Alaska Airlines Inc. v Virgin Aviation TM Limited & Anor
| Judgment Date | 03 October 2025 |
| Neutral Citation | [2025] EWHC 2505 (Comm) |
| Date | 03 October 2025 |
| Year | 2025 |
Neutral Citation Number: [2025] EWHC 2505 (Comm)
Case No: CL-2022-000507
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
KING'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
Date: 03/10/2025
Before :
MR JUSTICE FOXTON
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Between :
ALASKA AIRLINES INC. Claimant
- and -
(1) VIRGIN AVIATION TM LIMITED
(2) VIRGIN ENTERPRISES LIMITED Defendants
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Shaheed Fatima KC and Daniel Burgess (instructed by Pallas Partners LLP) for the
Claimant
Daniel Toledano KC and Joshua Crow (instructed by Slaughter and May) for the
Defendants
Hearing date: 16 September 2025
Draft to parties: 19 September 2025
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Approved Judgment
This judgment was handed down remotely at 10.30am on 03 October 2025 by circulation to
the parties or their representatives by e-mail and by release to the National Archives.
.............................
Mr Justice Foxton
Approved Judgment
Alaska Airlines Inc v Virgin Aviation
Mr Justice Foxton :
1. This is the hearing of:
i) the Defendants’ (“Virgin”’s) application for summary judgment on its
counterclaim; and
ii) the Claimant’s (“Alaska”’s) application for permission to amend its Particulars of
Claim.
2. The background to the dispute and the procedural history can be relatively briefly
summarised, because it has been set out in prior court decisions to which I refer below.
This summary takes the position largely from those judgments:
i) In 2005 and 2007, Virgin America Inc. (“Virgin America”) and Virgin entered
into trade mark licensing agreements which set out the terms on which Virgin
America was permitted to operate an airline in the US under the Virgin brand,
and exclude others from doing so.
ii) The 2005 license agreement had led to regulatory concerns on the part of the US
Department of Transport as to Virgin America’s “nationality”, which concerns in
turn led to the 2007 revision to the licence introducing clause 3.7.
iii) In 2014, Virgin America decided to launch an IPO. Issues raised by the IPO led
Virgin America and Virgin to enter into a re-stated licensing agreement (“the
TMLA”) on 19 November 2014. Provision for the payment of a “Minimum
Royalty” (“the MR”) was introduced at this time.
iv) On 20 July 2018, Virgin American merged with Alaska and ceased to exist,
Alaska succeeding to the TMLA.
v) In 2019, Alaska ceased to use the Virgin brand, and issues arose as to whether it
remained obliged to pay royalties to Virgin under the TMLA.
vi) That issue was resolved in Virgin’s favour by a decision of this court ([2023]
EWHC 322 (Comm), a decision of Mr Christopher Hancock KC) which was
upheld by the Court of Appeal ([2024] EWCA Civ 622).
3. In 2022, Alaska identified a further reason why it said it was not obliged to pay
royalties under the TMLA, namely that Virgin had breached clauses 3.2 and/or 3.3 of
the TMLA by operating a customer loyalty scheme which allows customers to use
loyalty points for domestic flights with Delta Air Lines. I will refer to the obligations
allegedly breached as “the Exclusivity Obligation”. Alaska commenced these
proceedings to establish a breach of the Exclusivity Obligation and that the breach had
the effect of bringing the TMLA to an end through termination at law in September
2022. Virgin has counterclaimed for allegedly outstanding MR.
4. For present purposes, it is sufficient to note the following:
i) While Virgin disputes that there was any breach of the Exclusivity Obligation
(renunciatory, repudiatory or otherwise) or that it had the effect of bringing the
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1 cases
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Alaska Airlines Inc. v Virgin Aviation TM Ltd
...It was accepted (and follows inexorably) that if I am so satisfied, the fact there will be further proceedings in which the TMLA[2025] EWHC 2505 (Comm) Mr Justice Foxton Case No: CL-2022-000507 IN THE HIGH COURT OF JUSTICE BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES KING'S BENCH DIVIS......