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`Case 3:21-cv-00098-E Document 101 Filed 09/22/21 Page 1 of 76 PageID 2175Case 3:21-cv-00098-E Document 101 Filed 09/22/21 Page 1 of 76 PageID 2175
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF TEXAS
`DALLAS DIVISION
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` Civil Action No. 3:21-cv-00098-E
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`SOUTHWEST AIRLINES CO.,
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`v.
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`KIWI.COM, INC. and
`KIWI.COM S.R.O.,
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`Plaintiff,
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`Defendants.
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`PLAINTIFF SOUTHWEST AIRLINES CO.’S SECOND AMENDED COMPLAINT
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`Southwest Airlines Co. (“Southwest” or “Plaintiff”) files this Second Amended Complaint
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`against Kiwi.com, Inc. and Kiwi.com s.r.o. (collectively, “Kiwi” or “Defendants”) and shows as
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`follows:
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`
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`NATURE OF ACTION
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`1.
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`Just over 50 years since its first flights in 1971, Southwest Airlines has grown to
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`become one of the most-flown airlines in the United States. In peak travel seasons during 2019,
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`Southwest operated more than 4,000 daily departures among a network of more than 100
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`destinations in the United States and 10 additional countries. In 2020, Southwest added service to
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`new destinations in Hawaii, Florida, Colorado, and has added service to more U.S. cities
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`throughout 2021. Southwest prides itself on offering customer-friendly policies, including its
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`unique “Bags Fly Free” policy (each customer can check two bags for free, subject to weight and
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`size limits) and its “No Change Fees” policy (Southwest does not charge fees to change or cancel
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`flights, though fare differences may apply).
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`1
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`2.
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`Through its website at www.Southwest.com and its mobile application available
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`via the Apple app store and Google Play app store (the “Southwest Website” or “Southwest.com”),
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`Southwest offers its customers low-fare flights, along with providing ticket information,
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`reservation details, and additional booking options for Southwest flights and ancillary services.
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`3.
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`Southwest maintains the exclusive online distribution rights to sell Southwest
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`tickets to the general public through the Southwest Website and does not allow online travel
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`agencies (“OTAs”) to sell Southwest flights without express written approval. Southwest has long
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`controlled access to the Southwest Website and, in doing so, prevents OTAs or travel websites
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`from unauthorized sale of flights. Among other things, the Terms & Conditions for use of the
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`Southwest Website expressly prohibit any attempts to “page scrape” flight data and any use of the
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`Southwest Website “for any commercial purpose” without authorization from Southwest.1
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`4.
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`In the past, Southwest has successfully prosecuted actions and obtained injunctions
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`against website operators or OTAs attempting to scrape data from the Southwest Website for
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`commercial purposes without authorization by Southwest. See, e.g., Southwest Airlines Co. v.
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`Farechase, Inc., 318 F. Supp. 2d 435 (N.D. Tex. 2004); Southwest Airlines Co. v. BoardFirst,
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`L.L.C., No. 3:06-CV-0891-B, 2007 WL 4823761, at *4-11 (N.D. Tex. Sept. 12, 2007); Southwest
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`Airlines Co. v. Infare Solutions A/S, no. 3:10-cv-01674-M (N.D. Tex. 2010); Southwest Airlines
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`Co v. Checkinsooner.com, LLC, 3:10-cv-01512-K (N.D. Tex. 2010).
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`5.
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`Kiwi operates an OTA business at Kiwi.com that has engaged in repeated, unlawful
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`activity on the Southwest Website, and ignored a series of cease-and-desist demands from
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`Southwest. Kiwi’s unlawful conduct includes:
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`1 A true and correct copy of the Terms & Conditions is attached as Exhibit A.
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`2
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`a. Page Scraping: Kiwi has knowingly violated the Terms & Conditions through its
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`unauthorized scraping of flight and pricing data from the Southwest Website;
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`b. Unauthorized Sale: Kiwi has knowingly violated the Southwest Terms &
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`Conditions by selling Southwest tickets without approval from Southwest and
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`therefore has engaged in unauthorized commercial activity;
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`c. Unauthorized Services: Kiwi has knowingly violated the Southwest Terms &
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`Conditions by charging certain “service fees” that are not otherwise charged by
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`Southwest;
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`d. Trademark Infringement: Kiwi has knowingly violated Southwest’s registered
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`trademarks by displaying, among other things, Southwest’s famous “Heart” logo
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`on the Kiwi website;
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`e. Unauthorized Access: Kiwi has violated federal and state law by continuing to
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`access the Southwest Website without authorization from Southwest;
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`f. Unfair and Deceptive Practices: Kiwi has violated federal law by engaging in
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`unfair and deceptive practices in connection with the sale of airline tickets,
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`including (i) selling Southwest flights without permission; (ii) failing to identify
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`the carrier when advertising Southwest flights; (iii) adding its own service fees to
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`the price of Southwest flights; (iv) misrepresenting Southwest’s policies in an effort
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`to bilk customers into purchasing ancillary services from Kiwi, such as customer
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`service and checked bags, that are free with the purchase of Southwest flights;
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`(v) failing to issue refunds to customers for cancellations on Southwest flights; and
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`g. Hidden City Tickets: Kiwi has promoted and offered “hidden city” tickets,
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`meaning that the passenger’s intended final destination is not the ticketed final
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`3
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`destination, but rather an intermediate or connecting city.2 This booking practice is
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`a violation of Southwest’s Contract of Carriage. It negatively impacts Southwest’s
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`operations and causes problems (i) with checked baggage because Southwest must
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`check baggage to the ticketed, final destination, yet the customer intends to end
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`their trip in the connecting city; (ii) for operational employees and flight crews
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`trying to locate connecting customers that are listed on the connecting flight’s
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`manifest; and (iii) trying to locate connecting customers which leads to flight delays
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`that negatively impacts other passengers and disrupts Southwest flight schedules
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`and on-time performance metrics. Southwest has recently suffered multiple
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`reportable flight delays caused by Kiwi’s unauthorized sales of “hidden city”
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`flights.
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`6.
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`Kiwi’s conduct is unlawful, deceptive, and harmful to Southwest’s customers
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`because Kiwi misrepresents Southwest’s policies and charges unsuspecting customers fees for
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`things that are free on the Southwest Website. Such conduct not only harms the consumers, but
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`also Southwest by eroding consumer goodwill, tarnishing and diluting Southwest’s brand and
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`trademarks, and commercializing Southwest’s proprietary information without authorization.
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`7.
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`On multiple occasions since 2018, Southwest has sent Kiwi written cease-and-
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`desist demands in emails and letters—sent to Kiwi’s chief legal counsel and to Kiwi’s registered
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`agents in the United States—demanding that Kiwi stop this unlawful conduct.3 Southwest
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`2 As an illustrative example, a passenger purchases a ticket from Los Angeles to New York with a
`connection in Las Vegas, but does not travel beyond Las Vegas. These are also known as “buy
`long/fly short” itineraries.
`3 A true and correct copy of an email chain with cease-and-desist emails to Kiwi dated September
`17, 2018, and August 28, 2019, is attached as Exhibit B, and a true and correct copy of a cease-
`and-desist letter to Kiwi dated December 11, 2020, is attached as Exhibit C.
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`4
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`specifically referenced the Terms & Conditions for use of the Southwest Website and even
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`attached a copy of the Term & Conditions, pointing out examples of why Kiwi’s conduct was
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`unlawful, improper, and a violation of Southwest’s legal rights.
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`8.
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`Kiwi received the cease-and-desist notices and responded to them with emails
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`seeking to form a business relationship with Southwest.4 Although Southwest made it very clear
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`that it has no interest in forming a business relationship with Kiwi and that Kiwi should
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`immediately cease and desist its ongoing unlawful, deceptive, and harmful conduct, Kiwi has
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`ignored those demands. Instead, Kiwi has provided Southwest reports detailing its commercial use
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`of the Southwest Website through a purported Kiwi account representative.5
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`9.
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`In late November 2020, Southwest began to receive reports (from its employees)
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`and complaints (from its customers) about problems and challenges presented by tickets purchased
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`through Kiwi which included (i) customers calling Southwest’s Customer Relations department
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`because they had not received a refund on flights purchased through Kiwi (even through records
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`showed a refund was issued to the purchaser, Kiwi); and (ii) operational disruptions caused by
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`Kiwi’s sales of “hidden city” flights.
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`10.
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`Southwest sent a final cease-and-desist letter to Kiwi on December 11, 2020, but
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`Kiwi failed and refused to cease its unlawful conduct. Accordingly, Southwest filed this suit to
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`enjoin Kiwi’s unauthorized access to the Southwest Website, to stop the misuse and infringement
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`of Southwest’s registered trademarks, and to recover damages for Kiwi’s unauthorized activities.
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`4 A true and correct copy of an email response from Kiwi dated September 11, 2019, is attached
`as Exhibit D.
`5 A true and correct copy of an email from Kiwi to Southwest dated July 14, 2020, is attached as
`Exhibit E.
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`5
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`11.
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`Since filing this lawsuit, Southwest has implemented self-help security measures in
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`an effort to stop Kiwi’s activities, but Kiwi has continued to hack the Southwest Website, republish
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`Southwest fares and flight schedules, and sell Southwest flights without permission in violation of
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`federal law and the Terms & Conditions.
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`12.
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`Southwest recently discovered that Kiwi is now (according to Kiwi) obtaining
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`Southwest flight and fare data from third parties, including at least one Global Distribution System
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`(“GDS”) company and at least one ARC travel agency.6
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`THE PARTIES
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`13.
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`Southwest Airlines is a Texas corporation with its principal place of business
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`located at 2702 Love Field Drive, Dallas, Texas 75235.
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`14.
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`Defendant Kiwi.com, Inc. is a Delaware corporation with its principal place of
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`business at 1209 Orange Street, Wilmington, Delaware 19801. Kiwi.com, Inc. already has
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`appeared in this lawsuit.
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`15.
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`Defendant Kiwi.com, s.r.o. is a Czechoslovakian limited liability company
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`identifying its address as Palachovo náměstí 4, 625 00 Brno, Czech Republic. Kiwi.com s.r.o.
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`already has appeared in this lawsuit.
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`JURISDICTION AND VENUE
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`16.
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`This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1338
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`because Southwest asserts claims arising under 18 U.S.C. § 1030 and 15 U.S.C. §§ 1114, 1116,
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`1117, and 1125 of the Lanham Act. This Court has supplemental and pendent jurisdiction over the
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`related state law claims pursuant to 28 U.S.C. § 1367.
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`6 The investigation regarding this matter is ongoing, and Southwest has a pending motion to compel
`a full, complete, and current answer to Interrogatory No. 3 [Doc. 95].
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`6
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`17.
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`In connection with its unauthorized republication of Southwest fares and flight
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`schedules and its unauthorized sales of Southwest flights and services, Kiwi is accessing
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`Southwest’s computer systems located in Texas and in this District without authorization,
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`bypassing Southwest’s security systems intended to block automated traffic and bots from using
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`the Southwest Website, and hacking the Southwest application program interface (“API”)7 that is
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`accessible only through the Southwest Website—all in violation of the Terms & Conditions for
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`use of the Southwest Website. In its original Complaint, Southwest provided notice that Kiwi’s
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`scraping and hacking activities involve Southwest servers in this District. Southwest submitted
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`sworn evidence of this fact in other pleadings.8 And Kiwi has acknowledged that, if true, such
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`conduct justifies venue in this District. With knowledge of these facts, Kiwi has continued to
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`scrape, hack, and use Southwest information via activities directed at servers located in Dallas.
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`18.
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`This Court has jurisdiction over Kiwi and all of Southwest’s claims pursuant to the
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`Terms & Conditions for use of the Southwest Website, which provide as follows:
`Forum Selection
`These Terms and the relationship between you and Southwest shall be
`governed by the laws of the State of Texas without regard to any conflict of
`law provisions. You agree to the personal and exclusive jurisdiction of the
`courts located within Dallas, TX. You hereby consent to the exclusive
`jurisdiction and venue of the State and Federal courts in Dallas, Texas in all
`disputes. You agree and understand that you will not bring against the
`Southwest Parties any class action lawsuit related to your access to, dealings
`with, or use of the Service.9
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`
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`7 API is an interface used to programmatically access an application through a set of routines,
`protocols, and other tools for building software applications. The purpose of using an API is to
`access an application without using the standard user interface.
`8 See [D.I. 30] at 3.
`9 Ex. A, Terms & Conditions at 3 (emphasis in original).
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`7
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`19.
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`The forum selection clause applies to “all disputes,” which includes Southwest’s
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`Lanham Act and unjust enrichment claims. Moreover, Southwest’s claims arise out of Kiwi’s
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`“access to, deadlines with, or use” of Southwest’s website.
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`20.
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`Under the Terms & Conditions, Kiwi also agreed that:
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`[A]ny transactions carried out through the Sites will be deemed to take place in the
`State of Texas, United States of America, regardless of the jurisdiction where [it]
`may be located or reside...
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`21.
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`In addition to consenting to this Court’s jurisdiction by using the Southwest
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`Website and purchasing tickets directly from Southwest (even after receiving multiple cease and
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`desist notices), Kiwi has committed torts in this District, breached a contract in this District,
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`violated Texas statutory law in this District, and systematically conducts business in this District.
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`Kiwi has also purposefully availed itself of the forum by soliciting business from Texas residents
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`and purposefully directing its actions towards Texas, including by offering and selling flights in
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`Texas, soliciting business from Texas residents, and soliciting business from Southwest’s
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`commercial and marketing leadership at its headquarters in Dallas, Texas.
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`22.
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`For example, Kiwi’s website offers and sells Southwest flights to airports to ten
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`(10) Texas cities, including: Dallas (DAL), Houston (HOU), Austin (AUS), San Antonio (SAT),
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`El Paso (ELP), Midland/Odessa (MAF), Lubbock (LBB), Amarillo (AMA), Harlingen (HLG), and
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`Corpus Christi (CRP) (collectively, “Texas Airports”).
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`23.
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`Kiwi has purchased tickets directly from Southwest’s Website and then resold those
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`flights to over 170,000 customers. In connection with the purchase of those Southwest flights,
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`Kiwi interacts with Southwest computer systems located in Texas and in this District. In
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`connection with the resale of those Southwest flights, Kiwi is selling the services of Southwest, a
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`Texas company with its base of operations in this District. Kiwi has derived millions of dollars in
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`8
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`revenues and profits from such contacts with Texas and can reasonably anticipate being hailed into
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`court in Texas to answer for its actions.
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`24.
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`Kiwi has sold more than 19,000 Southwest tickets with an origin or destination at
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`one of the Texas Airports.
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`25.
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`Kiwi has sold more than 1,400 Southwest reservations (for more than 1,800
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`passengers) that include a billing zip code in Texas.
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`26.
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` The injuries Kiwi inflicts on Southwest are felt in this District, and Kiwi knew that
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`serious harmful effects from its conduct would occur here.
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`27.
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`Kiwi’s unlawful conduct causes customer confusion in this District.
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`28. When a Texas user visits Kiwi.com, Kiwi.com s.r.o. sends targeted promotional
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`emails like the one below asking, “Do you often fly to and from Dallas? Simply enter the name of
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`the city you most commonly fly from, and help us improve our service by sending you the best
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`deals on flights from there straight to your inbox. Easy!” The email is sent by Kiwi.com s.r.o.10
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`10 Upon information and belief, this is done by collecting user email address and by using website
`“cookies” that identify and track the user’s location.
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`9
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`29.
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`Venue is proper in this District pursuant to 28 U.S.C. § 1391 because the claims
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`asserted in this action arose in this District and a substantial part of the activities, conduct and
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`damages have occurred in Texas. During all relevant times, Kiwi repeatedly, knowingly and
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`intentionally accessed without Southwest’s authorization Southwest servers located in this
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`District. Additionally, as quoted above, pursuant to the Terms & Conditions quoted above, Kiwi
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`consented to exclusive jurisdiction of courts in Dallas, Texas for all disputes relating to the use of
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`the Southwest Website.
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`30.
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`Venue is proper under 28 U.S.C. § 1391(c)(3) as to Kiwi.com s.r.o. because it is a
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`foreign entity not a resident of the United States that may be sued in any district.
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`10
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`31.
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`The Court already has determined that it has jurisdiction over Kiwi and that venue
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`is proper in this District [D.I. 16 and 89].
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`FACTS GIVING RISE TO THIS ACTION
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`Southwest’s Operation and Website
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`32.
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`Since its first flight in June 1971, Southwest has provided affordable flights to
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`business and leisure passengers for almost 50 years. Southwest became the nation’s largest
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`domestic air carrier in 2003 and, with its domestic-focused network, it continues to be one of the
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`most-flown airlines in the United States. In peak travel seasons during 2019, Southwest operated
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`more than 4,000 daily departures among a network of more than 100 destinations in the United
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`States and 10 additional countries.
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`33.
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`In the highly competitive airline industry, Southwest has been successful in large
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`measure because of Southwest’s commitment to customer service and consumer loyalty, including
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`its well-known promises of fares with “no hidden fees” and “no change fees” (though fare
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`differences may apply).
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`34.
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`Southwest owns and operates the Southwest Website. Southwest also maintains the
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`exclusive online distribution rights to sell Southwest tickets to the general public through the
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`Southwest Website and does not allow OTAs to sell Southwest flights without express written
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`approval. Southwest has long prevented website operators, OTAs, and travel applications from
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`selling its flights and the Terms & Conditions for the Southwest Website include a list of Restricted
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`Activities that prohibit attempts to “page scrape” or using the Southwest Website “for any
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`commercial purpose” without permission from Southwest.11 Such restrictions are permitted under
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`11 See Ex. A, Terms & Conditions at 2.
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`11
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`

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`federal law.12 Southwest’s fares and flight schedules are proprietary. Although they are published
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`openly on the internet, they are subject to specific use restrictions and may not be republished or
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`used for commercial purposes without Southwest’s express permission.
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`35.
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`To protect the security of its website and ensure normal operations, Southwest
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`makes its website and the proprietary contents available for consumers’ use subject to the Terms
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`& Conditions. An interactive link on each page of the Southwest Website, including the homepage,
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`references the Terms & Conditions.
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`36.
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`Because use of the Southwest Website constitutes acceptance of the Terms &
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`Conditions, the Terms & Conditions constitutes a valid and enforceable contract between
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`Southwest and those who access the website. Since 2018, Southwest has sent multiple cease and
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`desist letters to Kiwi, pointing out and explaining Kiwi’s violations of the Terms & Conditions,
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`yet Kiwi has continued its unlawful conduct, including page-scraping flight data and other
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`activities that violate the Terms & Conditions.
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`37.
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`The Terms & Conditions for use of the Southwest Website specifically prohibit,
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`among other things, the following user conduct:
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`a. Use of the Southwest Website to “copy, display, distribute, publish, re-post,
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`reproduce, re-use, sell, transmit or use the Service or Company Information to
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`create a derivative work;”
`
`
`12 See 14 C.F.R. § 256.6 (“Nothing in this section requires an air carrier, foreign air carrier, or
`ticket agent to allow a system to access its internal computer reservation system or to permit
`‘screen scraping’ or ‘content scraping’ of its Web site; nor does it require an air carrier or foreign
`air carrier to permit the marketing or sale of the carrier’s services through any ticket agent or other
`carrier’s system. ‘Screen scraping’ as used in this paragraph refers to a process whereby a company
`uses computer software techniques to extract information from other companies’ Web sites
`without permission from the company operating the targeted Web site.”). To the extent that any
`common law right to scrape “publicly available” data exists, this section preempts it.
`
`12
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`

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`b. Use of the Southwest Website or Company Information “for any commercial
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`purpose, with the exception of authorized Southwest travel agents/agencies;”
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`c. Engaging in any activity in connection with the Southwest Website or Company
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`Information that is “fraudulent, unlawful, false or misleading . . . .;”
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`d. Attempts to “harvest any information from the [Southwest Website];”
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`e. Attempts to “infringe any intellectual property or other right of any third party;”
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`f. Use of the Southwest Website “to make any speculative, fraudulent, or false
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`reservation or any reservation in anticipation of demand;” and
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`g. “[U]se [of] any deep-link, page-scrape, robot, crawl, index, spider, macro
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`programs, Internet agent, or other automatic device, program, algorithm or
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`methodology which does the same things to use, access, copy, acquire information,
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`. . . search, generate searches, or monitor any portion of the [Southwest Website]
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`or Company Information[.]”13
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`38.
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`The Terms & Conditions also provide that, by accessing the Southwest Website,
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`“you also agree you will not use the [Southwest Website] for or in connection with offering any
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`third party product or service not authorized by Southwest.”14
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`
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`
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`Southwest’s Registered Trademarks
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`39.
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`Southwest is the owner of, among other things, the federal trademark registrations
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`listed below (hereinafter collectively referred to as the “Southwest Marks”):15
`
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`13 See Ex. A, Terms & Conditions at 2.
`14 See id.
`15 True and correct copies of the registrations certificates for the Southwest Marks are available
`free of charge from the USPTO’s Trademark Electronic Search System (TESS) database available
`at https://www.uspto.gov/trademarks-application-process/search-trademark-database.
`
`13
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`

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`No.
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`Reg. No.:
`1,738,670
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`Reg. No.:
`3,129,737
`
`Reg. No.:
`4,806,962
`
`
`
`Reg. No.:
`4,768,717
`
`
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`Reg. No.:
`4,720,322
`
`
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`Trademark
`
`Date
`
`Services
`
`SOUTHWEST
`AIRLINES
`
`Registered:
`Dec. 8, 1992
`
`SOUTHWEST
`
`Registered:
`Aug. 15, 2006
`
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`
`
`
`
`
`
`
`
`
`
`
`
`Registered
`September 8, 2015
`Int'l Class: 35
`First Use:
`September 8, 2014
`Filed: October 1,
`2014
`
`
`Registered July 7,
`2015
`Int'l Class: 16
`First Use:
`September 8, 2014
`Filed: December 1,
`2014
`
`
`Registered April
`14, 2015
`Int'l Class: 39
`First Use:
`September 8, 2014
`Filed: September 8,
`2014
`
`
`(Int’l Class: 39)
`transportation services; namely,
`transportation of cargo and passengers by
`air
`
`
`(Int’l Class: 39)
`Transportation of passengers and/or goods
`by air
`
`
`(Int’l Class: 35)
`providing electronic on-line information
`services, namely, the provision of
`advertisements and business information
`in respect of travel, tourism and
`entertainment through a computer
`database; advertising services and
`promotion services by data
`communications for service providers in
`the travel industry; on-line direct
`electronic marketing services and
`advertising services for service providers
`in the travel industry; providing online
`information to others, namely,
`advertisements and solicitations
`
`
`(Int’l Class: 16)
`printed matter, namely, publications,
`magazines, and books all featuring
`information about the airline and travel
`industry
`
`
`(Int’l Class: 39)
`air transportation of passengers and
`freight; air transportation services
`featuring a frequent flyer bonus program;
`airline transportation services; delivery of
`goods by air; freight transportation by air;
`making reservations and bookings for
`transportation; making transportation
`bookings and reservations for others by
`means of a website; on-line transportation
`reservation and travel ticket reservation
`services; online transportation reservation
`services; providing a website featuring
`information in the field of air
`transportation; providing automated
`
`14
`
`

`

`
`
`Case 3:21-cv-00098-E Document 101 Filed 09/22/21 Page 15 of 76 PageID 2189Case 3:21-cv-00098-E Document 101 Filed 09/22/21 Page 15 of 76 PageID 2189
`
`Trademark
`
`Date
`
`Services
`
`No.
`
`
`
`
`
`
`
`Registered April
`21, 2015
`Int'l Class: 09
`First Use:
`September 8, 2014
`Filed: September
`22, 2014
`
`
`Registered April
`21, 2015
`Int'l Class: 43
`First Use:
`September 8, 2014
`Filed: September
`22, 2014
`
`
`Registered January
`26, 2016
`Int'l Class: 41
`First Use:
`September 8, 2014
`Filed: May 22,
`2015
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`check-in and ticketing services for air
`travelers; transport by aircraft; transport
`by air; transport of passengers; transport
`of persons and goods; transportation of
`passengers and/or goods by air; travel
`agency services, namely, making
`reservations and bookings for
`transportation
`
`
`(Int’l Class: 09)
`computer application software for mobile
`phones, namely, software for delivery of
`personalized travel information; computer
`e-commerce software to allow users to
`perform electronic business transactions
`via a global computer network; computer
`software for the delivery of personalized
`travel information that may be
`downloaded from a global computer
`network; downloadable mobile
`applications for providing personalized
`travel information namely flight check-in,
`flight status, and flight and car rental
`information and services; downloadable
`software in the nature of a mobile
`application for the delivery of
`personalized travel information
`
`
`(Int’l Class: 43)
`making hotel reservations for others;
`providing a website featuring information
`in the field of hotels and temporary
`accommodations for travelers; providing
`personalized information about hotels and
`temporary accommodations for travel via
`the internet
`
`
`(Int’l Class: 41)
`providing information on entertainment,
`sporting, and cultural events and venues,
`amusements parks, tourist attractions, and
`recreational activities; ticket reservation
`and booking services for entertainment,
`sporting, and cultural events and venues,
`amusement parks, tourist attractions, and
`recreational services
`
`
`15
`
`Reg. No.:
`4,723,791
`
`
`Reg. No.:
`4,723,789
`
`
`Reg. No.:
`4,892,223
`
`
`

`

`
`
`Case 3:21-cv-00098-E Document 101 Filed 09/22/21 Page 16 of 76 PageID 2190Case 3:21-cv-00098-E Document 101 Filed 09/22/21 Page 16 of 76 PageID 2190
`
`40.
`
`Southwest spends substantial time, money, and effort advertising and promoting its
`
`products and services using its trademarks throughout the United States. The Southwest Marks
`
`provide Southwest with the exclusive right to use the registered marks in connection with air
`
`transportation and other travel services, as well as the right to exclude third parties from
`
`unauthorized use of the marks. Through years of nationwide and continuous use and
`
`advertisement, Southwest has established enormous goodwill with respect to these marks, and they
`
`are Southwest’s valuable intellectual property. The Southwest Marks have become famous,
`
`distinctive and well known, and the public accepts the marks as indicative that Southwest is the
`
`source of those services.
`
`
`
`
`
`Kiwi’s Wrongful, Unauthorized, and Misleading Conduct
`
`41.
`
`Upon information and belief, both Kiwi.com s.r.o. and Kiwi.com, Inc. control and
`
`direct Kiwi.com. Kiwi operates a travel website that offers, among other things, airline flights and
`
`itineraries on many U.S.-based airlines. Kiwi.com s.r.o. has not disputed that it controls and directs
`
`Kiwi.com.
`
`42.
`
`In connection with these services, Kiwi knowingly and intentionally targets the
`
`Southwest Website to harvest Southwest’s flight and fare information for its own commercial
`
`benefit and without Southwest’s authorization. Kiwi uses Southwest’s information in a manner
`
`that is fraudulent, false or misleading, and that violates the Terms & Conditions of the Southwest
`
`Website.
`
`43.
`
`On information and belief, Kiwi sold approximately 170,000 Southwest tickets
`
`between 2017 and the first quarter of 2021.
`
`16
`
`

`

`
`
`Case 3:21-cv-00098-E Document 101 Filed 09/22/21 Page 17 of 76 PageID 2191Case 3:21-cv-00098-E Document 101 Filed 09/22/21 Page 17 of 76 PageID 2191
`
`44. When reselling Southwest tickets, Kiwi acknowledges that purchases are subject to
`
`Southwest’s Terms & Conditions, stating: “All services provided by Southwest Airlines are subject
`
`to their Terms and Conditions. More information is available on their website.”
`
`45.
`
`Kiwi’s Terms and Conditions state that “a Selected Carrier’s terms and conditions
`
`and conditions of carriage will apply to Your contractual relationship with the Selected Carrier
`
`and that You must make Yourself aware of such terms and conditions as well as conditions of
`
`carriage before the Service Agreement is concluded and You complete the Booking.”
`
`
`
`17
`
`

`

`
`
`Case 3:21-cv-00098-E Document 101 Filed 09/22/21 Page 18 of 76 PageID 2192Case 3:21-cv-00098-E Document 101 Filed 09/22/21 Page 18 of 76 PageID 2192
`
`46.
`
`After receiving complaints from consumers who booked Southwest flights through
`
`the Kiwi website, and upon visiting the Kiwi.com website, Southwest discovered Kiwi’s infringing
`
`use of Southwest’s famous “heart” trademark, as circled in the Kiwi website screenshot below:
`
`
`
`47.
`
`Kiwi’s use of the Southwest Marks