EXHIBIT 10.41
FORM OF AMENDED & RESTATED TRADEMARK LICENSE AGREEMENT
This Amended & Restated Trademark License Agreement (the "Agreement") is
made effective as of the _____ day of ________, 2005, by and between CONTINENTAL
AIRLINES, INC. ("Continental"), a corporation duly organized and validly
existing under the laws of the State of Delaware, U.S.A., with its principal
office at 0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxx, X.X.X. 00000, and COMPANIA PANAMENA
DE AVIACION, S.A. (together with its Affiliates that are reasonably acceptable
to Continental in terms of safety and quality of service, "COPA"), a corporation
(sociedad anonima) duly organized and validly existing under the laws of the
Republic of Panama ("Panama"), with its principal office at Ave. Xxxxx Xxxxxxxxx
y Xxxxx 00, Xxxxxxxx 0000, Xxxxxx 0, Xxxxxx. "Affiliate" shall have the meaning
given to such term in the Alliance Agreement.
RECITALS
WHEREAS, Continental and COPA entered into an alliance agreement dated May
22, 1998, as amended and restated on the date hereof , ("Alliance Agreement")
regarding the providing of airline transportation services;
WHEREAS, Continental is the owner of the names, marks, trade dress, and
associated design elements set forth in Schedule 1 hereto, including any United
States and foreign registrations and pending United States and foreign
applications therefor and the goodwill attendant thereto ("Continental Marks");
WHEREAS, COPA is the owner of the names, marks, trade dress, and
associated design elements set forth on Schedule 2 hereto, including any United
States and foreign registrations thereon and pending United States and foreign
applications therefor and the goodwill attendant thereto ("COPA Marks");
WHEREAS, Continental and COPA agreed in the Alliance Agreement to develop
a new brand for COPA that will extend the brand identity of Continental (i.e.,
it will, subject to this Agreement, utilize as its principal elements the
Continental Marks);
WHEREAS, in connection with the development of COPA brand, the Continental
Marks are being used as part of the composite marks and trade dress set forth on
Schedule 3 hereto ("Continental/COPA Co-Branded Marks") pursuant to the terms of
this Agreement; and
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WHEREAS Continental and COPA have previously entered into a Trademark
License Agreement dated May 24, 1999, and, for good and valuable consideration
the parties now desire to amend and restate that prior Agreement through this
Agreement;
NOW THEREFORE, in consideration of the mutual promises and covenants
contained herein, the receipt and sufficiency of which are hereby acknowledged,
Continental and COPA agree as follows:
1. Grant. Subject to the provisions of Section 2 herein, Continental
hereby grants to COPA, and COPA accepts, a non-exclusive, personal,
non-transferable, royalty-free right and license to adopt and use the
Continental Marks as part of the Continental/COPA Co-Branded Marks in connection
with the rendering of airline transportation services, subject to the conditions
and restrictions set forth herein. Continental and COPA may mutually agree in
writing to add additional Continental/COPA Co-Branded Marks to the list
specified in Schedule 3.
2. Limitations on Continental Grants to Third Parties. Continental
shall not license the globe element of the Continental/COPA Co-Branded Marks to
any airline without the prior written consent of COPA. Continental further
agrees that it will not license the Continental/COPA Co-Branded Marks or the
COPA Marks to any other airline after the termination of this Agreement without
the prior written consent of COPA, and at no time shall Continental license any
xxxx that incorporates or refers to the term COPA or any other xxxx owned or
used exclusively by COPA. The limitations detailed in this paragraph 2 shall
survive the termination of this Agreement.
3. Use and Ownership of the Continental/COPA Co-Branded Marks. COPA is
not required to use the Continental/COPA Co-Branded Marks. However, to the
extent that COPA does use such marks, COPA shall use the Continental Marks as
part of the Continental/COPA Co-Branded Marks only as authorized herein by
Continental and in accordance with such standards of quality as Continental may
establish. Continental shall at all times remain the owner of the
Continental/COPA Co-Branded Marks and any registrations thereof. COPA's use of
any Continental Marks and the Continental/COPA Co-Branded Marks shall, in all
commercially reasonable instances, clearly identify Continental as the owner of
such marks to protect Continental's interest therein. All use
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by COPA of the Continental Marks as part of the Continental/COPA Co-Branded
Marks shall inure to the benefit of Continental and COPA shall obtain no right,
title or interest in and to the Continental Marks or the elements of the
Continental/COPA Co-Branded Marks derived from the Continental Marks, or any
other word, words, term, design, name or xxxx that is confusingly similar to the
Continental Marks. Continental agrees that it shall obtain no right, title, or
interest in and to any element of the Continental/COPA Co-Branded Marks that are
derived exclusively from COPA's marks, such as the xxxx COPA and the beige
"streak" design element of the Continental/COPA Co-Branded Marks, thus
preserving the distinctive reference to COPA's identity. Should Continental
cease all use of and abandon its "Globe Design" (such design being shown in
Schedules 1-1 and 1-2) such that Continental no longer uses the "Globe Design"
or a similar design during the term of this Agreement, Continental will promptly
assign all right, title, and interest in the globe element of the
Continental/COPA Co-Branded Marks, including United States Trademark
Registration No. 2,360,006, to COPA.
4. Registration. In the event COPA wishes to have any of the
Continental/COPA Co-Branded Marks registered in any jurisdiction, it shall
submit to Continental a written request for registration. Continental agrees
that it will permit any such registrations as requested. All expenses incurred
in connection with such requests for registration of the Continental/COPA
Co-Branded Marks shall be paid by COPA. COPA shall promptly transfer to
Continental, in accordance with applicable law, any application(s) filed by or
on behalf of COPA to register any Continental/COPA Co-Branded Xxxx. COPA shall
retain all rights in elements of any Continental/COPA Co-Branded Xxxx derived
from the COPA Marks, and may register such elements in its own name without
Continental's prior approval.
5. Continental-Controlled Litigation. Continental at its sole expense
shall take all steps that in its opinion and sole discretion are necessary and
desirable to protect the Continental/COPA Co-Branded Marks against any
infringement or dilution of any element of the Continental/COPA Co-Branded Marks
derived from the Continental Marks. COPA agrees to cooperate fully with
Continental in the defense and protection of the Continental/COPA Co-Branded
Marks as reasonably requested by Continental. COPA shall report to Continental
any infringement or imitation of, or challenge to, the
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Continental/COPA Co-Branded Marks, immediately upon becoming aware of same. COPA
shall not be entitled to bring, or compel Continental to bring, an action or
other legal proceedings on account of any infringements, imitations, or
challenges to any element of the Continental/COPA Co-Branded Marks derived from
the Continental Marks without the written agreement of Continental. Continental
shall not be liable for any loss, cost, damage or expense suffered or incurred
by COPA because of the failure or inability to take or consent to the taking of
any action on account of any such infringements, imitations or challenges or
because of the failure of any such action or proceeding. In the event that
Continental shall commence any action or legal proceeding on account of such
infringements, imitations or challenges, COPA agrees to provide all reasonable
assistance requested by Continental in preparing for and prosecuting the same.
6. COPA-Controlled Litigation. COPA at its sole expense shall take all
steps that in its opinion and sole discretion are necessary and desirable to
protect the Continental/COPA Co-Branded Marks against any infringement or
dilution of any element of the Continental/COPA Co-Branded Marks derived from
the COPA Marks. Continental agrees to cooperate fully with COPA in the defense
and protection of the Continental/COPA Co-Branded Marks as reasonably requested
by COPA. Continental shall report to COPA any infringement or imitation of, or
challenge to, the Continental/COPA Co-Branded Marks, immediately upon becoming
aware of same. Continental shall not be entitled to bring, or compel COPA to
bring, an action or other legal proceedings on account of any infringements,
imitations, or challenges to any element of the Continental/COPA Co-Branded
Marks derived from the COPA Marks without the written agreement of COPA. COPA
shall not be liable for any loss, cost, damage or expense suffered or incurred
by Continental because of the failure or inability to take or consent to the
taking of any action on account of any such infringements, imitations or
challenges or because of the failure of any such action or proceeding. In the
event that COPA shall commence any action or legal proceeding on account of such
infringements, imitations or challenges, Continental agrees to provide all
reasonable assistance requested by COPA in preparing for and prosecuting the
same.
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7. Term. The initial term of this Agreement shall be coextensive with
the term of the Alliance Agreement referenced above. The Agreement may be
extended past the initial term, as set out in Section 9 below ("Wind-Up Term").
8. Termination.
8.1 Material Breach. This Agreement and the non-exclusive license
granted herein may be terminated by either party in the event of a material
breach of this Agreement by the other party, provided that the breaching party
does not cure such material breach to the reasonable satisfaction of the other
party within thirty (30) days of receipt of written notice specifying the nature
of the breach. The termination of this Agreement and the non-exclusive license
granted herein shall be effective after the expiration of said thirty (30) day
period, unless the identified material breach is cured within such period. 8.2
Alliance Agreement. This Agreement and the non-exclusive license granted herein
may be terminated by either party if the Alliance Agreement is duly terminated
(other than pursuant to Section D.3(a) or D.3(b)(iv) of the Alliance Agreement)
by the terminating party pursuant to the terms thereof.
9. Wind-Up.
9.1 Continental Termination. Upon termination of this Agreement by
Continental pursuant to Sections 8.1 or 8.2 hereof (i) COPA shall cease all use
of the globe element of the Continental/COPA Co-Branded Marks within two (2)
years of the termination of this Agreement (unless such termination was related
to a safety related breach by COPA, in which case COPA shall cease all use of
the globe element of the Continental/COPA Co-Branded Marks within one (1) year
of the termination of this Agreement) and (ii) COPA shall cease all use of the
Continental/COPA Co-Branded Marks that encompass any other Continental Xxxx(s)
within 45 days of such termination. COPA's post-termination use of the
Continental/COPA Co-Branded Marks shall comply with all conditions and
limitations set forth in this Agreement, as if this Agreement were still in
effect.
9.2 Other Termination. Upon termination of this Agreement by COPA
pursuant to Sections 8.1 or 8.2 hereof or the initial term of this Agreement
ends because either party terminates the Alliance Agreement pursuant to Section
3.D(a) or
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3.D(b)(iv) thereof, the initial term of this Agreement will end and this
Agreement will enter the Wind-Up Term. The Wind-Up Term will be in effect for so
long as there exists a Continuing Relationship between COPA and Continental. For
purposes of this Agreement, "Continuing Relationship" shall mean that
Continental and COPA (a) are members of the same global Alliance, and/or (b) are
parties to a commercial agreement with respect to frequent flyer cooperation or
code share service between Continental and COPA. Although the parties will no
longer have a Continuing Relationship, prior to the Applicable Date, COPA may
request and Continental shall consider extending the Wind-up Term. As of the
date that there ceases to be a Continuing Relationship between COPA and
Continental (the "Applicable Date"), the Wind-Up Term will immediately end and
the Agreement will automatically terminate. Thereafter, (i) COPA shall cease all
use of the Continental/COPA Co-Branded Marks that encompass any Continental
Xxxx(s) as part of its airplane paint scheme as soon as practicable but in no
event later than within five (5) years of the Applicable Date, (ii) COPA shall
cease all use of the Continental/COPA Co-Branded Marks that encompass any
Continental Xxxx(s) on airport and other signage as soon as practicable but in
no event later than within eighteen (18) months of the Applicable Date, and
(iii) COPA shall cease all other use of the Continental/COPA Co-Branded Marks
that encompass any Continental Xxxx(s) as soon as practicable but in no event
later than within nine (9) months of the Applicable Date. COPA's
post-termination use of the Continental/COPA Co-Branded Marks shall comply with
all conditions and limitations set forth in this Agreement, as if this Agreement
were still in effect. COPA further agrees that after the Applicable Date it
shall not repaint any airplanes with a paint scheme containing the
Continental/COPA Co-Branded Marks that encompass any Continental Xxxx(s), nor
will it replace or re-stock or otherwise contract any materials containing the
Continental/COPA Co-Branded Marks that encompass any Continental Xxxx(s). For
example, if one year after the Applicable Date, a COPA airplane needs to be
repainted (or a sign replaced), COPA shall not repaint the airplane (or replace
the sign) with a paint scheme (or a new sign) containing the Continental/COPA
Co-Branded Marks that encompass any Continental Xxxx(s).
9.3 Post Wind-Up. After the applicable wind-up period, COPA shall
not make use of any word, words, term, design, name, trade dress, or xxxx
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confusingly similar with the Continental Marks so that any such word, words,
term, design, name or xxxx would present a likelihood of confusion or otherwise
suggest a continuing relationship between COPA and Continental, and Continental
shall not make use of any word, words, term, design, name or xxxx confusingly
similar with the COPA Marks so that any such word, words, term, design, name or
xxxx would present a likelihood of confusion or otherwise suggest a continuing
relationship between COPA and Continental.
10. Relationship of the Parties. The relationship of Continental and
COPA pursuant to this Agreement shall be that of independent contractors. The
relationship between Continental and COPA by virtue of this Agreement is not
that of partners, joint venturers, or principal/agent. Continental shall not by
virtue of this Agreement control or have the right to control the methods and
means by which COPA offers its goods or services in association with the
Continental/COPA Co-Branded Marks. In the event that COPA fails to use the
Continental/COPA Co-Branded Marks in accordance with Continental's quality
standards, Continental shall not have the right pursuant to this Agreement to
exercise any control over the activities of COPA; instead, Continental's right
pursuant to this Agreement shall be to terminate COPA's right to use the
Continental/COPA Co-Branded Marks. COPA shall defend, indemnify and hold
harmless Continental from and against any and all third party claims, demands or
causes of action for personal injury, property damage, or economic loss caused
by COPA's actions or inactions that in any way involve, arise out of, relate to
or are based upon COPA's use of the Continental/COPA Co-Branded Marks (other
than a third party claim that Continental does not have clear title to the
Continental/COPA Co-Branded Marks or that an element of a Continental/COPA
Co-Branded Xxxx infringes the third party's trademark rights), and all losses,
expenses (including reasonable attorneys fees), liabilities or judgment incurred
by Continental as a result of such third party claims, demands or causes of
action. This contractual right of indemnification shall apply even if
Continental is alleged or adjudicated to have been negligent or otherwise at
fault in allowing COPA to use the Continental/COPA Co-Branded Marks.
11. Assignment. The non-exclusive license granted by Continental to
COPA is personal to COPA and may not be assigned, sub-licensed or transferred
by COPA in
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any manner without the written consent of a duly authorized representative of
Continental.
12. Miscellaneous.
12.1 Entire Agreement. This Agreement constitutes the entire
agreement and understanding between the parties with respect to the subject
matter hereof and merges all prior discussions, representations and negotiations
with respect to the Continental/COPA Co-Branded Marks. Notwithstanding the
foregoing, the provisions of Section F.5. of the Alliance Agreement shall remain
in effect.
12.2. Governing Law. This Agreement shall be interpreted, construed
and enforced pursuant to the laws of the State of Texas.
12.3 Amendments Only in Writing. This Agreement may only be amended
or modified in a writing signed and subscribed to by both parties.
12.4. Severability. The provisions of this Agreement are independent
of each other and the invalidity of any provision or a portion hereof shall not
affect the validity or enforceability of any other provision. In the event that
any particular provision is found to be invalid or unenforceable, the parties
will negotiate in good faith to replace such provision with a valid and
enforceable provision that approximates as closely as possible the intent of the
parties as reflected in the original provision.
12.5 Waiver. Any delay or failure on the part of either party to
enforce its rights hereunder to which it may be entitled shall not be construed
as a waiver of the right and privilege to do so at any subsequent time.
12.6 Binding Agreement. The provisions of this Agreement will be
binding upon and inure to the benefit of the parties and their respective
subsidiaries, related and affiliated companies, and agents.
12.7 Counterparts. This Agreement shall be executed in
counterparts, each of which shall be deemed to be an original.
12.8 Section Headings. Any section headings herein are for
convenience only and shall not be considered in the interpretation of this
Agreement.
12.9 Bankruptcy. The parties hereto acknowledge and accept the
provisions of 11 U.S.C. Section 365(n) governing the rights of licensees in the
event of a licensor's bankruptcy.
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12.10 Further Assurances. Each party agrees to provide such further
assurances and execute such additional documents as may be reasonably requested
by the other in furtherance of the purpose and terms of this Agreement.
IN WITNESS WHEREOF, Continental and COPA, appearing through their duly
authorized representatives, having executed this instrument to be effective as
of the date first above written.
CONTINENTAL AIRLINES, INC. COMPANIA PANAMENA DE
AVIACION, S.A.
By: ___________________________ By: __________________________
Title:__________________________ Title:_________________________
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SCHEDULE 1
CONTINENTAL MARKS
BUSINESSFIRST
CONTINENTAL
CONTINENTAL AIRLINES
CONTINENTAL CARGO
CONTINENTAL VACATIONS
ONEPASS
PRESIDENTS CLUB
PRESTIGE PACKS
QUICKPAK
REWARDONE
WORK HARD. FLY RIGHT.
WORLD OF THANKS
CONTINENTAL'S GLOBE LOGO (DESIGN) IN COLOR
CONTINENTAL'S GLOBE LOGO (DESIGN) IN BLACK & WHITE
CONTINENTAL & DESIGN
e.g.:
(CONTINENTAL AIRLINES LOGO)
Schedule 1-1
SCHEDULE 1
CONTINENTAL MARKS
CONTINENTAL AIRLINES
"AIRCRAFT LIVERY"
Schedule 1-2
SCHEDULE 2
COPA MARKS
COPA
XXXXXXX.XXX
XXXXXXX.XXX ENTRA, AHORRA Y GANA
COPA AIRLINES
COPA AIRLINES BUSINESS REWARDS
COPA AIRLINES CLASE EJECUTIVA
COPA CONVENCIONES
COPA CONVENTION
COPA AIRLINES CONVENTION
COPAPASS
COPACLUB
COPA CARGO
COPA AIRLINES CARGO
COPA AIRLINES PRIORITY CARGO
COPA COURIER
COPA AIRLINES CORPORATE
COPA VACACIONES
COPA VACATIONS
COPA AIRLINES VACATIONS
E-RRESISTIBLES
VOLANDITO
LA FORMA MAS DIRECTA DE CONECTARSE CON AMERICA
LA GRAN LINEA AEREA DE PANAMA
THE AIRLINE OF PANAMA
HUB OF THE AMERICAS - PANAMA
HUB DE LAS AMERICAS
PANORAMA DE LAS AMERICAS
3-prong beige streak design
COPA AND DESIGN
e.g.:
Schedule 1-2
