the court document here.

Transcription

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CAUSE NO.
AMERICAN AIRLINES, INC.
017 26 B37 B
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PLAINTIFF,
v.
SUPERFLY
DEFENDANT.
y{r--
(A_TH JUDICIAL DISTRICT
ORIGINAL PETITION AND REQUEST FOR PERMANENT INJUNCTION
Plaintiff, American Airlines, Inc., ("American") files its Original Petition and Request
for a Permanent Injunction against Superfly and would respectfully show as follows:
I.
1.
Nature of the Action
American is one of the oldest, largest, and most well·known airlines in the world.
AAdvantage® is American's frequent flyer program designed to reward repeat customers and
build brand loyalty to the airline. It is one of the oldest and largest frequent flyer programs in the
world. AA.com® is the website American uses to communicate with its customers, including
AAdvantage® members, and enable customers to quickly and easily book travel on American.
2.
Superfly is a company that purports to use software to track an individual's
rewards points in various airline flight award programs, including AAdvantage®. In doing so,
Superfly misuses American's trademarks.
3.
American previously sued Superfly for, among other things, trademark
infringement. The petition in the prior litigation is attached hereto as Exhibit "A." In that
litigation, American alleged that Superfly improperly gathered and used information and data
about AAdvantage®
and AAdvantage® members,
and accessed AA.com® without
ORIGINAL PETITION AND REQUEST FOR A PERMANENT INJUNCTION
1537082_2
PAGE I
authorization. In short, Superfly was trying to build its business on the back of American's
reputation, its AAdvantage® program, and the AA.com® website.
4.
The prior litigation culminated in a written Settlement Agreement in which
Superfly agreed to: stop accessing, distributing, or displaying American data; stop using
American's intellectual property; and destroy all American data in its possession, custody or
control and certify to such destruction. A true copy of the Settlement Agreement is attached
hereto as Exhibit "B."
5.
Earlier this month, American learned that Superfly breached the Settlement
Agreement by continuing to infringe upon American's trademarks. For this reason, American
sent a cease-and-desist letter on September 13, 2013, followed up by emails on September 16,
19, and 23, 2013. True copies of the cease-and-desist Jetter and follow-up emails are attached
hereto as Exhibits "C," "D," "E," and "F." Superfly has refused to stop its illegal conduct.
American has no choice but to seek protection from this Court to stop Superfly from continuing
to breach the Settlement Agreement and injuring American's goodwill, reputation, and business.
II.
6.
Discovery Control Designation
American requests entry of a level three discovery control plan.
III.
7.
Parties
American 1s a Delaware corporation with its principal place of business in
Tarrant County, Texas.
8.
Superfly is an entity based in Israel.
Under the terms of the Settlement
Agreement, it may be served by mail sent to Superfly, 22 Lilienblum St., Tel Aviv, I.S.R.
1537082_2
PAGE2
IV.
9.
Jurisdiction and Venue
This Court has subject-matter jurisdiction over this case because the amounts in
controversy are within its jurisdictional limits.
I 0.
This Court also has personal jurisdiction because Superfly agreed in the
Settlement Agreement to personal jurisdiction in Texas.
In addition, Superfly breached a
contract entered into and governed by the laws of this State, and violated Texas statutory law in
this State. Superfly systematically did, and still does, conduct business in this State.
II.
Venue in this matter is proper in this County because Superfly agreed to venue
here in the Settlement Agreement. Venue is also proper under § 15.002 of the Texas Civil
Practice and Remedies Code. A substantial part of the activities, events, and damages giving rise
to this lawsuit occurred in this County. In addition, Superfly directs its commercial operations to
residents in Tarrant County, Texas.
V.
Facts
The Prior Litigation and Resulting Settlement Agreement
12.
American previously sued Superfly for, among other things, trademark
infringement. That litigation culminated in a written Settlement Agreement in which Superfly
agreed to stop accessing, distributing, or displaying American data; stop using American's
intellectual property; and destroy all American data in its possession, custody or control and
certify to such destruction. See Exhibit "B."
13.
Paragraph 3 of the Settlement Agreement prohibits Superfly from accessing,
distributing, or displaying American's valuable, proprietary data, unless it first seeks and obtains
American's permission. Specifically, paragraph 3 provides:
Superfly acknowledges that American's fare, route, schedule, and
availability data, AAdvantage program and member information,
1537082_2
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•
and American passenger and customer information ("American
Data") constitutes American's valuable property and that
unauthorized Access to, or Display or distribution of the American
Data is improper and unlawful. Superfly agrees that, unless it
has the advance written consent of American, it will not for
commercial purposes (i) collect, or facilitate the Access to or
collection of, AAdvantage® program information, including
member account data and information, or Passenger Name
Records ("PNR") from an American Passenger or
AAdvantage® member; (ii) Access, or facilitate the Access to,
AA.com in any way ... ; (iii) Access, distribute, or Display, or
facilitate the Access, distribution, or Display of, American Data
obtained or derived from AA.com, any other website, or any other
source; (iv) license, sell, or otherwise provide to any person or
entity any software or other device that is capable of accessing
AA.co, or of distributing or Displaying American Data; or
(v) assist, aid, or abet in any way the unauthorized Access of
AA.com or any other website or source, by any third party.
Exhibit "B" (emphasis added).
Superf/y's Breach of the Settlement Agreement
14.
Superfly has not sought American's prior written consent to access, distribute, or
display American's valuable, proprietary data, nor has American granted such permission.
15.
Superfly has breached and is continuing to breach the Settlement Agreement by
(a) logging into the Gmail, Yahoo! and AOL accounts of American's customers to access the
emails American sends that contain loyalty and itinerary data for its customers trips;
(b) displaying in Superfly's "Travel History" feature all current and historical travel emails from
American; (c) allowing AAdvantage members to manually enter their AAdvantage miles on the
Superfly website; (d) storing and displaying records of AAdvantage miles on Superfly's website;
and (e) maintaining an AAdvantage-branded Face book page titled "AAdvantage Elite."
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16.
Furthermore, in displaying American's data, Superfly is using American's
copyrights, trademarks, and service marks in violation of paragraph 2 of the Settlement
Agreement.
Superfly's Refusal to Cease its Wrongful Conduct
16.
American sent Superfly a demand letter demanding that Superfly immediately
cease and desist from the previously described conduct. Exhibit "C."
17.
In response to American's September 13, 2013 letter, Superfly stonewalled
American by denying any violations and asking for more specificity regarding the clear
violations called on it by American. See Exhibit "D" attached hereto. When American followed
up with more detail on September 16, Superfly again stonewalled American and asked for a
definition of "American data" - a term expressly defined in paragraph 3 of the Settlement
Agreement. See Exhibit "E" attached hereto.
18.
When American followed up with further support for its claim that Superfly was
in breach of the Settlement Agreement, Superfly feigned cooperation in an effort to stall
American from protecting its rights. See Exhibit "F" attached hereto. Superfly purported to
"stand behind the settlement" but simultaneously claimed that it was "not sure the word
'American' is AA property," essentially arguing that it was using the word American in a
generic, non-airline-specific sense. In fact, as Superfly knew, the drop-down menu on Superfly's
website under "American Personal" is specific to the AAdvantage program tiers (Gold, Platinum,
and Executive Platinum). The same is true for Superfly's dropdown menus for other well-known
airlines.
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VI.
A.
Causes of Action
Breach of Contract
19.
American repeats and realleges each and every allegation m the foregoing
paragraphs as if fully set forth herein.
20.
The Settlement Agreement is a valid agreement signed by and binding on
Superfly.
21.
Superfly has breached and is continuing to breach the Settlement Agreement by
(a) logging into the Gmail, Yahoo! and AOL accounts of American's customers to access the
emails American sends that contain loyalty and itinerary data for its customers' trips;
(b) displaying in Superfly's "Travel History" feature all current and historical travel emails from
American; (c) allowing AAdvantage members to manually enter their AAdvantage miles on the
Superfly website; (d) storing and displaying records of AAdvantage miles on Superfly's website;
and (e) maintaining an AAdvantage-branded Facebook page titled "AAdvantage Elite."
22.
Furthermore, in displaying American's data, Superfly is using American's
copyrights, trademarks, and service marks in violation of paragraph 2 of the Settlement
Agreement.
23.
American has been and will continue to be damaged as the result of Superfly's
breach of the Settlement Agreement.
24.
In addition, American has suffered and will continue to suffer imminent and
irreparable harm, and its remedy at law is not itself adequate to compensate it for injuries
inflicted by Superfly. Accordingly, American is entitled to injunctive relief.
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B.
Attorneys' Fees
25.
Plaintiff repeats and realleges each and every allegation in the foregoing
26.
The Settlement Agreement provides for the prevailing party in a suit over a
breach of the Settlement Agreement to recover its costs and expenses, including reasonable
attorneys' fees. American requests the recovery of its reasonable and necessary attorneys' fees
that are equitable and just under the Settlement Agreement, Tex. Civ. Prac. & Rem. Code
Section 38.001, and all other applicable Texas law.
VII.
27.
A.
Application for Permanent Injunction
American incorporates the allegations of all previous paragraphs herein.
Texas Law Allows Injunctive Relief in the Circumstances Presented Here.
i.
American Has Asserted a Valid Cause ofAction.
28.
To gain a permanent injunction, a plaintiff must allege a cause of action against
the defendant. American has alleged multiple breaches of the Settlement Agreement that would
entitle American to a permanent injunction.
ii.
American Has Established a Probable Right of Recovery Arising from
Superfly's Actions That Will Disrupt American's Operations, and Erode
American's GoodwilL
29.
A probable right of recovery is established "by simply alleging a cause of action
and presenting evidence which tends to sustain it." Miller Paper Co. v. Roberts Paper Co., 901
S.W.2d 593, 597 (Tex. App.-Amarillo 1995, no writ); see also Shoreline Gas, Inc., 2008 WL
1747624 at *4 (finding that claims for declaratory judgment and permanent injunction satisfy
this element). This element is met.
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30.
If American's application is not granted, harm is imminent because Superfly does,
and will likely continue to, improperly breach the Settlement Agreement by (a) logging into the
Gmail, Yahoo! and AOL accounts of American's customers to access the emails American sends
that contain loyalty and itinerary data for its customers' trips; (b) displaying in Superfly's
"Travel History" feature all current and historical travel emails from American; (c) allowing
AAdvantage members to manually enter their AAdvantage miles on the Superfly website;
(d) storing and displaying records of AAdvantage miles on Superfly's website; and
(e) maintaining an AAdvantage-branded Facebook page titled "AAdvantage Elite."
These
actions will cause serious damage to American, including but not limited to:
31.
•
Impair American's ability to properly operate AA.com®;
•
Impair American's ability to attract and serve its existing and potential
customers via AA.com®;
•
Decrease American's goodwill among the traveling public;
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Decrease American's ability to control and manage its business;
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Harm American's reputation;
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Confuse potential and existing customers;
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Erode American's contractual relationships; and
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Create an atmosphere by which other similarly situated business take
advantage of American's data, compounding these adverse consequences.
American seeks injunctive relief prohibiting Superfly from continuing to breach
the Settlement Agreement by (a) logging into the Gmail, Yahoo! and AOL accounts of
American's customers to access the emails American sends that contain loyalty and itinerary
data for its customers' trips; (b) displaying in Superfly's "Travel History" feature all current and
historical travel emails from American; (c) allowing AAdvantage members to manually enter
their AAdvantage miles on the Superfly website; (d) storing and displaying records of
1537082_2
PAGES
AAdvantage miles on Superfly's website; and (e) maintaining an AAdvantage-branded Facebook
page titled "AAdvantage Elite."
32.
Furthermore, in displaying American's data, Superfly is using
American's
intellectual property, specifically American's trademarks, in violation of paragraph 2 of the
Settlement Agreement.
33.
The evidence establishes that Superfly does and will continue to undertake these
actions- especially since this is the second time American has found it necessary to sue Superfly
to protect its intellectual property.
iii.
American Has Presented Evidence of a Probable Injury Arising from Superfly's
Actions.
34.
An injunction is proper when a probable injury exists for which there is no
adequate remedy at law. An adequate legal remedy is one that is as complete, practical and
efficient to the prompt administration of justice as is equitable relief. Khaledi v. H.K. Global
Trading, Ltd., 126 S.W.3d 273 (Tex. App.-San Antonio 2003, no pet.). A legal remedy is
inadequate if, among other things, damages are difficult to calculate or their award may come too
late.
See Cardinal Health Staffing, Inc. v. Bowen, 106 S.W.3d 230, 235-36 (Tex. App.-
Houston [1st Dist.] 2003, no pet.); TCBA Bldg. Co., Inc. v. Northwestern Resources Co., 890
S.W.2d 175 (Tex. App.-Waco 1994, no writ).
35.
The damages that American would suffer were Superfly to continue breaching the
Settlement Agreement by (a) logging into the Gmail, Yahoo! and AOL accounts of American's
customers to access the emails American sends that contain loyalty and itinerary data for its
customers' trips; (b) displaying in Superfly's "Travel History" feature all current and historical
travel emails from American; (c) allowing AAdvantage members to manually enter their
AAdvantage miles on the Superfly website; (d) storing and displaying records of AAdvantage
1537082_2
PAGE9
miles on Superfly's website; and (e) maintaining an AAdvantage-branded Facebook page titled
"AAdvantage Elite," would be difficult or impossible to fully measure and account for, and
would include damage to American's goodwill among its customers and the loss of existing and
potential customers that would be impossible to gauge.
36.
American therefore is at risk of imminent, irreparable injury if an injunction is not
entered because it has no adequate remedy at law.
37.
For the reasons set forth above, American respectfully prays that the Court, after
appropriate hearing and trial on the merits, grant a permanent injunction, respectively, providing
the relief sought herein.
VIII. Conditions Precedent
38.
All conditions precedent have been performed or have occurred as required.
REQUEST FOR RELIEF
For these reasons, Plaintiff American Airlines, Inc. respectfully requests that the Court:
a.
Find Superfly's acts as described herein constitute breaches of the Settlement
Agreement;
b.
Upon final trial of this matter, issue a permanent injunction order prohibiting
Superfly from continuing to breach the Settlement Agreement by (a) logging into
the Gmail, Yahoo! and AOL accounts of American's customers to access the
emails American sends that contain loyalty and itinerary data for its customers'
trips; (b) displaying in Superfly' s "Travel History" feature all current and
historical travel emails from American; (c) allowing AAdvantage members to
manually enter their AAdvantage miles on the Superfly website; (d) storing and
displaying records of AAdvantage miles on Superfly's website; (e) maintaining an
AAdvantage-branded Facebook page titled "AAdvantage Elite;" and (f)
displaying American's data, trademarks, copyrights, and service marks in
violation of paragraph 2 of the Settlement Agreement, or face contempt charges;
c.
Order Superfly to pay all damages of any kind or character to American as a
result ofSuperfly's wrongful conduct;
1537082_2
PAGEIO
d.
Order Superfly to account for their gains, profits, savings and advantages obtained
by Superfly as a result of their wrongful actions and disgorge those amounts to
American as restitution;
e.
Order Superfly to pay pre-judgment and post-judgment interest as may be allowed
by law;
f.
Order that Superfly be further found liable to American for its reasonable and
necessary attorneys' fees and all costs of court; and,
g.
Grant American such other and further relief to which it may be lawfully entitled,
whether at law or in equity.
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Respectfully submitted,
D
J. Kel y r.
State Bar No. 112 250
Toby M. Gallo y
State Bar No. 00790733
KELLY, HART & HALLMAN LLP
201 Main Street, Suite 2500
Fort Worth, Texas 76102
Phone: 817-332-2500
Facsimile: 817-878-9280
COUNSEL FOR AMERICAN AIRLINES, INC.
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CAUSE NO. 067-256404-11
PLAINTIFF,
v.
MILEWISE, INC.
DESKPORT TECHNOLOGIES, L.L.C.,
and SUPERLFY
DEFENDANTS.
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......
67TH JUDICIAL DISTRICT
SECOND AMENDED PETITION AND REQUEST FOR A PERMANENT INJUNCTION
Plaintiff, American Airlines, Inc., ("American") files its Second Amended Petition and
Request for a Permanent Injunction and would respectfully show as follows:
I.
1.
Nature of the Action
American is one of the oldest, largest, and most well-known airlines in the world.
AAdvantage® is American's frequent flyer program designed to reward repeat customers and
build brand loyalty to the airline. It is one of the oldest and largest frequent flyer programs in the
world. AA.com® is the website American uses to communicate with its customers, including
AAdvantage® members, and enable customers to quickly and easily book travel on American.
2.
Defendants DeskPort Technologies, LLC ("DeskPort''), and Superfly ("Superfly'')
(collectively "Defendants'') are new companies.
They purport to use software to track an
individual's rewards points in various airline flight award programs, including AAdvantage®. In
doing so, Defendants use American's trademarks. Defendants also gather and use infortnation
and data about AAdvantage® and AAdvantage® members, and improperly access AA.com®.
In short, Defendants are improperly trying to build their businesses on the back of American's
SECOND AMENDED PETmON AND REQ
1330480_1
EXHIBIT
J_ ...A<.-:.____
IN1UNCTJON
PAGEl
reputation, its AAdvantage® program, and the AA.com® website.
American sent each
Defendant a cease and desist letter, but they refused to stop all of their illegal conduct. American
has no choice but to seek protection from this Court to stop Defendants from injuring
American's goodwill, reputation, and business.
II.
3.
Discovery Control Designation
American requests entry of a level three discovery control plan.
III.
4.
Parties
American is a Delaware corporation with its principal place of business in Tarrant
County, Texas.
5.
Superfly is an entity based in Israel.
It may be served through the Hague
Convention at its address in Tel Aviv: 22 Lilienblurn St., Tel Aviv, I.S.R..
6.
DeskPort is an Indiana corporation with its principal place of business in Indiana.
DeskPort owns and operates an Internet website located at www.DeskPort.biz. DeskPort may be
served with process by serving the Texas Secretary of State, Statutory Documents Section Citations Unit, 1019 Brazos Street, Austin, Texas 78701 as its agent for service because
DeskPort engages in business in Texas but does not maintain a regular place of business in this
State or a designated agent for service of process of service, and this suit arose out of DeskPort's
business in Texas. Upon receipt of the process, the Secretary of State shall immediately mail a
copy of the process by certified mail, return receipt requested, to:
(i)
DeskPort's principal places of business at 11358 Talon Trace, Fishers, Indiana
46038;and
(ii)
DeskPort's registered agent- F. Harris Turner at 10803 Portside Ct., Indianapolis,
IN 46236.
1330480_1
PAGE2
IV.
7.
Jurisdiction and Venue
This Court has subject matter jurisdiction over this case because the amounts in
controversy are within its jurisdictional limits.
8.
This Court also has personal jurisdiction over the Defendants. All are business
entities that committed torts in this State, breached a contract entered into and governed by the
laws of this State, interfered with contracts entered into and governed by the laws of this State,
and violated Texas statutory law in this State. Defendants systematically did, and still do,
conduct business in this State. Defendants own and operate interactive websites that are clearly
used for business purposes, including entering into contracts with Texas residents and repeatedly
transmitting information to and from Texas residents.
The degree of interaction between
Defendants and their Texas customers is very high, with customers providing personal
information used by Defendants to contact others and then report information back to their Texas
customers. This is done on as frequent a basis as requested by the user. Moreover, American's
Texas-based computer system was systematically and repeatedly contacted by Defendants to
download data.
contacts.
American's claims against Defendants arise out of those computer-system
The injury Defendants' conduct inflicts on American is felt in this State, and
Defendants know that serious harmful effects from their conduct will occur here.
9.
Venue in this matter is proper in this County, pursuant to§ 15.002 of the Texas
Civil Practice and Remedies Code. A substantial part of the activities, events, and damages
giving rise to this lawsuit occurred in this County.
In addition, Defendants direct their
commercial operations to residents in Tarrant County, Texas.
Residents of Tarrant County
interact with Defendants by using their Internet websites.
1330480_1
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V.
10.
Background Facts
Over the last 75 years, Fort Worth-based American has grown to be one of the
largest commercial airlines in the world. In the decades that American has been offering air
transportation services under its name and related marks, it has developed substantial goodwill
with its customers by establishing itself as a professional company with reliable, high-quality
customer service.
American's AA.com® Website
11.
In 1995, American introduced its AA.com® website to enhance its
communications and relationships with customers and to offer an online vehicle for travel
planning, frequent flier account management, and the like.
12.
Since then, American has invested significant resources into AA.com®. It has
undertaken at least two extensive upgrades to allow ease of use, greater personalization, more
customer service resources, special offers to consumers, and enhanced information security.
American strives to make AA.com® a user-friendly website that displays fares quickly,
conveniently, and accurately. Consumers using the Internet often are assailed by disreputable
businesses attempting to perpetrate scams, and it is important to American that AA.com® is
perceived and functions as a secure website that customers can trust with their private travel
information.
13.
AA.com® is a proprietary website that consists of a privately-owned computer
system, including supporting servers, databases, routers, networks, bandwidth, computer
capacity, firewalls, and other equipment. The AA.com® servers are located in Texas. Through
AA.com®, American provides highly time-sensitive proprietary fares to its actual and potential
customers in an interactive format. Customers can shop for and book travel on AA.com® and
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perform a number of other activities, including management of frequent flier accounts and
check-in for flights.
American has invested substantial time and millions of dollars in
developing, marketing, and maintaining its proprietary computer system and website, the
proprietary fares contained in it, and the sophisticated functions that it performs, all for the
purpose of serving legitimate customers.
14.
To protect its valuable property, American makes its computer system, website,
and their proprietary contents available to consumers subject to terms and conditions of use,
which make clear that the system and information displayed is proprietary and owned by
American (the "Use Agreement"). The Use Agreement is referenced by an interactive link on
the AA.com® home page and on each successive page of the website. It provides the terms and
conditions by which users may access and use AA.com®. As the Defendants well know, such
agreements are widespread among companies conducting business on the Internet.
15.
The Use Agreement provides, "In return for gaining access to the Site and using
it, you agree to be bound by the following Agreement without limitation or qualification, so
please carefully review this Agreement before proceeding. If you do not intend to be legally
bound by these terms and conditions, do not access and use the Site."
16.
The Use Agreement also prohibits a number of activities:
a. Using AA.com® for commercial purposes;
b. Accessing a user's account through a third-party website;
c. Enabling an AAdvantage® member to access account information without
visiting the site;
d. Posting, sending, or disclosing American's confidential or proprietary
information;
e. Monitoring or copying the content on AA.com® using a manual or
automatic process without prior written consent;
1330480_1
PAGES
f.
Acting as an agent for a person that is not an immediate family member or
direct supervisor;
g. Acting as a mileage management service or tracking service;
h. Accessing information about an AAdvantage® member; and
1.
17.
Utilizing an AAdvantage® member's password or personal identification
number.
Anyone that accesses AA.com® is bound by the Use Agreement and agrees that
the contract is "entered into in Tarrant County, Texas," and that the Use Agreement will be
enforced under Texas law.
American's AAdvantage® Frequent Flyer Program
18.
American's AAdvantage® frequent flyer program is designed to develop
passenger loyalty and increase revenues by rewarding its best customers -- those who regularly
fly American. It is the oldest and most used frequent flyer program in the industry. Membership
is limited to individuals.
19.
The administration and operation of the AAdvantage® program involves multiple
computer systems and networks within American, including a system that stores records and data
relating to AAdvantage® members' accounts. American's proprietary computer systems are
utilized for each transaction involving AAdvantage® miles or credits. AAdvantage® members
may access their accounts either through American's customer service representatives or through
American's AA.com® website.
20.
In exchange for adhering to the AAdvantage® contract that sets out the rules
governing the program and its members, members accrue mileage credit by flying on American
or its partner airlines, staying at hotel partners, renting a car from a partner company, or by other
means. In consideration for accumulating specified amounts of mileage credit, members earn
award tickets for free travel on American or its partner airlines, upgrades to a higher class of
1330480_1
PAGE6
service, and other benefits. AAdvantage® award tickets and upgrades may be issued in any
name designated by the AAdvantage® member at the time the request is made.
21.
The AAdvantage® contract is made available to members and the public in
several written forms, including in the program application and on American's website,
AA.com®. The contract states that "only the member named on the account will be entitled to
access account information."
American's Trademarks
22.
To preserve and enhance its trademark rights, American has obtained numerous
federal trademark registrations for many of its trademarks ("American Airlines Marks"), the
overwhelming majority of which have been in continuous use for more than five years, including
but not limited to:
•
AMERICAN AIRLINES, U.S. Registration Nos. 514,294 and 1,845,693
(both stylized form). Registered, respectively, on August 23, 1949 for "air
transport of passengers and freight," based on first use in commerce in 1934;
and on April 26, 1994, for "clothing; namely, men's, women's and children's
shirts, T-shirts, caps, pants, jackets, shorts, sweat pants and sweatshirts,"
based on first use in commerce in 1987.
•
AMERICANAIRLINES, U.S. Registration No. 1,833,817 (stylized form).
Registered on May 3, 1994 for "note paper, memo pads, writing paper,
envelopes, date books, calendars, diaries, playing cards and writing
instruments; namely, pens and pencils," based on first use in commerce in
1987.
•
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.
•
A A, U.S. Registration Nos. 1,895,142, 1,905,580, and 2,695,030 (all in
stylized form). Registered, respectively, on May 23, 1995, for "beverage
containers; namely, mugs, porcelain mugs, porcelain tankards and beverage
glassware," based on first use in commerce in 1993; on July 18, 1995, for
"breastpins, brooches, precious metal money clips, and tie clips," based on
first use in commerce in 1993; and on March 11, 2003, for "providing an
arena facility for sports, entertainment, tradeshows, exhibitions and
conventions," based on first use in commerce in 2000.
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•
AA.COM®, U.S. Registration No. 2,339,639. Registered on April II, 2000,
for "transportation of passengers and cargo by air," based on first use in
commerce in 1998.
•
23.
AADVANTAGE®, U.S. Registration No. 2,187,483.
Registered on
September 8, 1998, for "providing air transportation services featuring a
program of bonus flights for frequent travelers," and for "promoting the goods
and services of others by means of an incentive awards programs, whereby
purchase points are awarded for purchase made from vendor subscribers,
which can then be redeemed for merchandise and travel," based on first use in
commerce in 1981.
American has common law rights to the American Airlines Marks in Texas by
virtue of the marks' eligibility for protection and American's status as senior user of the marks.
24.
The American Airlines Marks are unique and famous distinctive designations of
the source of American's various air transportation and other services.
25.
American 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 advertises through a variety of media, including television, radio, newspapers,
direct mail, and in telephone directories across the country.
26.
American also promotes its products and services on the Internet, via its own
websites and through advertising on the websites of third parties.
27.
Through American's actions, and because of widespread and favorable public
acceptance and recognition, the American Airlines Marks have become distinctive designations
of the source of origin of American's goods and services. The American Airlines Marks have
become uniquely associated with, and hence identify, American. These marks are assets of
incalculable value as symbols of American, its quality goods and services, and its goodwill.
28.
Accordingly, the American Airlines Marks have developed secondary meaning.
1330480_1
PAGES
Defendants' Wrongful Conduct
29.
Superfly owns and operates the Internet website www.superfly.com.
30.
DeskPort owns software that is used to power both downloadable software and
Internet websites, including www.MilePort.com and www.MileTracker.com.
31.
A user begins by creating an account with Defendants. Once the user creates an
account, the user can add each supported reward program. DeskPort and Superfly explicitly state
that they "support" the "American AAdvantage®" program.
32.
At the relevant times, an AAdvantage® member used Defendants' products by
entering the username and password assigned to him for accessing Defendants' websites.
Defendants then used the AAdvantage member's information to (i) contact AA.com (by
disguising themselves as individual users); (ii) obtain valuable data from American; and (iii) use
that information in their businesses.
The AAdvantage member's account information was
accessed, updated, and tracked by Defendants through their improper access to AA.com® for
each AAdvantage® member who creates an account with Defendants.
33.
Via this improper access, Defendants obtained data through AA.com® and then
they use the AAdvantage member's account information within the Defendants' website or
software program.
34.
In short, Defendants invade and use American's property without consent, in
violation of known rules, for their own commercial benefit and contrary to American's interests.
35.
In conducting their businesses, Defendants are improperly and without
American's authorization using American Airlines Marks (including American Airlines,
AmericanAirlines, AA, AA.com, and AAdvantage) on their websites.
1330480_1
PAGE9
Defendants' Refusal to Cease their Wrongful Conduct
36.
American sent Defendants cease-and-desist letters demanding they stop accessing
AA.com® and gathering and using AAdvantage® account information.
Accordingly,
Defendants know that their access to AA.com® was not authorized by American. Defendants
also have actual knowledge of the Use Agreement, and they know that their conduct violates that
agreement. Their actions are knowing and intentional.
VI.
A.
Causes of Action
Declaratory Judgment
37.
American repeats and realleges each and every allegation in the foregoing
38.
There is a justiciable controversy concerning the rights and obligations of
Defendants and their use of AA.com®, as well the use of AAdvantage® account information.
Specifically, American seeks to prevent Defendants from accessing AA.com® to retrieve
AAdvantage® account information for any AAdvantage member.
39.
There is not another pending case between American and Defendants by which
either party has requested a determination of these issues.
40.
All parties with an interest in the determination of these issues are parties to this
action. American and Defendants are parties to the Use Agreement. These are the only parties
in interested parties.
41.
Accordingly, American requests that the Court declare:
•
Access by DeskPort of AA.com® to retrieve AAdvantage® account
information violates the Use Agreement.
1330480_1
PAGEIO
B.
Breach of Contract
42.
43.
The AA.com® Use Agreement is a valid agreement binding on Defendants.
44.
Upon Defendants' use of AA.com®, they agreed to be bound by the terms of the
Use Agreement.
45.
By accessing AA.com® to obtain AAdvantage® account information for
commercial purposes and gain, without authorization by American, Defendants have breached
the Use Agreement. Defendants' activities also constitute other breaches of the Use Agreement,
including the prohibitions against:
a. Accessing a user's account through a third-party website;
b. Enabling an AAdvantage® member to access account information without
visiting the site;
c. Monitoring or copying the content on AA.com® using a manual or
automatic process without prior written consent;
d. Acting as an agent for a person that is not an immediate family member or
direct supervisor;
e. Acting as a mileage management service or tracking service;
f.
Accessing information about an AAdvantage® member; and
g. Utilizing an AAdvantage® member's password or personal identification
number.
46.
American has been and will continue to be damaged as the result of Defendants'
breach of the Use Agreement.
4 7.
irreparable harm, and its remedy at law is not itself adequate to compensate it for injuries
inflicted by Defendants. Accordingly, American is entitled to injunctive relief.
1330480_1
PAGE II
C.
Trademark Infringement Under State Law
48.
49.
American has common Jaw rights to the American Airlines Marks in Texas by
virtue of the marks' eligibility for protection and American's status as senior user of the marks.
50.
The acts of Defendants as described above create a likelihood of confusion and
constitute common law infringement of the famous American Airlines Marks, resulting in
damages and in imminent and irreparable injury to American.
51.
American has no adequate remedy at Jaw for such infringement of its common
Jaw trademark rights.
D.
Trademark Dilution Under State Law
52.
53.
American has common Jaw rights under Texas Jaw to the American Airlines
54.
The acts of Defendants as described above constitute dilution and dilute the
Marks.
distinctive quality of the famous American Airlines Marks, resulting in damage to American, to
its business reputation, to the uniqueness and individuality of the American Airlines Marks, and
to the substantial business and goodwill symbolized by the American Airlines Marks in violation
of TEXAS'S ANTI-DILUTION STATUTE, TEX. Bus. & COM. CODE§ 16.29.
55.
The acts of Defendants have caused damages to American. In addition, American
has suffered and will continue to suffer imminent and irreparable harm, and American has no
adequate remedy at law; and, therefore, is entitled to injunctive relief.
1330480_1
PAGE12
F.
Misappropriation Under State Law
56.
57.
American has created the goodwill, value, secondary meaning, and popularity of
the American Airlines Marks through extensive time, labor, skill, and money.
58.
Defendants used the American Airlines Marks to compete with American, thereby
gaining a special advantage and a "free ride" in that competition because Defendants are not and
have not been burdened with the expense incurred by American in developing the goodwill,
value, secondary meaning, and popularity of the American Airlines Marks.
59.
As a result of such conduct, American has been and will continue to be
commercially damaged because of consumer confusion as to the origin or sponsorship of the
products and services advertised through Defendants' website and software.
60.
irreparable harm, and its remedy at law is not itself adequate to compensate for injuries inflicted
by Defendants.
In the absence of an injunction, Defendants are likely to continue to
misappropriate AAdvantage® account information and use the American Airlines Marks.
Accordingly, American is entitled to injunctive relief.
61.
American has no adequate remedy at law for such appropriation of the American
Airlines Marks and American's data.
G.
Tortious Interference With Contract
62.
1330480_1
PAGE 13
63.
The AAdvantage® rules set forth the tenns of a contract between American and
AAdvantage® members and govern the use of AAdvantage® mileage credit and award tickets.
64.
At all material times, Defendants have known that the AAdvantage® rules
prohibit the access of specific account infonnation by someone other than the AAdvantage®
member.
65.
Defendants acted with a willful desire and intent to hinder and interfere with, and
is continuing to interfere with, American's contracts with AAdvantage® members by inducing
members to breach their contract by providing Defendants access to their AAdvantage® account
number, password, and other account infonnation.
66.
Defendants acted with a conscious desire to hinder, interfere with, change, and
burden these relationships or knew that such was certain or substantially certain to occur as a
result of its conduct.
67.
As a proximate result of Defendants' tortious interference, American has suffered
injury and damages.
68.
irreparable hann, and its remedy at law is not itself adequate to compensate for injuries inflicted
by Defendants. In the absence of an injunction, Defendants are likely to attempt to interfere with
American's contract rights with one or more of its authorized travel agents.
Accordingly,
American is entitled to injunctive relief.
H.
Money Had and Received
69.
1330480_1
PAGEI4
70.
American is the owner of all right and title to the American Airlines Marks. As a
result, American possesses the exclusive right, inter alia, to use, license, sell, and/or authorize the
use of the American Airlines Marks.
71.
American is also the owner of all right and title to AAdvantage® account
information, as well as AA.com® and all data contained or displayed therein.
72.
Contrary to American's exclusive rights, Defendants made commercial use of the
American Airlines Marks by displaying them on its website. In addition, Defendants make
commercial use of American's AAdvantage® account information, AA.com® and the data
contained or displayed therein.
73.
Defendants use this information to draw users to their website and in their
software, which allows the Defendants to earn money.
74.
As a result of its unlawful and unauthorized conduct, Defendants have obtained
money from by undue advantage, and holds money that in equity and good conscience belongs to
American.
75.
American has been, and absent injunctive relief will continue to be, irreparably
harmed by Defendants' actions.
76.
I.
American has no adequate remedy at law for Defendant's conduct.
Violation of Texas Computer Crimes Statute
77.
78.
Defendants have violated § 33.02 of the Texas Penal Code by knowingly, and
without effective consent, accessing AA.com®.
American has been harmed by this illegal
conduct.
1330480_1
PAGElS
79.
Pursuant to § 143.001 of the Texas Civil Practice and Remedies Code,
Defendants' knowing and intentional violation of the Texas Penal Code makes it liable for
harmful computer access of AA.com®.
J.
Trespass
80.
8 I.
Defendants have intentionally, and without authorization, accessed and interacted
with AA.com®. Access to AA.com® and the proprietary information contained in it is granted
only to those users who abide by the terms and conditions of the Use Agreement.
By
disregarding the terms and conditions of the Use Agreement, and American's known objections
to such activities, Defendants have unlawfully gained access to and interfered and intermeddled
with American's private property.
82.
Moreover, Defendants have used AA.com®'s capacity without permission to
enrich its business, depriving American of its own resources. If not stopped, Defendants will
increase their activities and create the risk that AA.com® will experience malfunctions and be
unable properly to provide service to legitimate customers of American.
83.
Defendants' conduct constitutes trespass that has harmed and will continue to
harm AA.com®. As a result, American has been and will continue to be damaged.
84.
irreparable harm, and its remedy at Jaw is not itself adequate to compensate it for injuries
inflicted by Defendants. Accordingly, American is entitled to injunctive relief.
1330480_1
PAGE16
K.
Attorneys' Fees
85.
Plaintiff repeats and realleges each and every allegation in the foregoing
86.
American requests the recovery of its reasonable and necessary attorneys' fees
that are equitable and just under TEX. CJV. PRAC. & REM. CODE sections 37.009 and 38.001 and
all other applicable Texas law.
VII.
87.
A.
Application for Permanent Injunction
American incorporates the allegations of all previous paragraphs herein.
Texas Law Allows Injunctive Relief in Circumstances Such Those Presented Here.
I.
American Has Asserted Several Causes of Action.
88.
To gain a permanent injunction, a plaintiff must allege a cause of action against
the defendant. American has alleged multiple causes of action against Defendants that would
entitle American to a permanent injunction.
2.
American Has Established a Probable Right of Recovery Arising from
Defendants' Actions That Will Disrupt American's Operations, and Erode
American's Goodwill.
89.
A probable right of recovery is established "by simply alleging a cause of action
and presenting evidence which tends to sustain it." Miller Paper Co. v. Roberts Paper Co., 901
S.W.2d 593, 597 (Tex. App.-Amarillo 1995, no writ); see also Shoreline Gas, Inc., 2008 WL
1747624 at *4 (finding that claims for declaratory judgment and permanent injunction satisfy
this element). This element is met.
90.
If American's application is not granted, harm is imminent because Defendants
do, and will likely continue to, improperly access AA.com®, access and use AAdvantage®
1330480_1
PAGE 17
account information, and display and use the American Airlines Marks. These actions will cause
serious damage to American, including but not limited to:
91.
•
Impair American's ability to properly operate AA.com®;
•
Impair American's ability to attract and serve its existing and potential
customers via AA.com®;
•
Decrease American's goodwill among the traveling public;
•
Decrease American's ability to control and manage its business;
•
Harm American's reputation;
•
Confuse potential and existing customers;
•
Erode American's contractual relationships; and
•
Create an atmosphere by which other similarly-situated business take
advantage of American's data, compounding these adverse consequences.
American seeks a declaration and injunctive relief prohibiting Defendants from
accessing AA.com®, accessing AAdvantage® account information, or using the American
Airlines Marks on their websites. The evidence establishes that Defendants do and will continue
to, undertake these actions. Defendants' actions threaten to disrupt American's operations as set
forth in this Petition generally and, more specifically, in the paragraph above.
3.
American Has Presented Evidence of a Probable Injury Arising from
Defendants' Threatened Actions.
92.
An injunction is proper when a probable injury exists for which there is no
adequate remedy at Jaw. An adequate legal remedy is one that is as complete, practical and
efficient to the prompt administration of justice as is equitable relief. Khaledi v. HK. Global
Trading, Ltd., 126 S.W.3d 273 (Tex. App.-San Antonio 2003, no pet.). A legal remedy is
inadequate if, among other things, damages are difficult to calculate or their award may come too
late.
See Cardinal Health Staffing, Inc. v. Bowen, 106 S.W.3d 230, 235-36 (Tex. App.-
1330480_1
PAGE 18
Houston [1st Dist.] 2003, no pet.); TCBA Bldg. Co., Inc. v. Northwestern Resources Co., 890
S.W.2d 175 (Tex. App.-Waco 1994, no writ).
93.
The damages that American would suffer if Defendants continue to improperly
access AA.com®, access and use AAdvantage® account information, and display and use the
American Airlines Marks would be difficult or impossible to fully measure and account for, and
would include damage to American's goodwill among its customers and the loss of existing and
potential customers that would be impossible to gauge.
94.
American therefore is at risk of imminent, irreparable injury if an injunction is not
entered because it has no adequate remedy at Jaw.
95.
For the reasons set forth above, American respectfully prays that the Court, after
appropriate hearing and trial on the merits, grant a permanent injunction, respectively, providing
the relief sought herein.
VIII. Conditions Precedent
96.
All conditions precedent have been performed or have occurred as required.
PRAYER
WHEREFORE,
PREMISES
CONSIDERED,
Plaintiff American
Airlines,
Inc.
respectfully prays that the Court:
a.
That, upon final trial of this matter, declare that Defendants' access of AA.com®
to retrieve AAdvantage® account information violates the Use Agreement;
b.
That, upon final trial of this matter, issue a permanent injunction order that
(i) requires Defendants to return to American all the data that Defendants have
acquired pertaining to American's AAdvantage® members and (ii) restrains
Defendants from accessing AA.com®, accessing AAdvantage® account
information, or using the American Airlines Marks on Defendants' website;
c.
That, upon final trial of this matter, find that Defendants interfered with the
contracts and prospective business relations of American, with a conscious desire
to hinder or prevent those business relationships;
1330480_1
PAGEI9
d.
That, upon final trial of this matter, find that Defendants misappropriated
American's confidential and proprietary information;
e.
That, upon final trial of this matter, find that Defendants infringed and diluted the
American Airlines Marks;
f.
That, upon final trial of this matter, find that Defendants breached the Use
Agreement;
g.
That, upon final trial of this matter, find that Defendants violated the Texas
Computer Crimes Statute by its wrongful access of AA.com®;
h.
That, upon final trial of this matter, find that Defendants trespassed on AA.com®;
1.
That, upon final trial of this matter, find that Defendants have obtained money
from by undue advantage, and hold money that in equity and good conscience
belongs to American
J.
That the Court order Defendants to pay all damages of any kind or character to
American as a result of Defendants' wrongful conduct;
k.
That the Court order Defendants to account for their gains, profits, savings and
advantages obtained by Defendants as a result of their wrongful actions and
disgorge those amounts to American as restitution;
I.
That the Court order Defendants to pay pre-judgment and post-judgment interest
as may be allowed by law;
m.
That Defendants be further found liable to American for its reasonable and
necessary attorneys' fees and all costs of court; and,
n.
That American be granted such other and further relief to which it may be
lawfully entitled, whether at law or in equity.
1330480_1
PAGE20
Respectfully submitted,
e .
r.
Bar No_.,....,u.
L. Berg
Scott R. Wiehle
KELLY, HART & HALLMAN LLP
201 Main Street, Suite 2500
Phone: 817-332-2500
Facsimile: 817-878-9280
COUNSEL FOR AMERICAN AIRLINES, INC.
1330480_1
PAGE21
SETTLEMENT AGREEMENT
This Senlement Agreement ("Senlement") is entered into by and between
American Airlines, Inc. ("American"), a Delaware corporation having its principal place of business
at 4333 Amon Carter Boulevard, Fort Worth, Texas 76 I55, and Superfly("Superfly"), an entitiy
based in Israel, which owns and operates an Internet website located at www.superfly.com.
Witnesseth:
Whereas, American instituted Civil Action
Airlines Inc. v. Milewise, Inc. on November 8, 2011, and
Superfly in the 67th District Court, Tarrant County, for the
injunctive relief and damages as described in the Second
Permanent Injunction ("Petition"); and,
No. 067-256404-11, entitled American
as amended May 14, 2012 to include
State of Texas, ("the Action") seeking
Amended Petition and Request for a
Whereas, American and Superfly (collectively referred to as "Parties") wish to
resolve and senle all disputes between them with respect to the Action and the facts underlying it;
Now, therefore, in consideration of the mutual promises and covenants contained
below and other good and valuable consideration, the receipt and sufficiency of such consideration
being hereby acknowledged, the Parties agree as follows:
I.
Unless the context clearly indicates to the contrary, the terms used below
shall have the following meanings:
(a)
"Access" shall mean using, accessing, entering, or utilizing a Party's website
by the other Party through any software, automated device, proxy device,
link, electronic device, retriever, or computer including, but not limited to,
desktop applications and plugins.
(b)
"AA.com" shall mean the website located at www.aa.com and any future
sites owned and operated by American that serve the same or similar
functions.
(c)
"Display" shall mean showing or exhibiting data either in its original form, in
an altered form, or as part of aggregated or consolidated data.
(d)
"Website" shall mean and refer to an Internet website together with all
hardware, servers, software, content, components, code and programs utilized
in connection with it.
(e)
"AAdvantage®" shall mean and refer to American's AAdvantage® Frequent
Flyer program.
2.
Superfly agrees that it will not use, facilitate or permit the use of American's
copyrights, trademarks, service marks, or trade dress in any Superfly website or product, unless it
has the advance written permission of American, unless such use is descriptive of and used fairly
f
esrr '
!-_;:::;.._--
and in good faith only to describe the goods or services of American. Moreover, unless it has the
advance written permission of American, Superfly shall not: (i) unless such uses are descriptive of
and used fairly and in good faith only to describe the goods or services of American, indicate any
affiliation, association, or other business relationship with American; (ii) indicate that American
endorses, sponsors, or approves of Superfly's products or services; (iii) unless such uses are
descriptive of and used fairly and in good faith only to describe the goods or services of American,
use American's trademarks or trade dress in any promotional or marketing material that Superfly
creates or uses; or (iv) unless such uses are descriptive of and used fairly and in good faith only to
describe the goods or services of American, use American's trademarks, service marks, or trade
dress in any Superfly website.
3.
Superfly acknowledges that American's fare, route, schedule, and availability
data, AAdvantage program and member information, and American passenger and customer
information ("American Data") constitutes American's valuable property and that unauthorized
Access to, or Display or distribution of, the American Data is improper and unlawful. Superfly
agrees that, unless it has the advance written consent of American, it will not for commercial
purposes (i) collect, or facilitate the Access to or collection of, AAdvantage® program information,
including member account data and information, or Passenger Name Records ("PNR") from an
American passenger or AAdvantage® member; (ii) Access, or facilitate the Access to, AA.com in
any way (including by use of any automated or electronic devices commonly known in the industry
as robots or spiders, or other electronic search devices); (iii) Access, distribute, or Display, or
facilitate the Access, distribution, or Display of, American Data obtained or derived from AA.com,
any other website, or any other source; (iv) license, sell, or otherwise provide to any person or entity
any software or other device that is capable of accessing AA.com, or of distributing or Displaying
American Data; or (v) assist, aid, or abet in any way the unauthorized Access of AA.com, or the
distribution or Display of American Data obtained or derived from AA.com or any other website or
source, by any third party. For purposes of clarity, the term "commercial purposes" does not
include, for example, activities such as occasional emails to colleagues regarding fares or travel
plans.
4.
Superfly agrees to destroy, and provide to American confirmation of the
destruction of, all information, records, data, and documents in Superfly's possession, custody, or
control, relating to any information, record, or data from or about any member of AAdvantage®,
including, but not limited to, each member's AAdvantage® number(s), login(s), and password(s).
5.
Superfly agrees that it will not collect or maintain, or facilitate the collection
or maintenance of, any information from AAdvantage® members about their membership in the
AAdvantage® program, including, but not limited to, each member's AAdvantage® number(s),
login(s), and password(s).
6.
Upon execution of this Agreement, the Parties hereby release and forever
discharge each other, their officers, directors, shareholders, successors (and the like) from all claims
(known or unknown) up until the date the Settlement Agreement is effective from any and all
causes of action, claims, demands, expenses, damages or losses of whatever kind or nature, arising
out of the Action or the facts underlying the Action, unless Superfly is found after the date of the
Settlement to be engaging in any prohibited conduct described herein. If Superfly breaches this
Settlement by engaging in any of the conduct prohibited herein, the Parties agree that American
shall be entitled to specific perfonnance as a remedy, and it may properly seek that remedy on an
expedited basis, in addition to any other remedies American may have at law or equity.
-2-
7.
After final execution of this Agreement, American promptly will take
appropriate measures to dismiss with prejudice the Action.
8.
This Settlement shall not be amended or revised except in writing signed by
all Parties. This Settlement contains the entire agreement of the Parties regarding the settlement of
their dispute and supersedes any prior oral or written agreements or understandings between the
Parties.
9.
This Settlement is entered into in the State of Texas, and it shall be
interpreted in accordance with and governed in all respects by the laws of the State of Texas,
without regard to conflict of laws principles. Any action to enforce this Settlement shall be brought
solely in any court of competent jurisdiction located in Tarrant County, Texas. Superfly hereby
agrees to personal jurisdiction in Texas and to service of process in Texas via mail sent to: Superfly,
22 Lilienblum St. Tel Aviv, I.S.R ..
I 0. In the event of a breach of this Settlement, the prevailing Party in any action
to enforce its rights shall be entitled to recover its costs and expenses, including reasonable attorney
fees.
II. Each Party has cooperated in the drafting and preparation of this Settlement,
and it shall be construed according to the plain meaning of its language and not for or against either
Party.
12. Each of the Parties acknowledges that it is entering into this Settlement
voluntarily. Each of the Parties represents and warrants that it is under no legal impediment to the
entry into and confirmation of this Settlement.
13. The obligations in this Agreement are binding upon any and all corporate
parents, subsidiaries, affiliates, agents, legal representatives, insurers, employees, officers, directors,
and owners of the Parties.
14. The Parties agree to keep the terms of this Settlement Agreement confidential
except: (a) where disclosure is required by law; or (b) where the information in question has
become publicly known without breach of this Agreement. Neither Party may issue any press
release or other public statement relating to this Agreement without the consent of the other Party.
Superfly
By:
Date:
_.!:?:'-I-/~1!.4-~..>::l=.c<>lc...:'-~----
/
-3-
0-t;
C> ~ ...~
Its: (Title at Superfl)
r''f
Mary.Ann Keller
From:
Sent:
To:
Cc:
Subject:
Attachments:
Dhanda, Priti <[email protected]>
Friday, September 13, 2013 4:47 PM
[email protected]
Heath, Alyssa
Superfly.com Cease & Desist
Superfly.com Cease & Desist Letter.pdf
Hello Jonathan,
Please note the attached letter, and confirm your adherence to this request by reply on this email.
Let me know if you have any questions.
Regards,
Priti Dhanda
AmericanAirllnes ~Priti Dhanda
Sr. Analyst Distribution Strategy
817.967.4080 Office
EXHIBIT
IC
American Airlines~
September 13, 2013
Johnathan Meiri
CEO
Superfly
22 Lillenblum Street
Tel Aviv, ISR
Dear Mr. Meiri:
It has come to the attention of American Airlines ("American") that Superfly is accessing, displaying and
distributing American data in violation of the Settlement Agreement between the parties dated August 8, 2012.
Specifically, according to Paragraph 3 of the Settlement Agreement:
Superfiy acknowledges that American's fare, route, schedule, and availability data, AAdvantage program
and member Information, and American passenger and customer information ("American Data")
constitutes American's valuable property and that unauthorized Access to, or Display or distribution of
the American Data Is improper and unlawful. Superfiy agrees that, unless it has the advance written
consent of American, it will not for commercial purposes (i) collect, or facilitate the Access to or collection
of, Mdvantage• program Information, including member account data and information, or Passenger
Name Records ("PNR") from an American Passenger or AAdvantage• member; (ii) Access, or facilitate the
Access to, AA.com In any way ... ; (iii) Access, distribute, or Display, or facilitate the Access, distribution, or
Display of, American Data obtained or derived from AA.com, any other website, or any other source; (iv)
license, sell, or otherwise provide to any person or entity any software or other device that Is capable of
accessing AA.co, or of distributing or Displaying American Data; or (V) assist, aid, or abet in any way the
unauthorized Access of M.com or any other website or source, by any third party.
Superfly did not and has not sought American's prior written consent to access, distribute or display American's
valuable, proprietary data, nor has American granted such permission. Furthermore, In displaying American's data
It appears Superfly is using American's intellectual property in violation of Paragraph 2 of the Settlement
Agreement. As such, American demands that Superfly immediately (1) cease and desist accessing, distributing or
displaying American data; (2) cease and desist using American's intellectual property; and (3) destroy all American
data in its possession, custody or control and certify to such destruction.
We request that you respond to this letter by September 20, 2013. If the matter is not resolved promptly,
American will take all the necessary steps to protect its valuable data and Intellectual property rights. This letter is
sent without waiving any of American Airlines' rights or remedies, all of which are expressly reserved.
I look forward to hearing from you and to successfully resolving this issue.
Sincerely,
s·
Cory Garner
Managing Director, Sales Operations and Distribution
American Airlines, Inc.
MaryAnn Keller
.From:
Sent:
To:
Cc:
Subject:
Heath, Alyssa <[email protected]>
Monday, September 16, 2013 8:53AM
Jonathan Meiri
Gamer, Cory; Dhanda, Priti
RE: Superfly.com Cease & Desist
Jonathan,
The Cease and Desist Letter outlines the violations of the Settlement Agreement, please refer to the
referenced Section 3 of the Settlement Agreement.
We demand that Superfly immediately (1) cease and desist accessing, distributing or displaying American data;
(2) cease and desist using American's intellectual property, and (3) destroy all American data in its possession,
custody or control and certify to such destruction.
This includes, but not limited to, the following actions:
1- Removing American from the list of programs supported by Superfly
2- Ceasing to access, display, and/or use American data from customer em ails
3- Destroying all American data in Superfly's possession, custody or control and certifying to such
destruction
Please confirm your adherence to this request by reply on this email.
Regards,
Alyssa
AmerlcanAirlines '\...
Alyssa Heath
Manager Distribution Strategy 1 Data Commercialization
817.967.3603 Office
From: Jonathan Meiri [mailto:[email protected]
Sent: Sunday, September 15, 2013 11:00 AM
To: Dhanda, Priti; Garner, Cory
Cc: Heath, Alyssa
Subject: Re: Superfly .com Cease & Desist
Cory and Priti,
I hope all is well. I received the note. Please be more specific regarding the violations you are
referring to.
As we agreed in the past, and nothing has changed on our side, we do not collect AAdvantage
credentials, we do not show AAdvantage
nor do we access/screen scrape aa.com in any way.
Thanks,
Jonathan
On Fri, Sep 13, 2013 at I I :46 PM, Dhanda, Priti <[email protected]> wrote:
Hello Jonathan,
Regards,
Priti Dhanda
AmerlcanAirllnes "-...
Priti Dhanda
817.967.4080 Office
2
NOTICE: This email and any attachments are for the exclusive and confidential use of the intended recipient(s).
lf you are not an intended recipient, please do not read, distribute, or take action in reliance upon this message.
If you have received this in error, please notify me immediately by return email and promptly delete this
message and its attachments from your computer.
Download Superfly Hotels or read Superfly press coverage on Techcrunch, TheNextWeb and Tnooz
skype: jonathanmeiri 1 twitter:@getsuperfly I mobile: +1.650.255.2080(US)/+972.544.668046(1L)
3
MaryAnn Keller
From:
Heath, Alyssa <[email protected]>
Thursday, September 19, 2013 3:32 PM
Jonathan Meiri
RE: Superfly.com Cease & Desist
Sent:
To:
Subject:
Jonathan,
Per the C&D American sent to Superfly on September 13th, please respond by tomorrow that Superfly has completed the
following:
1- Cease and desist accessing, distributing or displaying American data
a.
Remove the "American Personal" from the list of supported programs. Per the settlement you are not
allowed to collect American data regardless of the source- AA.com, user input, scraped from the emails
American sends our customers, and/or any other method.
b. Cease accessing, distributing, or displaying American's emails to our customers. This is American data
and per the settlement you are not allowed to access, distribute, or display this.
c. Cease any access, distribution, or display of American data
2- Cease and desist using American's intellectual property
a. Change the name of your Facebook page titled "AAdvantage Elite" and cease using any American marks
b. Cease and desist using any American intellectual property
3- Destroy all American data in its possession, custody or control and certify to such destruction
Per the Settlement Agreement you signed on July 30 2012, American Data is defined as "fare, route, schedule, and
availability data, AAdvantage program and member information, and American passenger and customer information."
Attached is the Settlement Agreement you signed.
Regards,
Alyssa
AmericanAirllnes ~Alyssa Heath
817.967.3603 Office
From: Jonathan Meiri [mailto:[email protected]]
Sent: Thursday, September 19, 2013 11:22 AM
To: Heath, Alyssa
Subject: Re: Superfly.com Cease & Desist
Hi Aslyssa - see comments below
On Man, Sep 16,2013 at 3:53PM, Heath, Alyssa <[email protected]> wrote:
Jonathan,
£
!he Cease and Desist letter outlines the violations of the Settlement Agreement, please refer to the
We demand that Superfly immediately {1) cease and desist accessing, distributing or displaying American data;
{2) cease and desist using American's intellectual property, and (3) destroy all American data in its possession,
custody or control and certify to such destruction.
Neither American Airlines nor AAdvantage are listed
2- Ceasing to access. display, and/or use American data from customer emails
Users have granted us access to their email in order to help organize it. We do not have any
specific provisions for emails from aa.com or other AA domains.
3- Destroying all American data in Superfly's possession, custody or control and certifying to such
destruction
Please be more specific. What exactly do you mean by "American data".
Finally, we've been working productively with many US domestic as well as international airlines, in
fact our entire business model is based on our airline relationships. I suggest jumping on a call and
seeing how we can find creative ways to work together rather than communicate through C&D
letters.
Thanks,
Jonathan
Regards,
Alyssa
2
AmericanAirlines "'-·
Alyssa Heath
Manager Distribution Strategy I Data Commercialization
817.967.3603 Office
From: Jonathan Meiri [mailto:[email protected]]
To: Dhanda, Priti; Garner, Cory
Cc: Heath, Alyssa
Subject: Re: Superfly .com Cease & Desist
Cory and Priti,
referring to.
credentials, we do not show AAdvantage logo, nor do we access/screen scrape aa.com in any way.
Thanks,
Jonathan
On Fri, Sep 13, 2013 at II :46 PM, Dhanda, Priti <[email protected]> wrote:
Hello Jonathan,
3
Please note the attached letter, J!l-tltlnfirm your adherence to this request
R!f-Jl:ply on this email.
; Let me know if you have any questions.
Regards,
Priti Dhanda
AmerlcanAirlines '\....
Priti Dhanda
817.967.4080 Office
NOTICE: This email and any attachments are for the exclusive and confidential use of the intended
recipient(s). If you are not an intended recipient, please do not read, distribute, or take action in reliance upon
this message. If you have received this in error, please notify me immediately by return email and promptly
delete this message and its attachments from your computer.
4
skype: jonathanmeiri 1 twitter:®getsuperfly I mobile: +1.650.255.2080(US)/+972.544.668046(ll)
skype: jonathanmeiri 1 twitter:®getsuperfly I mobile: +1.650.255.2080(US)/+972.544.668046(1l)
5
Mary Ann Keller
'From:
Jonathan Meiri <[email protected]>
Saturday, September 21, 2013 7:14 PM
Heath, Alyssa
Re: Superfly.com Cease & Desist
Sent:
To:
Subject:
Alyssa,
We stand behind the settlement. I'll need to check with our lawyers regarding some of the finer
issues. See details below.
Thanks,
Jonathan
On Thu, Sep 19,2013 at 9:31PM, Heath, Alyssa <Alyssa.Heathlalaa.com> wrote:
Jonathan,
Per the C&D American sent to Superfly on September 13'', please respond by tomorrow that Superfly has completed the
following:
1-
Cease and desist accessing, distributing or displaying American data
a. Remove the "American Personal" from the list of supported programs. Per the settlement you are
not allowed to collect American data regardless of the source- M.com, user input, scraped from the
emails American sends our customers, and/or any other method.
Not sure the world 'American' is AA property.
I'll need to check with our lawyers.
b. Cease accessing, distributing, or displaying American's emails to our customers. This is American
data and per the settlement you are not allowed to access, distribute, or display this.
I'll need to check with our lawyers regarding the use of email. This is a 'hands free'
service. Meaning there is nothing specific for American Airlines that we impliment here.
c.
2-
Cease any access, distribution, or display of American data
Cease and desist using American's intellectual property
a. Change the name of your Face book page titled "AAdvantage Elite" and cease using any American
marks
This community is run mostly ~embers. We're happy to give yoJ-.I:!!htrol of this property, it has
very !imited use for us. I'll also check with fb regarding changing th name. Either worts for us.
b.
3-
Cease and desist using any American intellectual property
Destroy all American data in its possession, custody or control and certify to such destruction
Per the Settlement Agreement you signed on July 30 2012, American Data is defined as "fare, route, schedule, and
availability data, AAdvantage program and member information, and American passenger and customer information."
If we have fare information, we will remove it. Not sure how it got back into our meta search
results.
Attached is the Settlement Agreement you signed.
Regards,
Alyssa
American Airlines~-
Alyssa Heath
817.967.3603 Office
Sent: Thursday, September 19, 2013 11:22 AM
To:
Heath, Alyssa
Hi Aslyssa - see comments below
2
•
On Mon, Sep 16,2013 at 3:53PM, Heath, Alyssa <Alyssa.HeatMilaa.com> wrote:
Jonathan,
The Cease and Desist Letter outlines the violations of the Settlement Agreement, please refer to the
We demand that Superfly immediately (1) cease and desist accessing, distributing or displaying American
data; (2) cease and desist using American's intellectual property, and (3) destroy all American data in its
possession, custody or control and certify to such destruction.
Neither American Airlines nor AAdvantage are listed
2- Ceasing to access, display, and/or use American data from customer emails
Users have granted us access to their email in order to help organize it. We do not have any
specific provisions for emails from aa.com or other AA domains.
3- Destroying all American data in Superfly's possession. custody or control and certifying to such
destruction
Please be more specific. What exactly do you mean by "American data".
Finally, we've been working productively with many US domestic as well as international airlines,
in fact our entire business model is based on our airline relationships. I suggest jumping on a call
and seeing how we can find creative ways to work together rather than communicate through C&D
letters.
Thanks,
Jonathan
3
Regards,
Alyssa
'
'
AmerlcanAirlines \...
Alyssa Heath
Manager Distribution Strategy I Data Commercialization
817.967.3603 Office
To: Dhanda, Priti; Gamer, Cory
Cc: Heath, Alyssa
Cory and Priti,
referring to.
credentials, we do not show AAdvantage logo, nor do we access/screen scrape aa.com in any
way.
Thanks,
4
Jonathan
•
I I
. I
..i
On Fri, Sep 13,2013 at 11:46 PM, Dhanda, Priti <Priti.Dhanda(@.aa.com> wrote:
Hello Jonathan,
Regards,
Priti Dhanda
· AmerlcanAirlines ~Priti Dhanda
817.967.4080 Office
5
•
Download Suoerfly Hotels or read Superfly press coverage on Techcrunch, TheNextWeb and Tnooz
skype: jonathanmeiri I twitter:@getsuperfly I mobile: +1.650.255.2080(US)/+972.544.668046(1L)
skype: jonathanmeiri 1 twitter:@getsuoerfly 1 mobile: +1.650.255.2080(US)/+972.544.668046(1L)
6
NOTICE: This email and any attU~Mtents are for the exclusive and
use of the intended
-recipient(s). If you are not an intended recipient, please do not read, distribute, or take action in reliance upon
thi-s message. If you have received this in error, please notify me immediately by return email and promptly
·delete this message and its attachments from your computer.
contictMIII1
skype: jonathanmeiri 1 twitter:®getsuperfly 1 mobile: +1.650.255.2080(US)/+972.544.668046(1L)
7
KELLY tJl HART
TELEPHONE: (817) 878-3501
FAX: (817) 878-9280
ThBYM. GALLOWAY
rohy gallowm&ke/!vhart. com
September 24,2013
Thomas A. Wilder, District Clerk
Tarrant County Justice Center
40 I West Belknap, 3rd Floor
Re:
017 2 6 8 37 8 13
American Airlines, Inc. v. Superjly
Dear Mr. Wilder:
Enclosed for filing is the original and multiple copies of an Original Petition, along with a
firm check in the amount of$277.00 in payment of the filing fee for the petition and preparation
of one citation. Please file the original and return file-marked copies to this office. Please also
prepare a citation for the defendant Superjly.
Thank you for your attention to this matter.
Best regards,
T~:~
Enclosures
--<
00390.0447
-l
1537235_1
Kelty Hart & Hallman, a Limited Liability Partnership I www.kellyhart.com

the court document here.

Transcription

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