Designer Skin LLC v. S & L Vitamins, Inc., et al.
Travel Sites - Internet Library of Law and Court Decisions - Updated March 3, 2008
466 F.3d 558, No. 06-1506 (7th Cir., October 16, 2006)
Court holds Bahamian law governs Illinois resident's negligence action arising out of personal injuries sustained in a jet ski accident at a Bahamian resort, notwithstanding fact that plaintiff booked his trip by accessing resort's website via a computer in Illinois. This result is mandated by Illinois' conflict of law principles, which require a dispute to be governed by the law of the jurisdiction that has the "most significant relationship" to the events out of which the suit arose.
Civ. Action No. 4: 05-CV-249-HLM (N.D Ga., May 8, 2006)
Court denies defendants' motion to dismiss claims brought by municipalities in Georgia, charging defendant online travel services with improperly failing to remit excise taxes collected from motel guests in connection with their purchase of hotel accommodations. The Court also allowed plaintiffs to go forward with claims that defendants misled consumers by failing to apprise them that such collected excise taxes were not being remitted to the appropriate governmental authorities. The Court did dismiss claims plaintiffs brought to recover sales taxes allegedly due as a result of defendants' sales of hotel accommodations. The Court held that such claims could only be pursued by the Georgia Revenue Commissioner, who was not a party to this suit and had not yet made a determination that any such taxes had been improperly withheld by the defendants.
Civil Act. No. 05-40170-FDS (D. Mass., September 28, 2007)
Court holds plaintiff bound by a click-wrap agreement entered into by her travel companion with defendant Expedia Inc. (“Expedia”) when she purchased tickets and hotel accommodations on plaintiff’s behalf. The travel companion was acting as plaintiff’s agent, and by her acceptance of the agreement, bound plaintiff to its terms. As such, the Court dismissed plaintiff’s claims against Expedia for personal injuries sustained at the hotel she visited when her sandal broke, causing her to fall down stairs and into an ornamental pond, holding them barred by the liability disclaimer contained in the parties’ agreement. The Court further held that plaintiff’s claims against Expedia failed because it owed her no duty to warn of dangerous conditions that allegedly existed at the resort in question.
The Court did deny defendant Gap Inc.’s (“Gap”) motion for summary judgment, and allowed plaintiff to proceed with her claims that a defective sandal she purchased from Old Navy, owned by the Gap, failed, causing her to fall and sustain the injuries at issue. The Court rejected the Gap’s motion that such claims should be barred by application of the spoliation doctrine, as plaintiff had not preserved the sandal in question. The Court held plaintiff could not be held responsible for the absence of the sandal, as she had left it at the resort at the time of the injury, while she was rushed to the hospital, and was unable to locate it subsequently. Issues of fact as to whether the Gap actually manufactured the sandal in question would await trial for resolution.
Eurotech Inc. v. Cosmos European Travels Aktiengesellschaft
213 F. Supp.2d 612 (E.D. Va., July 24, 2002)
Court finds plaintiff guilty of trademark infringement and unfair competition in violation of the Lanham Act, and cybersquatting in violation of the Anticybersquatting Consumer Protection Act, as a result of its purchase and use in commerce of the domain name cosmos.com. Plaintiff’s use infringed the rights of defendant in its registered trademarks Cosmos and Cosmos Tourama, which were used by affiliated companies, through licenses, to promote and market travel and vacation tours. Plaintiff’s website featured information on travel tours provided by third parties. Plaintiff both purchased its domain, and began this use, after Cosmos European Travels had registered its mark, and commenced its use in commerce.
In finding that plaintiff’s conduct ran afoul of the Anticybersquatting Consumer Protection Act, the court found that plaintiff had acted with a bad faith intent to profit from its use of its mark. In reaching this result, the Court relied, in part, on the fact that plaintiff had failed to conduct a trademark search at the time it purchased the cosmos.com domain from a third party. Such a search, held the Court, would have made plaintiff aware of defendant’s rights in its mark, and its use in the travel industry. The Court also relied on the fact that plaintiff, after being conducted by consumers seeking defendant, offered for a fee to enter into various arrangements with defendant that would give it access to the cosmos.com domain. Said the Court:
In addition, the fact that plaintiff was now known as CosmosTravels.com, Inc., did not permit it to avoid a finding of bad faith., as this name change occurred only after the domain name at issue had been purchased. Said the Court “If such a name change could preclude a finding of bad faith, an entity could escape the effect of the ACPA simply by registering an infringing domain name and then changing its business name to match the infringing domain name.”
As a result of its determination, the Court directed plaintiff to transfer the cosmos.com domain to defendant.