Defendant Kept Supporting TSR-Violating Clients for Years: Marriott
Contrary to ResortCom’s “posturing,” the defendant in Marriott’s trademark infringement lawsuit to thwart Marriott telemarketing impersonators has been aware of its clients’ unauthorized use of the hotel trademark for years, said Marriott’s opposition Tuesday (docket 1:21-cv-00610) to ResortCom’s motion to dismiss in U.S. District Court for Eastern Virginia.
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ResortCom continued providing essential services to its clients “despite knowing and/or consciously avoiding knowing” they violated the FTC’s Telemarketing Sales Rule “as evidenced by its business records and complaints,” said Marriott in a separate opposition filing Tuesday to ResortCom’s motion for summary judgment.
ResortCom’s Dec. 16 motion to dismiss said Marriott can't meet the burden of proving ResortCom’s clients violated the TSR and that ResortCom substantially assisted those violations. With discovery complete, “it is clear that Marriott has no evidence to substantiate its alleged claims,” said ResortCom’s motion for summary judgment filed the same day.
ResortCom maintained chargeback records reflecting that its clients’ rates exceeded industry standards, “a red flag of deceptive telemarketing,” said Marriott’s opposition to summary judgment. “ResortCom knew that its customers’ telemarketers used Marriott’s name without authorization based on consumer complaints.” Yet ResortCom continued its business relationship with those clients, it said.
In a “meek” attempt to counter this overwhelming evidence, ResortCom “hides behind a theory” that Marriott must name as parties all of ResortCom’s current customers that have violated the TSR, said Marriott. “But such a theory is an overly strained reading of the TSR and one not adopted by the statute or the courts,” it said. “It makes sense that such a requirement does not exist, as a hallmark of robocall schemes is a shell game with company names.”
ResortCom fails to appreciate the “substantial assistance provision” of the TSR, as demonstrated “by its repeated insistence that it did not actually engage in telemarketing or robocalling activity,” said Marriott’s opposition to the motion to dismiss. A violation of the provision is an independent and distinct violation of the TSR, it said. At the very least, Marriott can show that ResortCom provided substantial assistance to customers as they were violating the TSR when it “knowingly provided merchant accounts and payment processing services” to those clients, it said.