HomeAway, Inc. et al v. Airbnb, Inc.
COMPLAINT and Request for Preliminary and Permanent Injunctive Relief ( Filing fee $ 400 receipt number 0542-6116104), filed by HomeAway, Inc., HomeAway.com, Inc.. (Attachments: # 1 Declaration of Carl Shepherd, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19, # 21 Exhibit 20, # 22 Exhibit 21, # 23 Exhibit 22, # 24 Civil Cover Sheet)(Simons, Michael)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
HOMEAWAY, INC., and
Civil Action No. _ _ __
JURY TRIAL DEMANDED
DECLARATION OF CARL SHEPHERD
I, Carl G. Shepherd, declare that the following is true and correct:
I am a co-founder ofHomeAway, Inc. and serve as both the Chief Strategy and
Development Officer and a Director. I have personallmowledge of the facts set forth herein, and
if called upon to testify, could and would testify competently thereto.
I. Founded in 2005, HomeAway, Inc. operates the world's largest online vacation
rental prope1iy marketplace, enabling property owners and managers (collectively "Owners") to
market properties available for rent (collectively, "Properties") to travelers who rely on
HomeAway's website marketplaces to search for and find available properties (collectively
"Travelers"). Travelers use one or all ofHomeAway's websites to search for Propmiies that can
be rented on a short term basis that meet their desired criteria, including location, size and price.
Travelers that find Propmiies that meet their requirements through HomeAway's marketplace are
able to contact Owners directly by phone or through form-based communication tools on
Today, the websites comprising HomeAway's online marketplaces
("the HomeAway Websites") bring together more than 30 million Travelers monthly seeking
vacation rental with hundreds of thousands of Owners of Propmiies located in all 50 of the
United States and 171 countries around the world.
2. HomeAway primarily derives revenue fi·om subscription fees paid by Owners for
a listing on one or all of HomeAway Websites, but also derives revenue from commissions on
· rentals for Properties whose Owners select the transaction-based option. HomeAway benefits
from what the industry calls the "network effect," a virtuous cycle wherein an increase in
Travelers who visit the HomeAway Websites attracts more listings from Owners, which in tum
creates more and better rental options that in turn attract more Travelers.
3. Since its inception in 2005, HomeAway has experienced rapid growth and
HomeAway's operations expanded from 87 employees on December 31,
2005, to worldwide total of 1,461 employees as of September 30, 2013. From 2005 to 2013 the
number of listings on the HomeAway Websites has grown from 60,000 listings on a single site to
an aggregate of 773,000 paid listing on several sites. In 2012, total revenue increased by over
20% from the prior year and exceeded $280 million. In the third quarter of 2013, revenue
increased 23.3% to 90.1 million from the third quarter of 2012.
HomeAway's success and
achievement led to a successful initial public offering of its stock on the Nasdaq OMX stock
market in 2011 (NASDAQ: AWAY).
4. HomeAway uses television, print ads, and Internet advertising to promote and sell
its vacation rental services. HomeAway has expended millions of dollars to develop its branding
and operate its branded online marketplace.
5. Vacation rentals in vacation oriented markets are historically HomeAway's
primary market segment, however, it is possible for an individual advertiser to post his primary
home or rental apartment on a HomeAway Website, and HomeAway estimates that fewer than
5% of our total listings fall into this category.
6. In 2005, HomeAway
commissioned a well-known
experienced in branding to create the Birdhouse Mark for HomeAway.
Since July 2006,
HomeAway has used the Birdhouse Mark in connection with its provision of vacation rental
The Birdhouse Mark was intentionally developed and deployed as the unifying core
brand for HomeAway's Websites and businesses and signifies the HomeAway customer
experience both in the United States and abroad.
7. The Birdhouse Mark has been used and continues to be used prominently on
several HomeAway Websites in the HomeAway global marketplace, including the
HomeAway.com website, through which HomeAway provides a variety of Property rental
services to Owners and Travelers throughout the United States and abroad. Other HomeAway
TopRural.com (Spain), AlugueTemporada.com.br (Brazil), HomeAway.com.au (Australia), ),
HomeAway.se (Sweden), HomeAway.pt (Portugal), HomeAway.ca (Canada), HomeAway.mx
(Mexico), HomeAway.com.co (Colombia), HomeAway.com.ar (Argentina),
(Austria), HomeAway.dk (Denmark), HomeAway.no (Norway) and HomeAway.it (Italy).
HomeAway adopted and deployed the Birdhouse Mark as a global unifying brand both in the
United States and around the world. When HomeAway includes in its marketplace websites
with regionally-appropriate domain name, such as AlugeTemporada.com.br in Brazil or
Abritel.fr in France or Fewo-Direkt.de in Germany, the Birdhouse Mark is used to signify that a
HomeAway service is offered, uniting the Brand around the world.
8. Because of this, the mark has become a strong mark, particularly among potential
customers for HomeAway's vacation rental services and has acquired substantial goodwill and
reputation. HomeAway's official logo, with the Birdhouse Mark preceding the "HomeAway"
name, is included on marketing and advertising, including TV commercials (including Super
Bowl commercials in consecutive years), print ads, the HomeAway Websites, conferences, and
other marketing materials.
Attached as Exhibits 1 - 7 are true and correct images fi·om
HomeAway Marketing efforts.
These promotional activities and advertisements continually
increase the strength and significance ofHomeAway's Birdhouse Mark.
9. Tlu·ough HomeAway's extensive use, advertising and promotion, the Birdhouse
Mark has become exclusively synonymous with HomeAway. Indeed, so central is the Birdhouse
Mark to the company that it is prominently incorporated at HomeAway's corporate offices both
on its exterior logo as well as in an interior two story high three dimensional installation that is
visible from a busy intersection in downtown Austin, Texas. Attached as Exhibit 8 are true and
conect pictures ofHomeAway's headquarters.
l 0. HomeAway has taken steps to protect its valuable Birdhouse Mark.
HomeAway.com, Inc., a wholly-owned subsidiary ofHomeAway, Inc., owns several trademark
registrations for marks containing or comprising the Birdhouse Marie. Attached as Exhibits 9 14 are true and correct copies of documents from the United States Patent and Trademark Office
showing HomeAway's registered marks.
11. HomeAway has expended millions of dollars to develop its business plan, unique
Birdhouse Mark, and "HomeAway" branding and, prior to its initial public offering in 20 II had
raised more than $450 million in private investments on the strength of that brand. The results of
HomeAway's investment is tangible and substantial: "HomeAway" and the Birdhouse Mark as
well as HomeAway's excellent service have attracted hundreds of thousands of Owners and
Travelers, and have generated enormous goodwill as the world's lmgest and most complete
online marketplace of vacation and travel rental Properties. Through its efforts and expenditures,
HomeAway has established itself in the marketplace among its customers and among vacationers
as a reliable and credible source for searching, viewing, and locating vacation rental Propetiies.
12. After HomeAway had established itself as a leader and invested heavily in its
Birdhouse Mark, Airbnb, Inc. ("Airbnb" or "Defendant") launched an online travel rental
website in2008. According to public statements by Airbnb's Chief Executive Officer and other
Airbnb representatives, Defendant's website primarily allows Travelers to rent apmiments in
cities (i.e., the advetiiser's primary residence) in the United States and worldwide. Defendant
has described its services as "the easiest way for people to monetize their extra space."
Defendant provides guidance on rates, processes payments and has systems that do not allow
independent interaction between an Owner and a Traveler until after Defendant has collected
payment from the Traveler. Additionally, my understanding is that Defendant receives the bulk
of its revenue by charging the Traveler approximately 12-15% for the opp01iunity to rent via its
website. Attached as Exhibit 22 is a screen shot of Defendant's website.
13. Defendant is well aware ofHomeAway and its Birdhouse Mark. For example, in
2011, my fi·iend Brian Chesley, the Chief Executive Officer of Defendant, visited the
headquarters of HomeAway and I personally gave him a tour of the facility, including stopping
to admire the two-story, three dimensional replica of the Birdhouse Mark that dominates the
upper two stories ofHomeAway's headqumiers.
14. To my knowledge, Defendant never before used birdhouses to promote its
business, yet, on December 16, 2013, Defendant launched what it is referring to in the media as
its first ever major multimedia advertising campaign dubbed "Home to You" depicting more
than 50 birdhouses as well as a birdhouse logo similar to HomeAway's Birdhouse Marie
Defendant's "Home to You" promotion ("Birdhouse Promotion") is viewable online at the
Defendant's website (www.birdbnb.com). Defendant's Birdhouse Promotion also appears on
other Internet websites that are fully accessible in the United States twenty-four hours a day,
seven days a week.
Attached as Exhibit 15 are true and cmTect copies of images from
Defendant's birdbnb.com site. Attached as Exhibit 16 is a screen shot of the huffingtonpost.com
where Defendant's Birdhouse Promotion has been linked and displayed.
birdbnb.com website (the "Birdhouse Promotion Site") links to Defendant's primary website
where customers can list or rent Propeliies.
15. Despite Defendant's indisputable knowledge of HomeAway' s prior rights in its
signature brand, the Birdhouse Mark, Defendant's Birdhouse Promotion displays a birdhouse
logo similar to the Birdhouse Mark, placed adjacent to the slogan "Home to You." The use of
the word "Home" next to an approximation of HomeAway's Birdhouse Mark makes
misassociation with HomeAway pmiicularly likely. The use of a birdhouse alongside a nmne
other than HomeAway is consistent with I-IomeAway's use of the Birdhouse Mark in cmmection
with its regionally-appropriate websites, such as AlugueTemporada.com.br in Brazil or Abritel.fr
in France, to denote the websites' association with HomeAway. However, there is no such
relationship between HomeAway and Defendant's Birdhouse Promotion Site.
16. Defendant's Birdhouse Promotion also presents tlu·ee-dimensional birdhouses in
the style of vacation homes, historically HomeAway's primary market segment, as opposed to
apartments m cities, Defendant's primm·y mm·ket segment. Defendant's vacation-home
birdhouses m its Birdhouse Promotion are similar to the three dimensional birdhouses
HomeAway displays at its headquarters and highlights on its public Blueprints website.
Attached as Exhibit 17 are true and correct images of the birdhouses displayed at our
headquatiers and on our Blueprints website.
17. Media coverage of Defendant's Birdhouse Promotion immediately recognized
and called out that the concept appeared to be lifted from HomeAway.
For example, the
AdverBlog wrote "I can't help but wonder if it's just a coincidence that the No. I competitor to
[Defendant] (HomeAway) has a bird house as a logo." Consumers have also noted Defendant's
copying. In a message left by a user on Defendant's Birdhouse Promotion Site, a user writes
"This is so "HOMEAWAY ... " Attached as Exhibits 18
19 m·e true and correct copies of
comments posted online regarding the Birdhouse Promotion. Attached as Exhibit 20 is a list of
some of the media coverage of Defendant's Birdhouse Promotion.
18. Defendant and HomeAway target and provide services to an overlapping class of
travelers for their respective services, tlu·ough overlapping chatmels of trade, i.e. the Intemet.
HomeAway's core market has been primarily vacation properties that are the second or third
home of Owners, which Propetiies are sometimes used by the Owner, but are maintained in a
manner to be suitable for the purpose of renting short-term to fatnilies and groups traveling
together. Before the Birdhouse Promotion, Defendant primarily targeted lessees of rooms in
apartments in cities or even entire apatiments in major cities who may or may not have had
permission from their landlord to sublet their apartments commercially as its core source of
rentable inventmy. Defendant has recently increased its efforts to attract Property listings in the
more traditional vacation destinations, in which HomeAway has long been well-established as a
market leader, and where vacation rentals are embraced as a pati of the economic fabric of the
19. Defendant uses the same advertising media as HomeAway, including online
search and television, and has specifically targeted online customers with its Birdhouse
Promotion. Attached as Exhibit 21 is a true and conect copy of a New York Times Article
describing Defendant's planned use of online search and television.
20. Defendant's recent actions suggest that it is targeting HomeAway and Travelers
familiar with the HomeAway Websites and services, particularly, through its Birdhouse
21. Based on the information I have seen online and reactions to the Birdhouse
Promotion it is likely that consumers will connect the use of a birdhouse logo on Defendant's
Birdhouse Promotion Site with HomeAway, indeed the comments posted suggest that this has
already happened. Because HomeAway uses the Birdhouse Mark alongside brand-names other
than HomeAway in the ordinary course of its business (such as Abritel.fr, for example), it is
extremely likely that such consumers will be at least initially confused as to whom they are really
dealing with given HomeAway's consistent global branding using the Birdhouse Mark, it is also
extremely likely that consumers will conclude, in error, that Airbnb is a HomeAway-affiliated
site or is sponsored or licensed by HomeAway. In light of HomeAway's acquisitions of other
companies in the online travel space, it is likely that customers would perceive the Birdhouse
Promotion as an indicator that Airbnb has been acquired by HomeAway and operates as part of
HomeAway's birdhouse-branded marketplace.
22. The evidence that is available suggests that Airbnb is attempting to trade on the
excellent reputation and goodwill that HomeAway enjoys in the Birdhouse Mark which
HomeAway has achieved through its innovative design work and over 8 years of substantial
investment in business plam1ing, marketing, and product development.
Pursuant to 28 U.S.C. § 1746(2), I declare under penalty of petjury that the foregoing is
true and conect.
Executed on December 23, 2013.
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