The entire federal lawsuit will likely fail because it seems likely that the trademark and copyright claims will be dismissed because of either of two grounds, or both, and the federal court will decline to retain jurisdiction over the remaining state claims.

First, there is no trademark liability when there a sale of genuine goods bearing a true mark even if the sale is not authorized by the mark owner. Polymer Technology Corp. v. Mimran, 975 F.2d 58, 61 (2d Cir. 1992). “[E]ven repackaging of goods is not trademark infringement if it does not deceive the public or damage the mark owner’s goodwill.” Id. at 62. Although this case is about services rather than goods, the same principle applies. Skiplagged is selling genuine American Airlines transportation, and therefore is entitled to use the American Airlines mark to describe the services being sold, notwithstanding the fact that American Airlines has not authorized Skiplagged from doing so.

Second, under the nominative fair use doctrine, a person may use a third party’s mark without liability to refer to the owner of the mark or to their goods or services. That is, if there is no other way to describe the goods or services, other than by using the mark, then such mark usage is not infringement. See New Kids on the Block v Gannett Satellite Info Network, 971 F. 2d 302 (9th Cir 1992).

The copyright claim is novel. The copyright office had denied registration initially, and the court will likely be reluctant to give much protection to a logo by laws intended to protect creative writing. It seems reasonable that the same grounds for non-liability under trademark law will apply as well to this copyright claim.