The lawsuit Visa U.S.A. filed this week against American Express Co. may focus as much attention on Visa's rulemaking procedures as on its trademark infringement claims.
After Visa filed the suit in hopes of derailing a controversial marketing alliance between American Express and Advanta Corp., the latter companies accused the card association of changing its rules in the middle of a game.
Advanta said it carefully designed Rewards Accelerator - a program that allows its MasterCard and Visa customers to gain points in Amex's Membership Rewards program - so as not to violate Visa's rules against co- marketing with a competitor.
But simultaneously with its announcement Monday of the legal filing in U.S. District Court for the Northern District of California in San Francisco, Visa said it amended its regulations to "reaffirm" its prohibitions.
Advanta chief executive officer, Alex W. Hart said it was "inappropriate that (Visa) would change (the rules) after the fact."
In an interview Tuesday, Visa U.S.A. president Carl Pascarella maintained it was a clarification, rather than a change in operating regulations. He hit hard on the trademark issue.
"American Express is using the Visa trademark as a lure to sell the American Express card," he said. "We want to make sure that the American Express people are clear on the fact that we will not accept their behavior any more (when it) blurs the line between American Express and Visa."
Visa's complaint spells out "two important ways" in which American Express and Advanta "impinge(d) upon Visa's property rights and competitive interests.
"First, it enables Amex to appropriate Visa's goodwill by using the Visa name and associated marks to enhance Amex's competing card products and its rewards program," while reducing competition between brands and creating customer confusion.
"Second," the complaint went on, "it gives Amex a significant participation in the risks and rewards of a Visa card program akin to that enjoyed by Visa members."
In the lawsuit - the latest in a series of antitrust and trademark actions roiling the bank card industry - Visa indicated that it threatened to take sanctions against Advanta if it continued with Rewards Accelerator.
Mr. Hart said Advanta has no intention of dropping out of Visa, but is reviewing its options.
Visa said that without the leverage of membership rules, its only recourse against American Express was to sue.
Mr. Pascarella said Visa is usually advised of members' plans to issue new products in advance of their launch, but in this case Advanta notified Visa after the fact.
According to its written complaint, Visa "affirmed the intent" of its operating regulation by specifying forbidden alliances, including American Express, Dean Witter, Discover & Co., and Membership Rewards.
Some legal experts said Advanta could invoke the "changing of rules in the middle of the game" defense against Visa.
An attorney familiar with Visa's litigation history said "Visa continually adopts new rules each time there is a market development."
Other observers said American Express will defend itself by alleging that Visa has been illegally restricting its members from working with competing card organizations.
As of early Tuesday, American Express had not seen a copy of the complaint, said a spokesman. But the company, which has been fighting Visa on other, out-of-court fronts to allow member banks to work more closely with Amex, said it saw no merit in the allegations against it.
Visa filed another lawsuit against American Express in October, challenging the validity of American Express' trademark on the Platinum Card. That suit was a response to an earlier one that American Express filed against First USA Bank, a Visa member that is marketing a "Platinum" card that American Express saw as a violation of its rights.
Donald I. Baker, a former assistant attorney for antitrust, who now runs his own law firm in Washington, said the new suit covering Rewards Accelerator "reflects how terribly important brand names are in this business."
Visa, which has won most of its important court battles over the years, also faces a challenge from retailers to its debit card policies, and with MasterCard it is under Justice Department antitrust scrutiny for reasons not publicly clarified.