Virgin America is Dead, Long Live Virgin America’s MarksApr 10, 2017 IP Legal Forum
[Note: The last paragraph of this post was revised slightly on 4/13/2017, including adding the footnote.]
A lot happened in 2016. The first thing that comes to my mind as the unexpected event of 2016 is Alaska Airlines’ acquisition of Virgin America. At first glance, Alaska and Virgin didn’t seem to have that much in common. Alaska is the introvert: it’s a well-established airline that likes to stay close to home on the West Coast. Virgin is the fun, upstart newcomer that likes to explore new places around the country. With the acquisition, Alaska will now be able to tap into Virgin’s loyal customer base all throughout the United States.
Although Alaska completed its acquisition of Virgin in December 2016, there were no immediate, significant changes to either of the airlines. However, last week, Alaska Airlines announced that it intended to retire the Virgin America name and logo in 2019. Presumably, the entirety of the Virgin America brand – color schemes, uniforms, in-flight entertainment, frequent flyer program, and everything else, will be phased out as well. Alaska intends to implement new flight attendant uniforms and a redesigned cabin interior would be introduced to all its flights in the next few years.
What’s going to happen to Virgin America’s registered trademarks and servicemarks? Under federal law, a mark is deemed to be abandoned if its use has been discontinued (generally for at least 3 consecutive years) and there is intent not to resume its use. The owner of an abandoned mark won’t be able to protect against use of the mark by others. This means that third parties can use the mark, or even register the mark for themselves.
In Virgin America’s case, Alaska has already publicly expressed its intention to retire the Virgin America name and logo. While the term “retirement” may be thrown around loosely by some (see e.g. Jay-Z, Barbara Streisand and Michael Jordan), in this context, it seems synonymous with abandonment. Alaska’s announcement suggests that it will discontinue all use of the Virgin America marks by 2019 as part of its comprehensive rebranding process. If the Virgin America marks are deemed “abandoned,” it opens up the possibility for other parties (or Virgin America’s founder, Sir Richard Branson) to use and register the Virgin America marks – or maybe even start a new Virgin America airline.¹ While Virgin America, the company, may no longer be around, its marks may live on.
¹ Although third-party use of an abandoned “Virgin America” mark could infringe upon other Virgin marks still owned by Branson or his holding company, Branson himself could potentially revive the Virgin America brand, depending on the terms of the Alaska/Virgin buyout agreement.