Experts: Virgin Faces Uphill Battle v. Adrants

Virgin America may have a tough time winning its newly filed lawsuit against popular industry blog, according to legal experts.
Earlier this month, Adrants posted a parody ad featuring a photo of the downed US Airways jet in the Hudson River, with the carrier’s logo and ad message “Fly Virgin.” The initial post, headlined “The Hudson Crash: Just One More Reason to Fly Virgin,” offered a disclaimer in saying its “origins are suspect” but added, “We’ve seen Virgin turn ugly situations to its advantage before, making it much in keeping with the Virgin brand persona.” The post was written by Adrants blogger Angela Natividad.
On Monday, Virgin America filed a complaint in U.S. District Court in Northern California, alleging “trademark infringement, false designation of origin and false and deceptive advertising, trademark dilution, false and misleading statements, dilution in violation of California law, and defamation”
“Virgin has a fairly weak case,” said Ashima Dayal, a partner in the advertising practice at Davis & Gilbert, New York. “They don’t have much of a case with their trademark infringement claim, false designation of origin and deceptive advertising — it would be hard to make any of that stick. The defamation claim is what’s driving this and it’s not a strong claim.
While Adrants updated its original post by making it clear it was a “spoof” and a “fake,” Virgin America’s law firm, Fenwick & West, Mountainview, Calif., continued to seek removal of the post, identification of the individual(s) who sent it to Adrants and an apology and retraction. The law firm said the post was up for 72 hours before it was removed.

While D&G’s Dayal said she’s not a regular reader of Adrants, her impression of it is as a site that reports general news with irreverence. “The problem with the defamation claim is that they would have to prove that the typical [Adrants] reader would take this [parody] away as fact,” she said.
Rick Kurnit, a partner at Frankfurt Kurnit Klein & Selz, New York, said that Adrants has a journalistic responsibility to be very clear about what is authorized and what is a parody ad. But in this case, he’s also sniffing a “brilliant viral marketing PR campaign” on the part of Virgin America.

“I wouldn’t be surprised if this lawsuit disappears,” he said. Virgin America sues [Adrants] to say they disavow unfair and tasteless advertising while drawing attention to itself at the same time and the fact a competitor had birds fly into their engine.” 

Steve Hall, Adrants’ publisher, declined comment as did a Virgin America representative who cited the pending litigation.