Held, today, in the Supreme Court:
Under these principles, whether “Booking.com” is generic turns on whether that term, taken as a whole, signifies to consumers the class of online hotel-reservation services. Thus, if “Booking.com” were generic, we might expect consumers to understand Travelocity—another such service—to be a “Booking.com.” We might similarly expect that a consumer, searching for a trusted source of online hotel-reservation services, could ask a frequent traveler to name her favorite “Booking.com” provider. Consumers do not in fact perceive the term “Booking.com” that way, the courts below determined. The PTO no longer disputes that determination. That should resolve this case: Because “Booking.com” is not a generic name to consumers, it is not generic.
Here’s the opinion:
I called this one in March, by the way. Here, I’ll save you the click:
I say that Judge Wynn got it right, but also I say (as I must have on some level since my name is on the NYIPLA brief in favor of Booking.com’s position) that although Booking.com brought this on itself… and although Booking.com shouldn’t be allowed to have its cake and eat it… that, damn it, Booking.com is a trademark.
And there is no distinction between what Judge Wynn refers to as a “protectable trademark,” of course, and… a trademark.
It’s a trademark! It’s even a famous one! We know who provides the services at Booking.com, not merely what services they provide! It’s a brand, a great brand, a super-duper brand built on top of a damnable thing it brought upon itself. It is. It just is.
If it walks like a duck … if it functions like a trademark… it’s a trademark. And this goes just swimmingly, of course, with the Perception Axiom.
The “Perception Axiom”? For that, you have to click the link.
Congratulations to the winning team, including my old friend, rock ’em-sock’em-Lisa Blatt, who argued before SCOTUS as only she can; and to my far older friend David H. Bernstein, for Debevoise, which was co-counsel on the brief, to both of whom I will always have tremendous gratitude for all the reasons. (You too, Kagan!)
