Court orders TRO against site selling discount coupons for Northwest Airlines

Northwest Airlines, Inc. v. Bauer; 06 CV 086, D. North Dakota. Order granting temporary restraining order, December 15, 2006.

Plaintiff is Northwest Airlines, the 5th largest U.S. air carrier with a family of NORTHWEST marks. It offered special coupons called E-Certificates as a courtesy to passengers who suffer from delays or other service interruptions. The coupons at issue in the case were not intended to be sold, but could be transferred without cost. Recently, Northwest has reduced the availability and effectiveness of these coupons due to the actions of Defendant Bauer and those operating similar businesses.

Defendant Bauer operates a website at the domain where these e-certifcates can be purchased.

Northwest brought a case against Bauer alleging trademark infringement, dilution, and cyber squatting due to the operation of the above-referenced site by Bauer, as well as allegations of unlawful trade practices, deceit, conversion, and interference with business arising under the laws of North Dakota. Before the court was Northwest’s motion for a temporary restraining order.

The court ruled that Northwest was likely to succeed on the merits of its trademark infringement claims and granted the TRO. Since Bauer’s website contains the word NORTHWEST, it believed that consumers were likely to believe Bauer’s site was somehow authorized or endorsed by Northwest. Bauer was scheduled to appear on January 2, 2007 for a preliminary injunction hearing to show cause why the TRO should not extend for the life of the case.

Cyberlaw Central Commentary:
I believe the TRO should not have been issued. The court has placed too much emphasis on the fact that the website in question contains the word NORTHWEST. While Northwest could still win at trial, I believe the additional elements of the domain name, DISCOUNTCOUPONS, should have been sufficient for consumers to not be confused. The discount coupons are from Northwest, so Bauer should be able to argue nominative fair use of Northwest’s trademark in the domain name. We shall see how the preliminary injunction hearing goes before reserving judgment on the remainder of the case.

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