. 10, 2014)

.9 Figure 3: JetBlue Picture Posted to “Photos of Blue Jet ” Facebook Page 7

Even though Blue Jet has de minimus web presence , it appears JetBlue customers already have been confused by the Blue Jet Facebook page , and Blue Jet has taken no action to avoid this confusion by removing the picture. As Blue Jet increases marketing of its new proposed services in cities served by JetBlue, this confusion will only increase and the Department should take immediate action to avoid it

.

7 Facebook, Blue Jet Business Aviation/Photos of Blue Jet , https://www.facebook.com/BlueJetBusinessAviation/photos ( last visited Mar. 10, 2014)10 B. Confusion Will Result from the Geographic Overlap between JetBlue and Blue Jet’s Operations. Blue Jet’s proposed operations will overlap with JetBlue’s operations and that of its codeshare and interline partners. Whether the services of similarly

- named carriers overlap is an important consideration in the Department’s consideration of whether consumer confusion is likely. 8 Indeed, the Department’s predecessor agency, the Civil Aeronautics Board, rejected a petition for a name change due to the possibility of consumer confusion where “there [wa]s a significant potential for geographical overlap.” 9 In its application, Blue Jet reque sts authority to conduct extensive charter operations that will overlap with JetBlue’s existing operations, including: air transportation of persons and property from any point or points behind any Member State of the European Union via any point or point s in any Member State and via intermediate points to any point or points in the United States and beyond

. 10 Blue Jet’s website already touts the availability of its service “for a flight to any domestic, European or intercontinental destination.” 11 JetBlue ’s operations overlap. JetBlue operates scheduled and charter service across the United States and internationally, including service to
16 countries in the Caribbean and Central and South America. In addition, JetBlue has entered more than two dozen par tnership agreements with international airlines across the world. 12

8 Hyannis Order at 2 (revoking name registration because “both air carriers intend to operate in the same geographic region”). 9 Airpac Order at 2. 10 Appl. of Blue Jet Sp. z o.o. For A Foreign Air Carrier Permit and Exemption Authority, at 1 (Feb. 24, 2014) (“Blue Jet Application”) (emphasis added). 11 Blue Jet, Charter of Jetplanes , http://www.bluejet.aero/en/czarter

- odrzutowcow.aspx (last visited Mar. 1 1 , 2014)

. 12 JetBlue’s website lists partnerships with 27 international airlines. See JetBlue Airways Corporation, Partner Airlines , http://www.jetblue.com/airline

- partners/ (last visited Mar. 11, 2014)

.11 Codeshare partners display JetBlue’s code on flights between the United States and the United Arab Emirates, Europe 13 and South Africa. 14 Moreover, using JetBlue’s website, consumers can
pu rchase, from JetBlue or one of its partners, transportation from the United States to all regions of the world: Figure 4 : Screen Shot of International Destinations Available from South Florida Area

The geographic area of Blue Jet’s proposed services already overlaps with the geographic area of the services the public may purchase from JetBlue. There is much more than a “significant

13 JetBlue Airways and Emirates

– US

- UAE Codesharing , NOAT, Docket DOT

- OST

- 2013

- 0103 (May 14, 2013). 14 South African Airways

– South Africa

- US Codesharing with JetBlue , NOAT, Docket DOT

OST

- 2013

- 0146 (Aug. 30, 2013).12 potential” for geographic overlap. The grant of Blue Jet’s application will result in immediate and extensive overlapping operations and inevitably result in consumer confusion. 15
C. Blue Jet’s Livery Does Not Distinguish Its Operations from JetBlue’s Operations. Despite the difference in equipment currently used by Blue Jet and JetBlue, the color scheme of Blue Jet’s aircraft will lead to public confusion. JetBlue operates Airbus A320s (150 seats) and A321s (190 seats) and Embraer E190s (100 seats), 16 and Blue Jet proposes service with aircraft with no more than 60 seats. The aircraft of both com panies , however, have similar markings . For example, Blue Jet’s Bombardier Global 5000 SP

- ZAK livery closely resembles JetBlue’s aircraft livery

— the bottom portion of the fuselage is painted solid blue and the top solid white. Figure 5 : JetBlue Aircraft

15 Airpac Order at 2. 16 Information about JetBlue’s aircraft and tailfin designs can be found at http://www.jetblue.com/travel/planes/

.13 Figure 6 : Blue Jet’s Global 5000 SP
- ZAK

No ne of Blue Jet’s planes appear to bear markings that would help the public distinguish them from JetBlue aircraft , potentially leading to consumer confu sion.

III. To Avoid Consumer Confusion, the Department Must Deny Blue Jet ’s Exemption Application . The Department should exercise its authority to prevent Blue Jet from introducing services into the United States that will confuse the public. The Department has authority granted by 49 U.S.C. § 41712 to ensure that the public is not subject to any unfair or deceptive practices or unfair methods of competition. Moreover, the Department has reserved authority to intervene when a proposed name has a significant probability of causing consumer confusion. The Department should exercise that authority here. The Department and the CAB have done so in circumstances where the possibility of consumer confusion was far less than presented by Blue Jet’s application. In the Matter of Airpac, Inc. , the CAB ultimately concluded consumer confusion was likely even though there was no geographical overlap between carriers operating in Fiji and Alaska at the time of the decision. Despite the apparent disparate operations, th e CAB concluded that confusion between “Air Pacific” and “Air Pacific Airlines, Inc.” was likely because (a) the two names were substantially identical; (b) there was “a significant potential for14 geographic al overlap” 17 ; and (c) the name “Air Pacific” was i dentified with the services provided by the Fiji carrier by consumers after years of marketing efforts. 18 Consequently, the CAB denied the application of the Alaskan carrier to change its name. Far beyond what the Fiji carrier had done in the Airpac case, JetBlue has spent an incredible amount of money and nearly 15
years to develop an extensive network of routes and a preeminent brand. As a result of these investments as well as its commitment to superior service, the public and trade have come to associa te the name “JetBlue” with quality services emanating exclusively from JetBlue. Indeed, JetBlue has won numerous customer service awards, including the “#1 Airline Brand”. 19 The value of the JetBlue brand is integral to the company’s business strategy, as reflected in its recently filed Form 10

- K: Our customers have repeatedly indicated the distinctive JetBlue Experience is an important reason why they choose to fly us over other carriers. We measure and monitor our customer feedback regularly which helps us to continuously improve customer satisfaction. One way we do so is by measuring our net promoter score, or NPS. This metric is used by companies in many industries to measure and monitor customer experience. Many of the leading consumer brands that are recognized for great customer service receive high NPS scores. We believe a higher NPS score has positive effects on customer loyalty and leads to increased revenue. 20 Blue Jet’s application proposes to co

- opt that name and devalue the investments JetBlue has made , to the detriment of the traveling public who are likely to believe the companies are affiliated and make ill

- informed purchase decisions accordingly

. If the Department fails to act in this case, it will signal to the airline industry that invest ments in quality and name recognition

17 Air Pacific Limited h eld authority to serve several northwestern U.S. points and indicated that it intended to use that authority and would likely advertise in areas where Airpac operated. 18 Airpac Order at 2

. 19 JetBlue Airways Corporation, Our Company

– Awards , https://www.jetblue.com/about/ourcompany/awards.aspx (last visited Mar. 11, 2014)

. 20 JetBlue Airways Corp. , Annual Report ( Form 10

- K ), at 3 ( Feb. 19, 2014)

.15 can be degraded and undermined by subsequent entry using similar names. This is an unacceptable result. In a multitude of circumstances, the Department has taken action to protect such investments prevent such confus io n . 21 Because the initiation of service by Blue Jet will cause immediate confusion to the public and harm to JetBlue, JetBlue requests that the Department deny Blue Jet’s exemption application unless Blue Jet agrees to operate under a different name in the United States. JetBlue acknowledges that the Department’s regulations “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.” 14 C.F.R. § 215.2. Accordingly, within three days of the filing of Blue Jet’s application with the Department, JetBlue filed an action in the Southern District of New York seeking a declaration that Blue Jet’s use of its mark infringes on JetBlue’s trad emark rights. JetBlue’s trademark counsel already wrote to the Assistant Secretary of Transportation notifying the Department th at JetBlue had filed the case. A copy of that letter describing that case has already been docketed in connection with this ap plication. Even though JetBlue will litigate the case against Blue Jet aggressively, adjudication of the claims raised in the complaint will take time. JetBlue therefore requests that the Department deny Blue Jet’s application for an exemption.
WHEREFO RE, 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

21 See Airpac Order (denying Airpac, Inc.’s application for name change to Air Pacific Airlines, Inc. because there would likely be confusion with Air Pacific Limited); In the Matter of Atl. Express , Final Order, Order 83

- 1

- 51, 99 C.A.B. 621 (Jan. 14, 1983) (finding reasonable likelihood that public confusion would result between Atlantic Express, Inc. and Atlanta Express Airline Corp.); Air Specialties Order (finding that public confusion would result from Orion International Airlines, Inc. and Orion Air); In the Matter of Dolphin Airways , Final Order, Order 81

- 12

- 96, 93 C.A.B. 184 (Dec. 15, 1981) (finding that public confusion likely to result from Dolphin Airways, Inc. and Dolphin Aviation, Inc.).