Wednesday, June 11, 2008

MGM’s “The Signature” Condo-Hotel goes after unit owner for trademark infringement

On June 20, 2008, MGM Grand Hotel, LLC (“MGM”) and Signature Condominiums, LLC (“Signature” and together with MGM, the “Plaintiffs”) filed a trademark infringement lawsuit in the U.S. District Court for the District of Nevada against an individual named Jarrett Curd. See MGM Grand Hotel, LLC et al v. Curd, Case No. 08-cv-00753 (D. Nev). A copy of the complaint can be downloaded here.

The Signature at MGM Grand

Signature manages the three tower condominium-hotel project gracing the Las Vegas skyline known as "The Signature at MGM Grand.” (“The Signature”). MGM owns a federal trademark registration for the design mark THE SIGNATURE AT MGM GRAND (pictured below) (the “Signature Logo”).

For those not familiar with the condo-hotel concept, condo-hotel units, such as those at The Signature, are traditional condominium units in that they are privately owned. However, the owners of these condo-hotel units also have the option of making their units available to be booked as hotel rooms by, in the case of units at The Signature, MGM-Mirage (the owner of the MGM Grand Hotel & Casino) through the MGM Mirage Central Reservation Service – the same service that all MGM Mirage hotel properties use to make their hotel rooms available for guest booking. These condo-hotel units are available for booking through such Global Distribution Service (“GDS”) providers, such as Sabre, Amadeus, Apollo, Worldspan and Pegasus. For those owners who choose to have their units booked as hotel rooms, Signature handles the management of the room during the duration of the guest’s stay (e.g. check-in/check-out, maid service, maintenance, etc.). The revenue generated is then shared by Signature and the unit owners. Unit owners do not have to use the MGM Mirage Central Reservation Service and can make their condos available for booking through other means, so long as they pay a so-called “transient service fee.”

Curd allegedly owns one or more units in The Signature. According to the complaint, Curd independently offers his units at The Signature for booking by guests using the business name “Owners Suites at Signature MGM Grand." Curd also acquired the domain name, which now simply forwards to the Curd’s current website -- (although it may not have at the time). It should be noted that Curd’s current website does not actually use the whole name “Owners Suites at Signature MGM Grand" (probably after advice from counsel), but instead uses “Owners Suites® at Signature” (a name which has its own problems, but I will address that later).

Plaintiffs maintain that this domain name is likely to cause confusion as to the source or origin of Curd's services or as to an affiliation or relationship with Signature or as to Signature's sponsorship or approval of Curd's services. Plaintiffs also maintain that Curd’s website “emulates the look and feel of the official web site for The Signature.” [Comment: hmmm, judge for yourself, although it’s possible his older website may have looked more similar, but protectable trade dress?]

What makes this case a little more interesting are the allegations that Curd sometime around November 26, 2007, sent a letter to the aforementioned GDS partners on letterhead bearing the Signature Logo, without the knowledge or consent by Signature, stating in part the following:

Please be advised that effective immediately, The Signature at MGM Grand,Las Vegas, Nevada will no longer be represented by MGM/Mirage (MV)Central Reservation Services. This hotel will now be represented by InnLink Central Reservation Services as Owners Suites at Signature MGM.

ven more, Curd provided MGM MIRAGE’s GDS property codes and chain code to enable the GDS providers to change these codes. Curd supposedly signed the letter as President of Signature. Someone at InnLink later followed up with the GDS partners regarding the new codes, the result of which is that travel agents could not for some period of time use the GDS system to book rooms at The Signature.

After Signature realized what had happened, Plaintiffs’ counsel, on December 21, 2007, sent a cease and desist letter to Curd demanding that he stop his conduct, stop using the name “Owners Suites at Signature MGM Grand,” take down his website and transfer the ownership of to MGM. When Curd responded to Plaintiffs’ counsel on December 29, 2007, he claimed that the changing of the reservation codes was a “misunderstanding.” Shortly thereafter, Curd deactivated the website (although now it forwards to Curd’s other website).

Since that time, Signature has apparently received several complaints from customers who booked a unit at The Signature through Curd and his website. Curd supposedly told one guest that Curd would pay for all service charges during the customer’s stay; however, the guest was ultimately charged for such services and the guest informed Signature representatives that Curd’s practices do not “look good” for Signature. In May, Signature supposedly received another complaint from a customer who had booked a room at The Signature from a "Jonathan Jared” although the actual unit was owned by Curd. On May 29, 2008, another guest showed up at The Signature who said that he had booked a unit through Curd’s website; however, Signature had no record of the reservation and Curd’s unit had already been booked. Plaintiffs, without citing any evidence, also maintain that Curd is offering to book units that he does not own and is booking units without paying the required transient service fees to Signature.

Plaintiffs allege that Curd's conduct has injured and is likely to continuing injuring the goodwill and reputation of Signature and MGM’s mark. Plaintiffs’ causes of action are for registered trademark infringement, unfair competition, false advertising, trade dress infringement, common law trademark infringement and unfair competition, and intentional interference with a prospective economic advantage. Plaintiffs seek injunctive relief, the usual damages (compensatory, punitive, exemplary, statutory, treble, and all other damages), costs and attorneys’ fees.

Vegas™Esq Comments:
Interestingly, the first thing I notice upon viewing Curd’s website was not the references to Signature, MGM, or even any kind of similarity with Signature’s website – what I noticed was the following: “Owners Suites® at Signature.” I checked the U.S. Patent and Trademark Office’s (“USPTO’s”) TARR database and there is no federal registration for the mark “Owners Suites.” There is not even an application pending. As every trademark practitioner knows, use of the ® for a mark that is not registered with the USPTO can constitute fraud. I’m surprised Plaintiffs did not throw in a “fraud” claim based on Curd’s use of the ® symbol (maybe it would force them to acknowledge that Curd had changed his website and removed references to MGM Grand, although he still references Signature, but arguably a fair use reference). I also checked with the Nevada Secretary of State (many people think that a state registration allows a person to use the ® symbol, even though it does not), but found nothing. Of course, this little misuse of the ® symbol is the least of Curd’s troubles right now.

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