Wednesday, April 25, 2007

Good Bank Brands Make Bad Bank Trademarks

Law review article by John M. Conley and Jayne C. Hunter - The Curse of History: Good Bank Brands Make Bad Bank Trademarks.

From the conclusion:

From a normative standpoint, it is clear that trademark law has never offered any special accommodations to the banking business, and shows no likelihood of doing so in the future. Nor should it. Unlike patent and some aspects of copyright law, which have developed highly technical and frequently unpredictable doctrines, trademark decisions have consistently been based on common-sense assessments of how consumer markets work. Although new technologies have sometimes posed novel questions (for example, whether use of someone else’s trademark as an Internet metatag is infringement), the framing of the analyses has been remarkably consistent and the answers given tolerably predictable over time and across industries. Neither banking’s economic and social significance nor its quirky history creates a mandate for special treatment.

This means that banking must come to terms with trademark law in its present state. As the case law we have reviewed indicates, banking has seemingly ignored trademark law for much of its history. There may have been understandable reasons for this in the past, but those reasons are now irrelevant. As bankers (and their lawyers) show increasing interest in making aggressive “offensive” use of trademarks, they must do the work of understanding how trademarks are established, strengthened, and protected. With that in mind, we offer the following practical thoughts:

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