New TLD Trademark Infringement Case
Kayak Software Corp. (Concord, MA) has sued an individual residing in Las Vegas, NV for trademark infringement, cybersquatting, and tortious interference as well as for a declaratory judgment of non-infringement of the individual’s mark. The marks in dispute are KAYAK and KAYAK ANGLING.
The plaintiff alleges use of KAYAK since 2004 for travel related searching and travel agency services through its website <kayak.com> and asserts a number of registrations (including several for goods and services not exactly lined up with either the primary use of either plaintiff or defendant). The defendant owns a registration in KAYAK ANGLING and has published a magazine and other materials relating to kayaking, canoeing, and fishing using its mark since 2005. The defendant purportedly owns <kayak.travel> which presently redirects to <alaskakayak.com> which offers, not surprisingly, kayak tours in Alaska.
Plaintiff’s entire affirmative trademark / cybersquatting case relies on defendant’s use of <kayak.travel>. I think the plaintiff may be stretching on this one. I doubt Kayak Software can prevent someone from offering travel services involving kayak trips, even if the offer does involve a computer. Worth noting is that this is the first D. Mass. case I’ve noticed with the <.travel> top level domain.
The DJ and tortious interference claims result from threats defendant purportedly made after Kayak Software filed for a potential initial public offering.
After learning of the possible IPO, defendant’s counsel sent a letter accusing Kayak Software of infringing defendant’s KAYAK ANGLING mark through the use of <kayak.com>. The letter led to a back and forth of “did not” / “did so” until the defendant threatened a pro se action for trademark infringement against the plaintiff and 100 John Does (which the complaint says was a threat against the plaintiff’s potential investors). Kayak Software took that letter as the starting gun in the race to the courthouse and filed this complaint the next day.
Kayak Software Corp. v. King, 11-10383-WGY (D. Mass. Mar. 4, 2011)
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