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Paul Zimmerman
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Omni Accuses Vacation Rental Site of Trademark Infringement

Omni Hotels Management Corp. (Omni) has recently filed a trademark infringement lawsuit against HomeAway.com Inc. (HomeAway), in the Northern District of Texas. HomeAway operates multiple websites that offer vacation home rentals, some of which are located on or near Omni’s properties. HomeAway allows users of its vacation rental network to advertise their own homes as vacation rentals, and Omni alleges that 29 listings improperly mention its California and Florida resort properties using its registered trademarks. Omni seeks a portion of HomeAway’s profits, as well as damages caused by the infringement and the removal of the listings in question. Online vacation rentals are a booming industry, and the outcome of this case promises to affect how rental companies monitor and approve third-party content.

Omni’s lawsuit alleges that certain of HomeAway’s websites impermissibly incorporate Omni’s registered trademarks into the rental listings, despite Omni’s repeated cease-and-desist requests, and further alleges that the infringement is causing customers to be diverted from Omni to HomeAway’s rental properties. In addition to asserting claims for direct and contributory trademark infringement and unfair competition under federal law, Omni also alleges multiple claims under Texas state law. Among other things, Omni seeks actual and punitive damages against HomeAway, and the recovery of its attorney’s fees and legal costs.

HomeAway has not yet filed a response to the allegations, but the very existence of this lawsuit raises interesting questions about what type of defense rental companies may raise in cases such as this. One potential defense is that the use of Omni’s trademarks constitutes “fair use” within this context. In prior correspondence between Omni and HomeAway that was made public with the filing of the lawsuit, HomeAway argued that property listings stating only that the rental was “in,” “on the grounds of,” “located within,” “on,” or “at” an Omni resort fell within the bounds of the fair use doctrine, and thus did not infringe on Omni’s copyrights.

This battle will be closely watched, as a ruling on the fair use issue would likely establish precedent regarding the permissibility of using a hotel’s trademarks in connection with an unaffiliated property rental website. Hoteliers or managers of property rentals who have concerns about the legal limits that apply to the use of trademarks in such online advertising should contact qualified intellectual property counsel with experience in the hospitality industry. 

This article is not offered as, and should not be relied on as, legal advice. You should consult an attorney for advice in specific situations.