In an opinion issued on Monday by Judge Andrew P. Gordon of the District of Nevada, Groupon secured summary judgment on the three remaining claims in the dispute over its allegedly predatory business practices towards a skydiving outfitter in Las Vegas. Additionally, the court declined to reconsider its prior dismissal of plaintiff Las Vegas Skydiving Adventures LLC’s (LVSA) two antitrust claims.
The opinion explained that LVSA offers tandem skydiving experiences in southern Nevada, operating under the service mark “Fyrosity.” Groupon is an online platform that offers discount vouchers for use with affiliated businesses, including skydiving services, the court said.
The plaintiff asserted that Groupon gained control of the southern Nevada tandem skydiving services market by aggressively recruiting businesses to become affiliates and then deeply discounting service, which in turn harmed LVSA’s business In addition, the plaintiff said that Groupon’s use of its trademark in search results was likely to cause consumer confusion and constituted misappropriation of commercial property.
Previously, the court dismissed LVSA’s two antitrust claims with prejudice. Judge Gordon ruled that the plaintiff had no standing to challenge Groupon because the two were not competitors in the same market and therefore it could not have sustained antitrust injury. “Providing discount certificates to customers seeking tandem skydiving services is different (and a separate market) from providing tandem skydiving services,” the dismissal order said.
In this week’s summary judgment opinion, the court considered LVSA’s remaining claims based on Groupon’s online conduct. As to the trademark infringement claim, the court held that it failed as a matter of law because Groupon’s use of its “Fyrosity” mark did not give rise to a likelihood of consumer confusion.
Judge Gordon concluded that reasonably prudent consumers engage in the purchase of the relevant service here because skydiving is both expensive and dangerous, requiring trust between the purchaser and the service provider. The court further ruled that “Groupon’s webpage was clearly and sufficiently labeled such that a reasonably prudent consumer would not likely be confused as to whether the displayed results were attributable to LVSA.”
In addition, LVSA presented no evidence of a substantial investment in the development of its property and of a benefit conferred on Groupon such that a reasonable jury could find common law misappropriation of commercial property or unjust enrichment, the court found.
Finally, the order denied LVSA’s motion for reconsideration of its prior order dismissing the antitrust claims. “LVSA’s new evidence does not alter my previous ruling that the parties do not compete in the same market and their services are not reasonably interchangeable,” Judge Gordon wrote.
LVSA is represented by Gibson Lexbury LLP and Groupon by Greenberg Traurig LLP.
