Atlasjet Uluslararasi Havacilik A.S.

Atlasjet Uluslararasi Havacilik A.S.

Counsel: John Richardson, 202-371-2258, jrichardson@johnl.richardson.com

http://www.atlasjet.com/

Atlasjet intends to focus its attention initially on the movement of passengers between points in Turkey and Miami, but it will be available to serve other U.S. terminal points as the need arises. Atlasjet also looks forward to responding to the demand for fifth-freedom capacity in U.S. markets, and it anticipates that it will serve passengers moving between points in Turkey and points beyond the U.S. To the extent practicable, Atlasjet would want to be able to transport these passengers, not moving in foreign air transportation, with other passengers moving in foreign air transportation on the same aircraft, as authorized by the U.S.-Turkey Open Skies Agreement. Finally, Atlasjet seeks authority to provide wet lease services to and from points in the United States for other carriers which need additional capacity on an ad hoc basis.

Atlas Air expressly recognizes that the Department does not entertain disputes involving the use of names and trade names by the carriers it licenses. In fact, Atlas Air even cites recent controlling legal authority to that effect. Atlas Air does not and is unable to offer any citation to any Department decision which would provide legal support for the relief it seeks. Atlas Air is an all-cargo carrier and is not permitted under its current operating authority to solicit or transport passenger traffic. Atlasjet Uluslararasi Havacilik A.S., on the other hand, is principally a passenger carrier specializing in the bulk transportation of passengers on charter flights.

On July 3, 2003, Atlas Air, Inc., a U.S. all-cargo carrier, filed answers to both applications. Atlas Air does not oppose approval of either application and does not oppose the institution of the service the applicant proposed. Atlas Air's only concern relates to applicant's name, which it asks the Department to prohibit the applicant from using in connection with any cargo operations it may conduct to or from the U.S.

Atlasjet fails even to mention that the Atlas position is not based on name similarity alone. As Atlas explained in paragraph 4 of its answer, Atlasjet planes bear an uncanny resemblance to aircraft in the Atlas fleet. That fact provides strong additional support for the proposition that the Department should exercise jurisdiction under 49 U.S.C. §41712 and impose a “holding out condition,” as requested by Atlas. It is striking that the applicant has stopped calling itself “Atlasjet,” as it did in its application. On each of the 12 occasions it refers to itself by name in the text of the reply, the applicant uses its full legal name -- Atlasjet Uluslararasi Havacilik A.S. Atlas wishes to call attention to the applicant’s own approach and would find it acceptable if the holding out condition were to require use of the applicant’s complete name – Atlasjet Uluslararasi Havacilik S.A. or Atlasjet Uluslararasi Havacilik – rather than the abbreviation “Atlasjet” on each and every occasion that it holds out or provides cargo services.

Atlas Air, Inc. today is filing a motion for leave to file an otherwise unauthorized document and rejoinder to the July 15, 2003 answer of Atlasjet Uluslararasi Havacilik A.S. in Docket OST-2003-15450. Atlas incorporates that motion and rejoinder by reference herein.

Atlas Air's silence with respect to the governing legal standard and the complete absence of any evidence of real or possible confusion speaks volumes. There simply cannot be any disagreement regarding the applicable decisional standards, and there cannot be any serious contention that Atlas Air has offered any evidence or argument of any kind demonstrating the possibility, much less the likelihood, of harmful confusion arising from the use by Atlasjet of its name -- or a portion thereof -- in conducting air transportation to or from the U.S.

Atlasjet is unable to fathom how it can be criticized for using its full name in documents filed with the Department. That is its name. But Atlasjet is a name the applicant also uses and, if Atlas Air were to continue to be critical of Atlasjet, it should be its obligation to come forward with some evidence to show that Atlasjet's use of that name has caused or will cause confusion to the detriment of Atlas Air.

Despite its disclaimer, it is becoming increasingly apparent that Atlas Air's true purpose here is to delay the expeditious conclusion of these proceedings and to forestall the early entry of Atlasjet into the U.S. market. Atlas Air expressly recognizes that the Department has no interest in resolving disputes involving alleged name confusion or otherwise addressing "holding out" conditions. But, while making the concession, Atlas Air urges the Department to do what the Department has said it will not do. Most prominently, it must be recognized that Atlas Air has failed even to attempt to introduce any real evidence of actual or potential confusion.

Following the filing of an answer and a reply, on July 18, 2003, Atlas Air filed an unauthorized "Rejoinder" together with a motion for leave to file an unauthorized document in both the permit and exemption proceedings. Atlasjet is today filing a motion for leave to file and an answer to the Atlas Air Rejoinder in the exemption case (Docket OST-2003-15450) .

Exemption authority from 49 U.S.C. § 41301 to engage in charter foreign air transportation of persons, property and mail between any point or points in Turkey and any point or points in the United States; and to conduct other charters in accordance with Part 212 of the Department's rules.

Atlas Air Inc., a U.S. certificated air carrier, and the applicant exchanged various responsive pleadings concerning name similarity.' Atlas states that while it does not oppose granting the applicant the authority it seeks, it urges us to address a name-confusion problem (as well as the applicant's aircraft livery and color scheme which Atlas believes is similar to its own) by conditioning the award of authority on the applicant's agreement not to use the "Atlas" root in its name or logo for any all-cargo service the applicant might offer. Atlas Air believes that here, where the public will undoubtedly be confused by the applicant's name and aircraft appearance, the Department could act prospectively under § 41712 of Title 49 (Unfair & Deceptive Practices) to prevent harm to U.S. consumers. The applicant opposes Atlas' request asserting that the potential for public confusion in this case is negligible, noting that each offers a different service. The applicant states that its operations are principally "bulk transportation of passengers on charter flights" while Atlas is an all-cargo carrier not authorized under its current certificate to "solicit or transport passengers."

As to Atlas' concerns and its request that we impose a holding out condition on the applicant's authority, we note that we do not make public interest determinations under our regulations concerning name similarity (14 CFR Part 215). As we have noted in the past, the responsibility for resolution of name disputes rests with affected carriers through recourse to trade name statutes and the civil courts. Against this background, we are not persuaded that the question concerning the applicant's name-similarity, or the livery on its aircraft, warranted delay of favorable action on the applicant's request. Moreover, there does not appear to be a sufficient potential for consumer harm to be concerned that a violation of 41712 might occur.

Atlasjet respectfully requests renewal of the exemption the Department issued to it which authorizes it to provide charter foreign air transportation of persons, property, and mail between a point and points in Turkey and a point or points in the United States and betwen points in the United States and points in third countries as authorized by and in accordance with the provisions the Air Transportation Agreement entered into by the Government of the Republic of Turkey and the Government of the United States.

Atlasjet has not yet instituted service under the exemption authority the Department awarded to it in 2003. Rather, since that time, it has concentrated its efforts on consolidating its position in Turkey and focusing its attention on service between points in Turkey and other points in the region.

Nevertheless, Atlasjet intends and has definite plans to institute service to and from the United States in the forseeable future. Accordingly, it respectfully requests authority to maintain the effectiveness of the operating authority the Department awarded to it so that it will be able to institute service at the earliest feasible time.

Atlasjet intends to institute its service to and from the United States utilizing aircraft presently in its fleet or other aircraft to be acquired by it.

Renew exemption from 49 U.S.C. § 41301 to engage in charter foreign air transportation of persons, property and mail between any point or points in Turkey and any point or points in the United States; and to conduct other charters in accordance with Part 212 of the Department’s rules.

Atlasjet requests renewal of the exemption which authorizes it to provide charter foreign air transportation of persons, property and mail between a point or points in Turkey and a point or points in the United States and between points in the United States and points in third countries.

Atlasjet has not yet instituted service to the US. Rather, it has concentrated its efforts on consolidating its position in Turkey. It respectfully requests authority to maintain the effectiveness of the exemption authority the Department awarded to it so that it will be able to institute service at the earliest feasible time.

Atlasjet intends to institute its service to and from the United States utilizing aircraft presently in its fleet or other aircraft to be acquired by it.