american airlines v. despagar - trademark complaint.pdf

8/10/2019 American Airlines v. Despagar - trademark complaint.pdf

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MIAMI CENTER, SUITE 3200, 201 SOUTH BISCAYNE BOULEVARD, MIAMI, FLORIDA 33131-4332 TELEPHONE (305) 358-5171

750362

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO.: 13-22773-CIV-GAYLES/TURNOFF

AMERICAN AIRLINES, INC.,

Plaintiff,

v.

DESPEGAR.COM USA, INC., et al.

Defendants.

DESPEGAR.COM USA, INC.,

Counter-Plaintiff

v.

AMERICAN AIRLINES, INC.

Counter-Defendant.

SECOND AMENDED COMPLAINT

Plaintiff, American Airlines, Inc. (Plaintiff, American Airlines, or American),

brings this second amended complaint against Despegar.com USA, Inc. (Despegar USA),

Travel Reservations SRL (Despegar Uruguay), Despegar.com.ar S.A. (Despegar Argentina),

Decolar.com Ltda. (Despegar Brazil), Despegar.com Chile S.A. (Despegar Chile),

Despegar.com Mexico, S.A. de C.V. (Despegar Mexico), Despegar.com Per SAC (Despegar

Peru), Servicios Online 3351 de Venezuela, C.A. (Despegar Venezuela), Despegar Colombia

SAS (Despegar Colombia), Servicios Online S.A.S. Despegar.com (Despegar Ecuador), and

Case 1:13-cv-22773-DPG Document 124 Entered on FLSD Docket 01/08/2015 Page 1 of 87


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Decolar.com, Inc. (the Despegar Parent Company; collectively, Defendants), to halt their

unfair competition, trademark infringement, false advertising, and other improper or deceptive

practices and for damages, and alleges as follows:

NATURE OF ACTION

1.

This is an action arising primarily under Title 15 United States Code, Sections

1114 and 1125.

2. The fundamental purpose of trademark law is to protect consumers from being

confused as to the source or affiliation of the products or services that they seek to buy. In order

to assist consumers in making informed decisions, trademark law encourages companies to

develop brand names to differentiate their products and services within the marketplace. This is

accomplished by legally limiting a brands use to the brands owner.

3. Unfortunately, some individuals and entities attempt to take advantage of

consumers by marketing their products or services in a manner that improperly uses the brands

of others. In effect, they seek a free ride on the reputation and goodwill of anothers brand or the

conduct is such that it is improperly harming the brand of another. The Defendants have

knowingly committed these types of infringements.

THE PARTIES

4. Plaintiff, American Airlines, Inc. is a Delaware corporation with a principal place

of business at 4333 Amon Carter Boulevard, Fort Worth, Texas 76155.

5. Defendant Despegar.com USA, Inc. is a Delaware corporation registered to

conduct business in the State of Florida. Its principal place of business is 14 N.E. 1 st Avenue,

Suite 516, Miami, Florida 33132. Despegar USA is one of the conscious, dominant, and active

forces behind the wrongful acts of complained of herein, such wrongful acts being engaged in for



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the individual gain and benefit of all Defendants. Because Despegar USA caused and materially

contributed to the unlawful actions alleged herein and the harm caused to American Airlines, it is

therefore responsible and liable to American Airlines for such actions.

6.

Defendant Travel Reservations SRL is based in Uruguay with offices at Ruta 8

Km 17,500, Edificio Synergia, Oficina 101, Zonamerica, Montevideo 1600 UY. Despegar

Uruguay is one of the conscious, dominant, and active forces behind the wrongful acts of

complained of herein, such wrongful acts being engaged in for the individual gain and benefit of

all Defendants. Because Despegar Uruguay caused and materially contributed to the unlawful

actions alleged herein and the harm caused to American Airlines, it is therefore responsible and

liable to American Airlines for such actions.

7. Defendant Despegar.com.ar S.A. is based in Argentina with offices at Boulevard

Corrientes 587, Floor 3, Buenos Aires, Federal Capital C1043ADS. Despegar Argentina is one of

the conscious, dominant, and active forces behind the wrongful acts of complained of herein,

such wrongful acts being engaged in for the individual gain and benefit of all Defendants.

Because Despegar Argentina caused and materially contributed to the unlawful actions alleged

herein and the harm caused to American Airlines, it is therefore responsible and liable to

American Airlines for such actions.

8. Defendant Decolar.com, Ltda. is based in Brazil with offices at Rua Araujo, 216,

7, Andar, Republica, Sao Paulo, SP 0120-020. Despegar Brazil is one of the conscious,

dominant, and active forces behind the wrongful acts of complained of herein, such wrongful

acts being engaged in for the individual gain and benefit of all Defendants. Because Despegar

Brazil caused and materially contributed to the unlawful actions alleged herein and the harm



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caused to American Airlines, it is therefore responsible and liable to American Airlines for such

actions.

9. Defendant Despegar.com Chile S.A. is based in Chile with offices at Luis Thayer

Ojeda 86, Piso 3, Providencia, Santiago. Despegar Chile is one of the conscious, dominant, and

active forces behind the wrongful acts of complained of herein, such wrongful acts being

engaged in for the individual gain and benefit of all Defendants. Because Despegar Chile caused

and materially contributed to the unlawful actions alleged herein and the harm caused to

American Airlines, it is therefore responsible and liable to American Airlines for such actions.

10.

Defendant Despegar.com Mexico, S.A. de C.V. is based in Mexico with offices at

Avenida Ejercito Nacional, No. 373, piso 3, Granada, Distrito Federal. Despegar Mexico is one

of the conscious, dominant, and active forces behind the wrongful acts of complained of herein,

such wrongful acts being engaged in for the individual gain and benefit of all Defendants.

Because Despegar Mexico caused and materially contributed to the unlawful actions alleged

herein and the harm caused to American Airlines, it is therefore responsible and liable to

American Airlines for such actions.

11. Defendant Despegar.com Per SAC is based in Peru with offices at RUC

20544547756, Calle Martir Jose Olaya #129, Entre 1 y 2 Pardo Esq. BCO NACION,

Lima/Miraflores. Despegar Peru is one of the conscious, dominant, and active forces behind the

wrongful acts of complained of herein, such wrongful acts being engaged in for the individual

gain and benefit of all Defendants. Because Despegar Peru caused and materially contributed to

the unlawful actions alleged herein and the harm caused to American Airlines, it is therefore

responsible and liable to American Airlines for such actions.



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12. Defendant Servicios Online 3351 de Venezuela, C.A. is based in Venezuela with

offices at Avenida Francisco de Miranda, Parque Cristal, Torre Oeste, Piso 6, Los Palos Grandes,

Caracas. Despegar Venezuela is one of the conscious, dominant, and active forces behind the

wrongful acts of complained of herein, such wrongful acts being engaged in for the individual

gain and benefit of all Defendants. Because Despegar Venezuela caused and materially



13. Defendant Despegar Colombia SAS is based in Colombia with offices at Carrera

106 15 A 25 Mx 15, Bogata, D.C., Colombia. Despegar Colombia is one of the conscious,

dominant, and active forces behind the wrongful acts complained of herein, such wrongful acts

being engaged in for the individual gain and benefit of all Defendants. Because Despegar

Colombia caused and materially contributed to the unlawful actions alleged herein and the harm

caused to American Airlines, it is therefore responsible and liable to American Airlines for such

actions.

14.

Defendant Servicios Online S.A.S. Despegar.com is based in Ecuador with offices

at Av Repblica de El Salvador N34-165, Interseccion Suiza, Edificio Dygoil, Quito 170135,

Pinchincha, Ecuador. Despegar Ecuador is one of the conscious, dominant, and active forces

behind the wrongful acts complained of herein, such wrongful acts being engaged in for the

individual gain and benefit of all Defendants. Because Despegar Ecuador caused and materially



15.

Defendant Decolar.com, Inc. is a Delaware corporation and is the parent

corporation of all other Defendants. The Despegar Parent Company is one of the conscious,



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dominant, and active forces behind the wrongful acts complained of herein, such wrongful acts

being engaged in for the individual gain and benefit of all Defendants. Because the Despegar

Parent Company caused and materially contributed to the unlawful actions alleged herein and the

harm caused to American Airlines, it is therefore responsible and liable to American Airlines for

such actions.

JURISDICTION AND VENUE

16.

This Court has subject matter jurisdiction over Plaintiffs federal claims pursuant

to Title 15, United States Code, Section 1121 and Title 28, United States Code, Sections 1338(a)

and (b).

17.

This Court has jurisdiction over Defendants in that at least one or more of the

Defendants are located in this judicial district, transact business in this judicial district, and each

have committed tortious acts from within this district.

18. Each Defendant, either individually or through one or more of its agents,

committed tortious acts within the State of Florida as described herein.

19.

Through the use of Defendants websites and through their own conduct,

Defendants have committed wrongful acts in Florida, including:

a.

At least several Defendants share at least one common officerMario Fiori.

Decisions made by Mr. Fiori relating to the events harming American as

described herein were made both in his capacity as president of DespegarUSA, and as an officer of Despegar Argentina and the Despegar Parent

Company.

b.

All Defendants actively use the websites despegar.com and decolar.com(collectively, Website) for their fraudulent and improper ticketing scheme.

Defendants actively use electronic communications on the Website to offerFlorida consumers, among others, artificially inflated fares. The fares are

inflated due to charges and fees collected by several Defendants which are

buried in the amount displayed as Americans air fare for the destination. Thisscheme harms Americans business in Florida by willfully and maliciously

diverting customers from American.



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c. All Defendants actively use electronic communications on the Website totarget, solicit, and offer Florida consumers, among others, artificially inflated

fares. The fares are inflated due to charges and fees collected by several

Defendants which are buried in the amount displayed as Americans air fare

for the destination. This scheme harms Florida consumers by causing suchconsumers to (i) lose the opportunity to pay the correct and lower fare on

American compared with the fares of competing carriers, or (ii) pay distorted,artificially higher charges and fees for American Airlines tickets than charged

by several Defendants for comparable tickets of other airlines.

d.

All Defendants use the Website for their fraudulent and improper ticketing

scheme and several Defendants have actually obtained sales from Florida

consumers from the Website. These sales are neither isolated nor infrequent

and are believed to be in the millions of dollars annually.

e.

All Defendants operate the Website, derive revenue from the Website, orotherwise benefit from the Website, which is hosted by servers based inMiami, Florida. Defendants have arranged for a subsidiary of Despegar

Uruguay to provide server maintenance, technical support, and training in

Miami, Florida.

f.

Despegar USA, Despegar Uruguay, Despegar Argentina, Despegar Brazil,

Despegar Chile, Despegar Mexico, Despegar Peru, Despegar Venezuela,

Despegar Colombia, and Despegar Ecuador each booked air travel for Floridaconsumers on American Airlines.

g. All Defendants actively engage in broad marketing as one companyDespegar.coma fictional entity that functions to encompass all

Defendants, including Foreign Defendants and that presents itself as based in

Miami, Florida.

h.

Defendants have caused the services offered by the Despegar.com fictional

entity to be marketed in Florida to Florida consumers.

i.

All Defendants operating through the Website enter into contractsas

Despegar.comwith various hotels in Florida. These contracts are entered

into for the benefit of and are ratified by all Defendants. Many of thesecontracts include a forum selection clause specifying Florida (and often

Miami) as the forum for the resolution of any disputes.

j.

Each foreign Defendant makes decisions outside of Florida relating to the

portrayal of American Airlines fares on the Website which cause injury to

Florida consumers who pay higher fares believing American is charging thosefares, when in fact the true fare is actually lower. These decisions harm

Americans brand and reputation.



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k. All Defendants make decisions outside of Florida relating to the portrayal ofAmerican Airlines fares on the Website that cause additional injury to

American by intentionally making Americans fares to appear to be higher

when in fact the true fare is actually lower. These decisions divert customers

from American.

l. Defendants have conspired against American Airlines and have committed atleast one overt act in Florida in furtherance of that conspiracy, including the

use of the Website to display inflated American fares that are targeted to

Florida consumers, among others.

m.

All Defendants are collectively responsible for the operation of the Website,

derive substantial revenues from Florida consumers who use the Website and

they also direct marketing efforts in Florida. There likely are contracts oragreements between Defendants addressing these issues. As such, each

foreign Defendant is in fact conducting business in Florida.

n.

Some fares booked on the Website for travel by Florida residents or to Florida

are improperly transferred by Defendants to another travel agency in order to

impact the payment of supplemental commissions (discussed below). Uponinformation and belief, Defendants have an improper agreement with such

third-party travel agents to divide commissions.

o. The Despegar Parent Company directs or coordinates the acts of all otherDefendants with respect to air travel reservations and the acts complained of

herein.

20.

Defendants unlawful acts occurred in this State and in this district and in

commerce, were directed to cause and have caused injury to Plaintiff within this district and in

commerce.

21. The Despegar Parent Company conducts or engages in a business venture in

Florida and has agents (including but not limited to Despegar USA) with offices in Florida.

22.

The Despegar Parent Company engages in substantial and not isolated activities

within Florida.

23.

Upon information and belief, the Despegar Parent Company was the mastermind

behind the scheme described herein to misuse Americans distinctive marks, to implement



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confusing and misleading advertising, to artificially inflate the displayed fare prices for

American Airlines flights, to charge higher booking fees for American Airlines flights than

would be charged for flights on other airlines, to divert customers from American to other

airlines, and to deceive consumers, causing harm to American Airlines and the value of its

distinctive marks and reputation. The Despegar Parent Company carried out this plan by

directing each other Defendant to discriminate against American Airlines by charging higher

booking fees for American Airlines flights, to increase the displayed fare price for American

Airlines flights, to divert customers to other airlines, and to display Americans marks and flight

information even if the other Defendants were not authorized to do so.

24.

The Despegar Parent Company exercises a high degree of control over the other

Defendants. The control exercised is so substantial that the individual Defendants act as one

entitythe non-existent entity referred to as Despegar.comfor the ultimate benefit of the

Despegar Parent Company. Upon information and belief, The Despegar Parent Company has

acknowledged that each other Defendant will act in furtherance of the overall brandthe non-

existent entity referred to as Despegar.comand manifests no separate interests of its own

apart from those of the Despegar Parent Company. Each other Defendant has acceded to the

Despegar Parent Companys control and has accepted the agency conferred on it by the Despegar

Parent Company.

25. At all times relevant hereto, the Despegar Parent Company controlled and

directed the activities of each other Defendant as described herein. All companies thus present an

image to the public that they operate as a single enterprise. In fact, the Despegar Parent Company

sufficiently controls its subsidiaries and participates in their activities to such extent that it has,



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for example, accepted responsibility for activities of each of its subsidiary companies, including

all other Defendants here, in United States administrative enforcement proceedings.

26. As the beneficial owner of all other Defendants, the Despegar Parent Company

thus derived substantial revenues and profits from the tortious acts committed by Defendants in

Florida.

27. The Despegar Parent Company directs its officers or agents to travel to Florida for

the purposes of taking actions that have harmed American, including establishing and

maintaining the Websites that improperly make use of Americans distinctive marks, negotiating

or contracting with Florida-based companies to carry out the Despegar Parent Companys

scheme to injure American, opening bank accounts and completing banking transactions with

Florida-based banks whereby the Despegar Parent Company funnels ill-gotten gains to and from

the other Defendants, and conspiring to harm American. It also routinely sends a representative

to Miami to review and manage its financial affairs.

28. The foregoing facts demonstrate that Defendants carry on a business in Florida,

committed and continue to commit tortious acts in Florida, and are causing injury to persons

within Florida thereby personally subjecting each one to personal jurisdiction in this Court.

29.

Venue is proper in this district under Title 28, United States Code, Section 1391,

because at least one Defendant, if not all of them, conduct business in the district and the claims

asserted against Defendants arose in this district.

PLAINTIFF AND ITS TRADEMARKS

30. American Airlines enjoys a reputation in the United States and internationally as a

premier airline. American Airlines is one of the worlds largest airlines. Together with its



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affiliates, American Airlines serves 250 cities in over forty countries, with more than 4,000 daily

flights in over 1,000 aircraft.

31. American Airlines has a rich history. For almost 80 yearslong prior to

Defendants acts described hereinAmerican Airlines developed global name-recognition and

goodwill, and has become a household name. In connection with its business, American Airlines

has used and continues to use the trade name American Airlines and the trademarks and service

marks AA and AMERICAN AIRLINES, and both alone and in connection with other words

and designs such as:

(stylized) (stylized)

(hereinafter the American Airlines Marks).

32.

American Airlines draws its roots from scores of aviation companies founded in

the 1920s. The Aviation Corporation was formed in 1928 to acquire many of these young

aviation companies. In 1930, the Aviation Corporations airline subsidiaries were incorporated

into American Airways, Inc. In 1934, American Airways became American Airlines, Inc.

33. On June 25, 1936, American Airlines was the first airline to fly the Douglas DC-3

in commercial service. On February 16, 1937, American Airlines carried its one-millionth

passenger. American Airlines began trading on the New York Stock Exchange on June 10, 1939.

By the end of the decade, American Airlines was the nations number one domestic air carrier in

terms of revenue passenger miles.

34. To enhance and give public notice of its trademark rights, American Airlines has

obtained numerous federal trademark registrations for many of its American Airlines Marks, the

overwhelming majority of which have been in continuous use for more than five years and have



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become incontestable pursuant to Section 15 of the U.S. Trademark Act, also known as the

Lanham Act, 15 U.S.C. 1115(b), including but not limited to:

AMERICAN AIRLINES, U.S. Registration No. 514,294. Registered on August

23, 1949 for air transport of passengers and freight, based on first use in commerce in

1934.

AA, U.S. Registration No. 514,292. Registered on August 23, 1949, for air

transport of passengers and freight, based on first use in commerce in 1935.

AA and Design, U.S. Registration No. 893,040. Registered on June 16, 1970, for

transportation of passengers by air, based on first use in commerce in 1969.

AA.COM, U.S. Registration No. 2,339,639. Registered on April 11, 2000, for

transportation of passengers and cargo by air, based on first use in commerce in 1998.

35. In addition to its registration rights, American Airlines has strong common-law

rights in the American Airlines Marks by virtue of the extensive prior use and promotion of the

marks in commerce and American Airlines status as senior user of the marks.

36.

The American Airlines Marks serve as unique and famous source identifiers for

American Airlines and its various air transportation and other services.

37. American Airlines has invested hundreds of millions of dollars in worldwide

advertising and marketing in order to build the fame, reputation, and goodwill of the American

Airlines Marks. American Airlines advertises through a variety of media, including television,

radio, newspapers, magazines, direct mail, and in telephone directories across the country.

38.

American Airlines also promotes its products and services on the Internet, via its

own websites and through advertising on the websites of third parties.



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39. Through American Airlines longstanding use of the marks and promotional

activities related to the marks, and due to their widespread and favorable public acceptance and

recognition, the American Airlines Marks have become distinctive designations of the source of

origin of American Airlines goods and services. The American Airlines Marks have become

uniquely associated with American Airlines and its high quality goods and services. These marks

are assets of incalculable value as symbols of American Airlines, its quality goods and services,

and its goodwill.

40. By virtue of their extensive use and promotion over the years, the American

Airlines Marks have developed valuable distinctiveness and secondary meaning in the

marketplace. The American Airlines Marks have achieved a significant and lasting presence in

the marketplace, causing the marks to achieve high recognition and value among consumers.

41.

The American Airlines Marks are famous within the meaning of the dilution

provisions of the Lanham Act, 15 U.S.C. 1125(c); moreover, the American Airlines Marks

became famous prior to Defendants unlawful acts complained of herein. As a result of

American Airlines extensive advertising and promotional efforts and its continuous use of the

American Airlines Marks, the marks are famous and distinctive and are widely recognized by the

general consuming public of the United States as a designation of source of the involved goods

and services.

DEFENDANTS WEBSITE IS THE HUB OF THE FRAUDULENT SCHEME

42.

Defendants operate together as an online travel agency (OTA). Defendants

describe themselves as the largest Online Travel Agency in Latin America with a base in

Miami and with a presence in 21 countries throughout the Latin American region and the U.S.



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43. Defendants collectively operate their OTAs through their Website, which is

accessible at www.despegar.com (which means to take off in Spanish) and www.decolar.com

(which means to take off in Portuguese).

44.

Defendants fraudulent scheme begins with the Website. The Website is created

and operated by Defendants to provide travelers with options for air travel, hotel

accommodations, rental cars, and other services. Each Defendant uses the Website to target

Florida consumers, among others, derive revenues from Florida consumers, among others, and

also divert customers from American.

45.

While Defendants hold out their Website to the public (and to some travel-service

providers such as hotels) as though they operate a singular OTA, that is not how their businesses

are organized. Each Defendant (except the Despegar Parent Company) operates a separate OTA

that shares the same Website with all other Defendants and which has virtually identical content

as the OTAs operated by each other Defendant. Often Defendants contract with hotels and other

travel service providers under the name of a non-existent entityDespegar.com. When it comes

to air travel, however, each Defendant acts as a separate OTA and each must be authorized as an

agent of the airline in order to ticket air travel for consumers.

46.

At all times relevant hereto, the Website was comprised of various country-

specific webpages, all of which were accessible to users in Florida and across the globe from the

main page available at www.despegar.com. Upon information and belief, the responsibility for

the day-to-day operation and revenue generation of the country specific webpages is delegated to

various Defendants as follow:

a.

The day-to-day operation of the country-specific webpages for the United

States is delegated primarily to Despegar USA.



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b. The day-to-day operation of the country-specific webpages for Uruguay is

delegated primarily to Despegar Uruguay.

c. The day-to-day operation of the country-specific webpages for Argentina isdelegated primarily to Despegar Argentina.

d.

The day-to-day operation of the country-specific webpages for Brazil is

delegated primarily to Despegar Brazil.

e.

The day-to-day operation of the country-specific webpages for Chile is

delegated primarily to Despegar Chile.

f.

The day-to-day operation of the country-specific webpages for Mexico is

delegated primarily to Despegar Mexico.

g. The day-to-day operation of the country-specific webpages for Peru is

delegated primarily to Despegar Peru.

h. The day-to-day operation of the country-specific webpages for Venezuela isdelegated primarily to Despegar Venezuela.

i. The day-to-day operation of the country-specific webpages for Colombia isdelegated primarily to Despegar Colombia.

j.

The day-to-day operation of the country-specific webpages for Ecuador is

delegated primarily to Despegar Ecuador.

k.

The day-to-day operation of all other country-specific webpages is shared

among Defendants.

47.

Upon information and belief, Defendants act in concert to provide uniform

content on each of the country-specific webpages, with the exception that prices will be shown in

the currency of the specific country on which the webpages focus.

48.

Upon information and belief, the Despegar Parent Company coordinates the

activities, including the activities complained of herein, of each of the other Defendants.

Booking and Ticketing Air Travel

49.

Consumers can use Defendants Website to obtain information regarding routes,

schedules, fares, prices, and availability for air travel and to book travel on airlines that have

authorized Defendants to book flights.



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50. Information regarding schedules, fares, and availability on American Airlines was

provided to Despegar Argentina, Despegar Uruguay, Despegar Brazil, Despegar Chile, Despegar

Mexico, Despegar Peru, Despegar Venezuela, Despegar Colombia, and Despegar Ecuador

(collectively, the Authorized Despegar OTAs) through a global distribution system (GDS)

such as Sabre or Amadeus, which compiles flight information from multiple airlines and delivers

it to travel agencies (including some OTAs).

51.

For each booking, processed through a GDS, airlines typically pay the GDS a fee.

In turn, authorized OTAs responsible for the booking are generally compensated by the GDS.

Some of the Authorized Despegar OTAs were paid an additional commission for booking

international travel on American Airlines.

52. The Authorized Despegar OTAs were previously authorized to serve as booking

and ticketing agents for American Airlines. Despegar USA was never appointed or authorized as

an American Airlines ticketing agent and was not authorized to view, display, book, or ticket

American Airlines flights.

53.

American Airlines tickets are non-transferrable and are issued only in the name of

the actual traveler.

54.

The American Airlines fares some Defendants were authorized to display, book,

and ticket were available for purchase by the traveler from American Airlines, with the

authorized Defendants acting only as an intermediary to facilitate the transaction. Defendants

were not authorized to purchase and re-sell any American Airlines tickets and, in fact, have not

done so.

55.

When a traveler booked an American Airlines flight through one of the

Authorized Despegar OTAs, a seat on that flight would be reserved for the traveler and a ticket



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may then be purchased from American. Once a reservation was booked, the Authorized

Despegar OTAs could process the transaction between the traveler and American Airlines and

could then issue a ticket on American Airlines ticket stock.

56.

Despite the fact that Despegar USA was never authorized to display American

Airlines flights, it did and improperly used Americans marks in doing so. Upon information

and belief, Despegar USA also secured bookings on American Airlines flights by improperly

utilizing the booking authority of another Defendant. Despegar USA then used brick-and-mortar

or other online travel agencies in order to process the customers payments and ticket these

flights.

57.

As more fully described below, Defendants improperly discriminate against

American Airlines by misrepresenting the air fare prices allegedly charged by American on the

Website. Additionally, Defendants also charge higher ticketing fees for bookings on American

flights than for bookings on other airlines. These improper fare tactics are not disclosed to either

actual or potential consumers. Defendants also improperly shift bookings to and from non-

affiliated travel agencies in order to book and ticket flights Defendants could not or to cause

American Airlines to pay additional commission amounts to the non-affiliated travel agencies in

order to harm Americans business.

58. Defendants scheme is blatant and notorious. Defendants harm both the business

reputation of American and diminish the value of the American Airlines Marks.

Fare Discrimination

59. With regard to fares, Defendants used the American Airlines Marks to display

fares for American Airlines flights. However, Defendants caused their Website to artificially

inflate the air fares actually charged by American Airlines for travel to or from Florida, and to



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and from other locations in the United States, by including in the purported American fare

amount a portion of a fee charged by Defendants. This additional fee is not separately disclosed

to the potential or actual consumer on the Website at any stagesearch, display, booking or

purchaseas being part of the fee actually and separately charged by Defendants and not

American Airlines.

60. Potential American consumers thus are being improperly diverted from American

to other airlines mistakenly believing that American is charging a higher airfare for the travel

they seek. Actual consumers are deceived into paying an unnecessary and mischaracterized

amount for airfare for the travel they booked through the Website.

Ticketing Fees

61. While using the American Airlines Marks to display fares for American Airlines

flights, Defendants also caused their Website to inflate and charge higher fees for bookings on

American Airlines flights. Defendants do not charge those same fees for tickets booked through

the Website with other carriers for similar travel.

62.

By varying the fees in this manner, Defendants improperly discriminate against

American while appearing to be neutral in their offering of airfare information. In fact,

Defendants even tout a low fare guarantee on their Website. Potential American consumers

thus are being improperly diverted from American to other airlines.

Shifting Bookings

63.

Various travel agencies have agreements with American whereby supplemental

commissions are paid based on the volume of ticketed fares. In other words, as these agencies

volume of tickets increases, so will the commission to be paid by American.



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64. Upon information and belief, Defendants have agreements with GDSs whereby

additional volume booking incentives are paid to Defendants based on the volume of bookings

completed through a particular GDS. These agreements are believed to provide greater

incentives to Defendants for booking flights on airlines that exclusively use the same GDS that

provides the incentive to Defendants. Because American Airlines has relationships with multiple

GDSs, by booking flights on American, such bookings would not count toward the GDS volume

incentives. Defendants thus have attempted to divert some consumers to airlines other than

American in order to maximize the incentive payments they receive from a GDS.

65.

Again using the American Airlines Marks, Defendants lured consumers to the

Website where flights were booked. However, because some of the Defendants do not have a

booking or ticketing authority (or a supplemental commission agreement) with American, they

shifted bookings to travel agencies who have such authority and agreement. It did so in order to

complete unauthorized transactions and increase the commissions paid by American to these

agencies. Upon information and belief, Defendants improperly entered into arrangements with

such agencies to obtain a share of the supplemental commissions paid by American.

THE HARM TO AMERICAN AND ITS MARKS

66.

Defendants advertise on the internet using the American Airlines Marks in order

to draw consumers to their Website.

67. By using American Airlines name and marks on the Website and in the manner

described above, Defendants make it appear that American Airlines endorses the improper

business practices of charging higher fees and/or fares for travel on American than for air travel

on other airlines thus misleading consumers to believe that fares for travel on American are

higher than those actually published by American or by any other carrier.



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68. American Airlines has not endorsed or sponsored Defendants activities in the

manner in which they are being conducted. Nor did American Airlines authorize Defendants to

use American Airlines name, reputation, or marks in such a manner.

69.

Consumers who encounter Defendants unauthorized use of the American

Airlines Marks in the manner described herein are likely to believe that Defendants, and the

improper fare and fee charges on the Website, are approved by, associated with, or affiliated with

Plaintiff when, in fact, this is not the case.

70. Defendants thus are improperly trading on American Airlines name and its

reputation. The active use of the Website, the electronic and inaccurate transmission of American

Airlines fare and fee information, the use of American Airlines name and trademark along with

the foregoing misrepresentations is conduct that each Defendant has directly, or indirectly,

caused, participated in, consented to, approved or authorized in order to promote their scheme

for financial gain.

71. The effect of Defendants conduct is to harm Plaintiff and its business reputation

because such conduct is likely to cause confusion, to cause mistake, or to deceive the public and

the trade to believe that Defendants and their fraudulent services originate with or are related to

American Airlines, or are licensed by, sponsored or approved by, connected with, or associated

or affiliated with Plaintiff, when this is not the case.

72. Defendants conduct thus harms the business reputation of Plaintiff and

diminishes the value of the distinctive quality of the American Airlines Marks, which are

famous. Defendants harm to American Airlines Marks began after such marks became famous.

73.

Additionally, Despegar USA is displaying the American Airlines Marks and flight

information in order to confuse or deceive the public into believing that Despegar USA is a bona



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fide booking and ticketing agent of American Airlines when, in fact, it is not. Having drawn

these potential consumers to its Website by use of the American Airlines Marks and then again

by displaying the American Airlines Marks on its Website, potential consumers are then shown

artificially inflated prices for American Airlines fares in order to persuade the consumers to

select another airline for their travel. This is a classic bait-and-switch based on Despegar USAs

misappropriation and infringing use of the American Airlines Marks.

74.

As a result of the aforesaid acts by Defendants, Plaintiff has suffered and

continues to suffer substantial damage and irreparable injury. Plaintiff has no adequate remedy

by law, and unless Defendants are restrained and enjoined by the Court, said acts will be

continued and will continue to cause damage and irreparable injury to Plaintiff and to damage

Plaintiffs goodwill and business reputation. Plaintiff cannot ascertain the precise amount of its

damages at this time.

75. Plaintiff has been required to retain undersigned counsel in this matter and agreed

to pay counsel a reasonable fee for their services.

76.

All conditions precedent to the commencement of this action have occurred or

been waived.

COUNT I

VIOLATION OF LANHAM ACT, 15 U.S.C. 1125(a)

(False Advertising Despegar USA)

77. Plaintiff repeats and realleges each and every allegation of Paragraphs 1 through

76 above, as if set forth herein.

78. Section 1125(a)(1) of the Lanham Act provides in part:

(a) (1) Any person who, on or in connection with any goods or

services, or any container for goods, uses in commerce any word,

term, name, symbol, or device, or any combination thereof, or any



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false designation of origin, false or misleading description of fact,

or false or misleading representation of fact, which

(B) in commercial advertising or promotion, misrepresents the

nature, characteristics, qualities, or geographic origin of his or her

or another persons goods, services, or commercial activities, shall

be liable in a civil action by any person who believes that he or she

is or is likely to be damaged by such act.

79. From in or around at least 2011 (the exact dates of which are known to Despegar

USA but not to Plaintiff), and using Americans Marks until American discontinued the booking

authority of the Authorized Despegar OTAs and filed this lawsuit, Despegar USA displayed

flight information for American Airlines flights that improperly discriminated against American

Airlines by misrepresenting the air fare prices allegedly charged by American on the Website.

Additionally, Despegar USA also charged higher ticketing fees for bookings on American flights

than for bookings on other airlines. These improper fare tactics were not disclosed to either

actual or potential consumers. Despegar USA also improperly shifted bookings to and from non-

affiliated travel agencies in order to book and ticket flights Despegar USA could not or to cause

American Airlines to pay additional commission amounts to the non-affiliated travel agencies in

order to harm Americans business.

80.

From in or around at least 2011 (the exact dates of which are known to Despegar


authority of the Authorized Despegar OTAs and filed this lawsuit, Despegar USA caused the

Website to artificially inflate the air fares actually charged by American Airlines for travel to or

from Florida, and to or from other locations in the United States, by including in the purported

American fare amount a portion of a fee charged by Despegar USA. This additional fee was not

separately disclosed to the potential or actual consumer on the Website at any stagesearch,



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display, booking, or purchaseas being part of the fee actually charged by Despegar USA and

not by American. In this manner, Despegar USA misrepresented the air fare prices allegedly

charged by American on the Website for many, if not all, of Americans flights. These

misrepresentations were made to actual or potential consumers who searched for flights on

routes for which American Airlines offered service. Upon information and belief, Despegar USA

displayed these misrepresented air fare prices to thousands of actual or potential consumers.

81.



authority of the Authorized Despegar OTAs and filed this lawsuit, Despegar USA also charged

higher fees for many, if not all, bookings on American Airlines flights. Despegar USA did not

charge those same fees for tickets booked through the Website with other carriers for similar

travel. Upon information and belief, Despegar USA charged higher booking fees for American

Airlines flights to thousands of consumers.

82. By varying the fees in this manner, Despegar USA improperly discriminated

against American while appearing to be neutral in their offering of air fare information. In fact,

Despegar USA even touted a low fare guarantee on the Website.

83.

Despegar USAs scheme was blatant and notorious. Despegar USA harmed both

the business reputation of American and diminished the value of the American Airlines Marks.

84. Potential consumers thus were being improperly diverted from American to other

airlines mistakenly believing that American is charging a higher airfare for the travel they

sought. Actual consumers were deceived into paying an unnecessary and mischaracterized

amount for travel booked through the Website.



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85. Upon information and belief, at all times relevant to this lawsuit, Despegar USA

had agreements with GDSs whereby additional volume booking incentives are paid to Despegar

USA based on the volume of bookings completed through a particular GDS. These agreements

are believed to provide greater incentives to Despegar USA for booking flights on airlines that

exclusively use the same GDS that provides the incentive to Despegar USA. Because American

Airlines has relationships with multiple GDSs, by booking flights on American, such bookings

would not count toward the GDS volume incentives. Despegar USA thus has attempted to divert

some consumers to airlines other than American in order to maximize the incentive payments it

would receive from a GDS.

86.


USA and not to Plaintiff), and by using Americans Marks until American discontinued the

booking authority of the Authorized Despegar OTAs and filed this lawsuit, Despegar USA did

not have a booking or ticketing authority (or a supplemental commission agreement) with

American and so it shifted all bookings for American Airlines flights to travel agencies who have

such authority and agreement. It did so in order to complete unauthorized transactions and

increase the commissions paid by American to these agencies (whose identities are known to

Despegar USA). The exact number of bookings shifted by Despegar USA is known to Despegar

USA, but not to Plaintiff. Upon information and belief, Despegar USA improperly entered into

arrangements with such agencies to obtain a share of the supplemental commissions paid by

American.

87. Despegar USAs actions, individually or through its agents as described above,

constitute a false or misleading representation of fact in an advertisement/promotion on the

Website concerning American Airlines fares by wrongfully and falsely attributing to American



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95. Plaintiff is the registrant of the American Airlines Marks.

96.

Plaintiffs American Airlines Marks are famous and highly recognized by the

general consuming public, and were famous and highly recognized by the general consuming

public before Defendants actions complained of herein.

97.

Plaintiff did not consent to Despegar USA using, reproducing, counterfeiting,

copying, or colorably imitating its registered American Airlines Marks in any way. Nor did

Plaintiff consent to Despegar USA applying these Marks to the Website, advertisements, labels,

signs, prints, packages, wrappers, receptacles or any other materials intended to be used in

commerce.

98.

On dates known only to Despegar USA, and without authorization or consent

from American Airlines, Despegar USA used a reproduction, counterfeit, copy, or colorable

imitation of Plaintiffs registered American Airlines Marks in connection with the sale, offering

for sale, distribution, or advertising of goods or services.

99. The American Airlines Marks were displayed on Despegar USAs Website in

connection with information about American Airlines flights. Potential consumers were drawn

to Despegar USAs Website because of the use of Americans Marks and the display of

American Airlines flight information. These consumers could then select and book American

Airlines flights on Despegar USAs Website even though Despegar USA was not authorized

and could not process such reservations.

100.

Upon information and belief, when consumers used Despegar USAs Website to

access and book an American Airlines flight, Despegar USA would use the booking authority of

another Defendant in order to reserve the seat. The reservation was then transferred by Despegar

USA to another travel agency (the identities of which are known to Despegar USA but not to



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American Airlines) to complete the transaction between the consumer and American Airlines

and to issue the ticket. Upon information and belief, Despegar USA profited from these

transactions based on agreements with authorized travel agencies. Despegar USA also charged

the consumers a service or booking fee for these transactions.

101.

Despegar USAs use of Plaintiffs registered American Airlines Marks is likely to

cause or has caused confusion or mistake or was used to deceive potential consumers into

believing that Despegar USA was an authorized agent of American Airlines.

102. Despegar USAs use of Plaintiffs registered American Airlines Marks is likely to

cause or has caused confusion or mistake or was used to deceive potential consumers into

believing that the fare prices shown on Despegar USAs Website were the fare prices charged by

American Airlines, when in fact they were not.

103.

Despegar USA knew that it did not receive Plaintiffs consent to use the

registered American Airlines Marks and that it was not authorized to book or ticket American

Airlines flights.

104.

Despegar USA knew that the prices displayed on the Website for American

Airlines fares were inaccurate.

105.

Upon information and belief, Defendants willfully and maliciously modified or

allowed the modification of the Website in the manner describe above to harm American

Airlines.

106.

Despegar USA thus used Plaintiffs registered American Airlines Marks with

knowledge that such use was intended to cause confusion, mistake, or deception.

107.

Despegar USA derived substantial revenues and profits through the unauthorized

use of the American Airlines Marks.



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108. American Airlines has suffered harm, including but not limited to loss of profits

and damages, as a direct result of the Despegar USAs infringing use of Plaintiffs registered

American Airlines Marks.

109.

By virtue of their aforementioned acts, Despegar USA has violated Title 15,

United States Code, Section 1114(1).

COUNT III


(False Advertising Despegar Uruguay)



111.

Section 1125(a)(1) of the Lanham Act provides in part:












Uruguay but not to Plaintiff), and by using Americans Marks until American discontinued the

booking authority of the Authorized Despegar OTAs and filed this lawsuit, Despegar Uruguay

displayed flight information for American Airlines flights that improperly discriminated against


Website. Additionally, Despegar Uruguay also charged higher ticketing fees for bookings on



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American flights than for bookings on other airlines. These improper fare tactics were not

disclosed to either actual or potential consumers. Despegar Uruguay also improperly shifted

bookings to and from non-affiliated travel agencies in order to book and ticket flights Despegar

Uruguay could not or to cause American Airlines to pay additional commission amounts to the

non-affiliated travel agencies in order to harm Americans business.




caused the Website to artificially inflate the air fares actually charged by American Airlines for

travel to or from Florida, and to or from other locations in the United States, by including in the

purported American fare amount a portion of a fee charged by Despegar Uruguay. This

additional fee was not separately disclosed to the potential or actual consumer on the Website at

any stagesearch, display, booking, or purchaseas being part of the fee actually charged by

Despegar USA and not by American. In this manner, Despegar Uruguay misrepresented the air

fare prices allegedly charged by American on the Website for many, if not all, of Americans

flights. These misrepresentations were made to actual or potential consumers who searched for

flights on routes for which American Airlines offered service. Upon information and belief,

Despegar Uruguay displayed these misrepresented air fare prices to thousands of actual or

potential consumers.

114.




also charged higher fees for many, if not all, bookings on American Airlines flights. Despegar



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Uruguay did not charge those same fees for tickets booked through the Website with other

carriers for similar travel. Upon information and belief, Despegar Uruguay charged higher

booking fees for American Airlines flights to thousands of consumers.

115.

By varying the fees in this manner, Despegar Uruguay improperly discriminated


Despegar Uruguay even touted a low fare guarantee on the Website.

116.

Despegar Uruguays scheme was blatant and notorious. Despegar Uruguay

harmed both the business reputation of American and diminished the value of the American

Airlines Marks.

117.

Potential consumers thus were being improperly diverted from American to other




118. Upon information and belief, at all times relevant to this lawsuit, Despegar

Uruguay had agreements with GDSs whereby additional volume booking incentives are paid to

Despegar Uruguay based on the volume of bookings completed through a particular GDS. These

agreements are believed to provide greater incentives to Despegar Uruguay for booking flights

on airlines that exclusively use the same GDS that provides the incentive to Despegar Uruguay.

Because American Airlines has relationships with multiple GDSs, by booking flights on

American, such bookings would not count toward the GDS volume incentives. Despegar

Uruguay thus has attempted to divert some consumers to airlines other than American in order to

maximize the incentive payments it would receive from a GDS.



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did not have a supplemental commission agreement with American (or because it sought a more

lucrative commission agreement) so it shifted many bookings for American Airlines flights to

travel agencies who have such authority and agreement. It did so in order to complete

unauthorized transactions and increase the commissions paid by American to these agencies

(whose identities are known to Despegar Uruguay). The exact number of bookings shifted by

Despegar Uruguay is known to Despegar Uruguay, but not to Plaintiff. Upon information and

belief, Despegar Uruguay improperly entered into arrangements with such agencies to obtain a

share of the supplemental commissions paid by American.

120.

Despegar Uruguays actions, individually or through its agents as described

above, constitute a false or misleading representation of fact in an advertisement/promotion on

the Website concerning American Airlines fares by wrongfully and falsely attributing to

American Airlines certain fare prices and fees as being charged by American when in fact that is

not the case.

121.

Alternatively, even if the information on the Website were literally true or

ambiguous, it has the tendency to mislead or deceive consumers. The information regarding fare

prices and fees on the Website is deceptive in the manner displayed to consumers and misleading

in context.

122. Despegar Uruguays representations regarding fare prices and fee information

relating to American as displayed on the Website has deceived and has a tendency to deceive

consumers by materially influencing each consumers air fare purchasing decision.



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123. Despegar Uruguays representations specifically solicit consumers in interstate

commerce.

124. Upon information and belief, Despegar Uruguay willfully and maliciously

modified the Website in the manner described above to misrepresent fare prices and fees as

retaliation for Americans decision not to offer Defendants a lucrative supplemental commission

agreement for ticketed fares.

125.

Despegar Uruguays actions have harmed and continue to harm American

Airlines and also its actual or potential consumers. Plaintiff has no adequate remedy at law.

126.

By virtue of their aforementioned acts, Despegar Uruguay has violated Section

43(a) of the Lanham Act, 15 U.S.C. 1125(a).

COUNT IV


(False Advertising Despegar Argentina)



128.














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Argentina but not to Plaintiff), and by using Americans Marks until American discontinued the

booking authority of the Authorized Despegar OTAs and filed this lawsuit, Despegar Argentina



Website. Additionally, Despegar Argentina also charged higher ticketing fees for bookings on


disclosed to either actual or potential consumers. Despegar Argentina also improperly shifted


Argentina could not or to cause American Airlines to pay additional commission amounts to the

brick-and-mortar travel agencies in order to harm Americans business.

130.


Argentina but not to Plaintiff), and by using Americans Marks until American discontinued the



travel to or from Florida, and to or from other locations, by including in the purported American

fare amount a portion of a fee charged by Despegar Argentina. This additional fee was not

separately disclosed to the potential or actual consumer on the Website at any stagesearch,

display, booking, or purchaseas being part of the fee actually charged by Despegar Argentina

and not by American. In this manner, Despegar Argentina misrepresented the air fare prices

allegedly charged by American on the Website for many, if not all, of Americans flights. These

misrepresentations were made to actual or potential consumers who searched for flights on

routes for which American Airlines offered service. Upon information and belief, Despegar



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Argentina displayed these misrepresented air fare prices to thousands of actual or potential

consumers.


Argentina but not to Plaintiff), and using Americans Marks until American discontinued the


also charged higher fees for many, if not all, bookings on American Airlines flights. Despegar

Argentina did not charge those same fees for tickets booked through the Website with other

carriers for similar travel. Upon information and belief, Despegar Argentina charged higher

booking fees for American Airlines flights to thousands of consumers.

132.

By varying the fees in this manner, Despegar Argentina improperly discriminated


Despegar Argentina even touted a low fare guarantee on the Website.

133. Despegar Argentinas scheme was blatant and notorious. Despegar Argentina

harmed both the business reputation of American and diminished the value of the American

Airlines Marks.





135.

Upon information and belief, at all times relevant to this lawsuit, Despegar

Argentina had agreements with GDSs whereby additional volume booking incentives are paid to

Despegar Argentina based on the volume of bookings completed through a particular GDS.

These agreements are believed to provide greater incentives to Despegar Argentina for booking



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flights on airlines that exclusively use the same GDS that provides the incentive to Despegar

Argentina. Because American Airlines has relationships with multiple GDSs, by booking flights

on American, such bookings would not count toward the GDS volume incentives. Despegar

Argentina thus has attempted to divert some consumers to airlines other than American in order

to maximize the incentive payments it would receive from a GDS.


Argentina but not to Plaintiff), and using Americans Marks until American discontinued the

booking authority of the Authorized Despegar OTAs and filed this lawsuit, because Despegar

Argentina did not have a supplemental commission agreement with American or because it

sought a more lucrative commission agreement, it was shifting many bookings for American

Airlines flights to travel agencies who have such authority and agreement. It did so in order to

complete unauthorized transactions and increase the commissions paid by American to these

agencies (whose identities are known to Despegar Argentina). The exact number of bookings

shifted by Despegar Argentina is known to Despegar Argentina, but not to Plaintiff. Upon

information and belief, Despegar Argentina improperly entered into arrangements with such

agencies to obtain a share of the supplemental commissions paid by American.

137.

Despegar Argentinas actions, individually or through its agents as described

above, constitute a false or misleading representation of fact in an advertisement/promotion on

the Website concerning American Airlines fares by wrongfully and falsely attributing to

American Airlines certain fare prices and fees as being charged by American when in fact that is

not the case.

138.

Alternatively, even if the information on the Website were literally true or

ambiguous, it has the tendency to mislead or deceive consumers. The information regarding fare



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prices and fees on the Website is deceptive in the manner displayed to consumers and misleading

in context.

139. Despegar Argentinas representations regarding fare prices and fee information

relating to American as displayed on the Website has deceived and has a tendency to deceive

consumers by materially influencing each consumers air fare purchasing decision.

140. Despegar Argentinas representations specifically solicit consumers in interstate

commerce.

141. Upon information and belief, Despegar Argentina willfully and maliciously

modified the Website in the manner described above to misrepresent fare prices and fees as

retaliation for Americans decision not to offer Defendants a lucrative supplemental commission

agreement for ticketed fares.

142.

Despegar Argentinas actions have harmed and continue to harm American

Airlines and also its actual or potential consumers. Plaintiff has no adequate remedy at law.

143. By virtue of their aforementioned acts, Despegar Argentina has violated Section

43(a) of the Lanham Act, 15 U.S.C. 1125(a).

COUNT V


(False Advertising Despegar Brazil)



145.









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146.


Brazil but not to Plaintiff), and using Americans Marks until American discontinued the

booking authority of the Authorized Despegar OTAs and filed this lawsuit, Despegar Brazil



Website. Additionally, Despegar Brazil also charged higher ticketing fees for bookings on


disclosed to either actual or potential consumers. Despegar Brazil also improperly shifted


Brazil could not or to cause American Airlines to pay additional commission amounts to the non-

affiliated travel agencies in order to harm Americans business.



booking authority of the Authorized Despegar OTAs and filed this lawsuit, Despegar Brazil


travel to or from Florida, and to or from other locations in the United States, by including in the

purported American fare amount a portion of a fee charged by Despegar Brazil. This additional

fee was not separately disclosed to the potential or actual consumer on the Website at any

stagesearch, display, booking, or purchaseas being part of the fee actually charged by

Despegar Brazil and not by American. In this manner, Despegar Brazil misrepresented the air



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fare prices allegedly charged by American on the Website for many, if not all, of Americans

flights. These misrepresentations were made to actual or potential consumers who searched for

flights on routes for which American Airlines offered service. Upon information and belief,

Despegar Brazil displayed these misrepresented air fare prices to thousands of actual or potential

consumers.



booking authority of the Authorized Despegar OTAs and filed this lawsuit, Despegar Brazil also

charged higher fees for many, if not all, bookings on American Airlines flights. Despegar Brazil

did not charge those same fees for tickets booked through the Website with other carriers for

similar travel. Upon information and belief, Despegar Brazil charged higher booking fees for

American Airlines flights to thousands of consumers.

149. By varying the fees in this manner, Despegar Brazil improperly discriminated


Despegar Brazil even touted a low fare guarantee on the Website.

150. Despegar Brazils scheme was blatant and notorious. Despegar Brazil harmed

both the business reputation of American and diminished the value of the American Airlines

Marks.







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152. Upon information and belief, at all times relevant to this lawsuit, Despegar Brazil

had agreements with GDSs whereby additional volume booking incentives are paid to Despegar

Brazil based on the volume of bookings completed through a particular GDS. These agreements

are believed to provide greater incentives to Despegar Brazil for booking flights on airlines that

exclusively use the same GDS that provides the incentive to Despegar Brazil. Because American

Airlines has relationships with multiple GDSs, by booking flights on American, such bookings

would not count toward the GDS volume incentives. Despegar Brazil thus has attempted to

divert some consumers to airlines other than American in order to maximize the incentive

payments it would receive from a GDS.

153.



booking authority of the Authorized Despegar OTAs and filed this lawsuit, because Despegar

Brazil did not have a supplemental commission agreement with American or because it sought a

more lucrative commission agreement, it was shifting many bookings for American Airlines

flights to travel agencies who have such authority and agreement. It did so in order to complete

unauthorized transactions and increase the commissions paid by American to these agencies

(whose identities are known to Despegar Brazil). The exact number of bookings shifted by

Despegar Brazil is known to Despegar Brazil, but not to Plaintiff. Upon information and belief,

Despegar Brazil improperly entered into arrangements with such agencies to obtain a share of the

supplemental commissions paid by American.

154. Despegar Brazils actions, individually or through its agents as described above,

constitute a false or misleading representation of fact in an advertisement/promotion on the

Website concerning American Airlines fares by wrongfully and falsely attributing to American



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Airlines certain fare prices and fees as being charged by American when in fact that is not the

cas

american airlines v. despagar - trademark complaint.pdf

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