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Flair Airlines Ltd. v. Gregor LLC

United States District Court, N.D. Illinois, Eastern Division

June 25, 2019

Flair Airlines, Ltd., Plaintiff,
v.
Gregor LLC, Vacabo Services, LLC, Dusan Milisevic, and Froska Miteva, Defendants.

          MEMORANDUM OPINION AND ORDER

          Ronald A. Guzmán, United States District Judge.

         For the reasons stated below, Flair's motion for summary judgment [195] is denied. The parties are directed to appear for a status hearing on July 9, 2019 at 9:30 a.m. in order to set a trial date.

         STATEMENT

         Facts

         The Court assumes familiarity with the facts of the case and sets forth relevant facts as necessary in the text of the analysis. As brief background, the instant case grew from a poorly-documented and hastily-conceived business relationship between Plaintiff Flair Airlines, Ltd. (“Flair”) and Defendants (in particular, Dusan Milisevic and Gregor, LLC) to essentially build a commercial airline. The lack of an express formal structure for the relationship between the parties has led to the instant dispute. Flair moves for summary judgment on its claim of cybersquatting and all of Defendants' state-law counterclaims. Because of the numerous disputed facts, summary judgment is inappropriate.

         Standard

         Summary judgment is appropriate where a “movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). At this stage, “[a]ll justifiable inferences are drawn in favor of the non-moving party.” Giles v. Godinez, 914 F.3d 1040, 1048 (7th Cir. 2019) (citing Anderson, 477 U.S. at 255).

         Analysis

         A. Plaintiff's Cybersquatting Claim

         While most of the facts in this case are not agreed upon, it is undisputed that at some point in 2017, Gregor, LLC acquired the Flair Domain Names[1] (“FDN”) with Flair's knowledge. While Flair asserts that Defendants were told to register the FDN under Flair's name, they did not. In January 2018, when the parties' relationship ended, Defendants, as parties to the purported joint venture, claimed at least partial ownership of the FDN and demanded that Flair pay them prior to turning the FDN over to Flair. Flair then filed suit against Defendants for violations of the Anticybersquatting Protection Act, 15 U.S.C. § 1125(D)(1) (“ACPA”), seeking the immediate transfer of the FDN from Defendants to Flair. According to Flair, “[b]y holding the subject web domains as leverage for their payment demands, Defendants unquestionably violated the [ACPA].” (Pl.'s Mem. Supp. Mot. Summ. J., Dkt. # 196, at 1.)

         To establish its cybersquatting claim, Flair must show that: “(i) it had a distinctive or famous mark at the time Defendants registered the domain name; (ii) Defendants registered, trafficked in, or used a domain name that is identical or confusingly similar to Plaintiffs' mark; and (iii) Defendants acted with bad faith to profit from that mark.” Box Acquisitions, LLC v. Box Packaging Prods., LLC, 32 F.Supp.3d 927, 939-40 (N.D. Ill. 2014). Assuming arguendo that the first two elements are met, summary judgment is precluded based on the bad-faith element. Pursuant to the ACPA:

         In determining whether a person has a bad faith intent described under subparagraph (A), a court may consider factors such as, but not limited to-

(I) the trademark or other intellectual property rights of the person, if any, in the domain name;
(II) the extent to which the domain name consists of the legal name of the person or a name that is otherwise commonly used to identify that person;
(III) the person's prior use, if any, of the domain name in connection with the bona fide offering of any ...

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