Duff on Hospitality Law

Following last week’s holiday break, we are once again sharing each week what we feel are the most noteworthy stories in the distribution, loyalty program and (occasionally) short-term rental fields/industries. We hope you enjoy.

Global Distribution Systems Become Latest EU Target
("European Commission Is Probing Travel Distribution Systems for Anticompetitive Practices," Skift Travel News, November 25, 2018)
While we routinely feature stories detailing competition authorities’ pursuits of the major online distributors, it is rare for those same authorities to announce an investigation or enforcement effort directed against the legacy global distribution systems. This past holiday week, however, the European Commission announced investigations of both Amadeus and Sabre over their possibly anti-competitive contracts with airlines and travel agents. According to the Commission’s announcement, it was looking into whether the GDS’s “full content” contract clauses illegally prohibited airlines and travel agents from distributing and/or sourcing tickets through alternative channels. Those familiar with the issue will recall the number of lawsuits in recent years between airlines and the GDSs over airlines’ desire to distribute inventory through alternative channels.

Stories detailing investors’ renewed interest in travel technology feature prominently in this week’s stories.

Lola Finds a Home?
("Will Lola’s New Partnership With AmEx Revive the Struggling Startup?" Skift Travel News, November 13, 2018)
Readers of our Update will likely recall the many stories we have featured over the past few months about Lola, the mobile-only, chat-powered travel booking application featuring real live AI-enabled travel agents. Since introducing the application in 2016, co-founder Paul English has evolved Lola from a leisure / business travel application, to an individual business travel application, to now, with its recently announced partnership with American Express Global Business Travel, a broad-based, managed business travel application for the masses. With this partnership, Lola gains access to thousands of repeat business travelers (together with the benefit of American Express’ many preferred hotel and airline connections), while American Express gains access to technology that may allow it to provide travel management services to businesses traditionally too small to use American Express’ traditional travel tools.

Regulation of Large Online Platforms is Coming to Japan
("Online platforms may face stricter rules, enforcement in Japan, panel says," MLex, November 5, 2018) (subscription required)
Following up on a story (and prediction) included in last week’s Update, it appears that Japan (through a panel of experts operating under the direction of the Japanese Ministry of Economy, Japanese Ministry of Trade and Industry and Japan Fair Trade Commission) is definitely heading toward more aggressive review and likely regulation of large online platforms operating within Japan. The 15-member panel has been working since July and expects to begin interviews next month with representatives of the online platforms as well as the domestic businesses that deal with them. The results of the panel’s efforts will serve as the basis for establishing key principles for regulating the platforms (which may then take the form of amendments to existing laws and regulations or new ones). Additional detail about the panel’s work and the direction it is headed should be available toward the end of the year.

This week’s Update features a variety of stories covering search, short-term rentals, wholesalers and traditional OTAs. This week's highlights include:

Much Ado About Nothing
("How Google's Newly Expanded Trademark Policy Will Impact Hotels," Duff on Hospitality Law Blog, October 24, 2018)
Over the past several weeks there have been a number of prominent stories in the traditional travel technology, distribution and sales and marketing outlets lamenting the profound effects of recent changes to Google’s trademark and keyword practices. These stories prompted my trademark colleagues to re-examine Google’s policies and to update our clients on what, if anything, really changed. As you can read from their recent blog post below, not a lot has changed.

This week's Update includes a story detailing yet another state’s efforts to close existing tax loopholes so that it may collect proper sales/occupancy taxes from OTAs. I hope you enjoy.

Pennsylvania Closes Tax Loophole
("PA Senate Approves Bill to Close Sales Tax Loophole with Online Travel Companies, PA Senate GOP, October 26, 2018)
For years now we’ve read and featured stories about enterprising legal counsel convincing state and local governments to pursue claims against merchant-model OTAs for failure to pay sales or occupancy taxes on the full selling price charged to guests by the OTAs (instead of paying taxes only on the net rate paid by OTAs to the hotel supplier). More often than not these claims ended in decisions against the local governments on the basis that the operable tax statute was not written to apply to the mark-up or margin added by OTAs to the net rates they received (among other things).  Pennsylvania is determined to do something about that. Last week, the Pennsylvania Senate passed legislation making clear that the State’s sales tax applies to the full selling price charged by OTAs operating in the State. The Senate passed legislation now moves on to the Pennsylvania House of Representatives for further consideration.

Booking Holdings, Expedia Group and...Kiwi? 
("Online Travel Agency Kiwi Has a Plan to Fight the Giants," Skift Travel News, October 18, 2018)
Conventional wisdom says that start-ups in the online travel agent space will never make it far because of the absolute dominance of established platforms, Booking Holdings, Expedia Group, etc.  Kiwi, a Czech Republic based startup, may be proving otherwise. Through a combination of superior guest service, currency arbitrage, diverse demand generators, powerful partnerships and just plain luck, Kiwi is making a name for itself. This past year alone (2017) it processed airline bookings with a gross value of over $925 million. This year it expects to earn over $200 million in revenue. Whether Kiwi can continue its luck streak remains to be seen, but Kiwi is definitely a name to remember.

Google recently updated its trademark policy, and although some believe the changes are cause for concern, citing increased costs per click, that may not be the case. The following aims to bring some clarity to the issue.

Google has consistently expanded its Google Ads policy in allowing trademark keyword bids and the use of trademarked terms in the text of advertisements. The tech giant has always expanded these policies by regions, and just last week, Japan was added to the mix.

Expedia Expands Its Voice-Activation Résumé
("Expedia Brings Voice Bookings, Cancellations and Rewards to Google Assistant," Skift Travel News, October 9, 2018)
It was less than two years ago that we featured Expedia’s introduction of limited functionality (or “skill”) for Amazon’s Alexa devices. Now, Expedia is bringing far more robust functionality to devices powered by Google Assistant. According to Expedia, this new functionality will allow travelers to search hotels and book (or cancel) reservations and access and use their Expedia loyalty program accounts. Although this new functionality will debut for U.S. travelers in English only, additional languages are planned. If you have not already done so, it may be time to update those keyword and negative keyword contract provisions.

Another relatively quiet week in the world of distribution.

Hopper Is Poised for Growth
("Hopper Raises $100 Million More for Airfare and Hotel Rate Prediction," Skift Travel News, October 3, 2018)
We brought you our first Hopper story back in January following its announced launch of Hopper Hotels. The predictive pricing based booking platform was back in the news this past week with its announcement that it had closed a $100 million Series D round of financing (at a valuation of $750 million). According to Hopper, the investment will fund adding market managers in key international markets to secure more direct airline and hotel inventory. Bucking the trend of predictive analytics travel companies before them (think Farecast), Hopper is one of the few booking platforms to successfully leverage its airfare and hotel room rate pricing analytics as a differentiator among other online booking sites.

And You Thought Today’s Health and Safety Requirements Were Tough
("China Prepares Unprecedented Online Tourism Regulation," Stories, September 28, 2018) 
Those of you who have negotiated online travel agency agreements likely recall the dreaded “Health and Safety” provisions mandated by most online travel agencies. As proposed, these provisions allow online travel agencies to reach deep into participating hotels’ operations to evaluate the hotels’ preparedness for handling health and safety emergencies. Those provisions are likely to get much tougher – at least for those of you with properties or other operations located in China. According to a report issued by Bloomberg last week, the Chinese Ministry of Culture and Tourism is poised to issue sweeping new regulations targeting online travel agencies and platforms. According to Bloomberg, the new regulations would require online travel providers to “improve rescue and emergency plans, better vet and manage their on-ground service providers, purchase liability insurance and protect clients’ personal information.” The regulations are likely to take effect later this year following a mandatory 60-day public comment period.