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Commerce Bancorp, Inc. v. BankAtlantic

September 25, 2003

COMMERCE BANCORP, INC., HONORABLE JEROME B. SIMANDLE PLAINTIFF,
v.
BANKATLANTIC, DEFENDANT.



The opinion of the court was delivered by: Simandle, District Judge

OPINION

This motion comes before the Court upon defendant BankAtlantic's motion for summary judgment on plaintiff Commerce Bancorp, Inc.'s claims for infringement and unfair competition relating to the mark AMERICA'S MOST CONVENIENT BANK. Defendant BankAtlantic, which uses the slogan FLORIDA'S MOST CONVENIENT BANK, operates its business in the state of Florida, approximately 1000 miles from Commerce's four-state territory of New Jersey, New York, Delaware, and Pennsylvania. Defendant argues that there would be no actionable infringement of Commerce's mark AMERICA'S MOST CONVENIENT BANK even if the parties operated in the same territory, that Commerce cannot obtain relief where the use of the two slogans are in geographically distinct regions, and that Commerce cannot establish a likelihood of confusion among its purchasers.

For the reasons discussed herein, defendant BankAtlantic's motion for summary judgment will be granted.

I. BACKGROUND

Plaintiff Commerce is a provider of banking, mortgage, insurance, investment, and related financial services. (Amended Compl. ¶ 8.) Commerce, founded in 1973 with a single branch in Marlton, New Jersey, has grown to be a full service financial institution, with $10 billion in customer deposits, over $11 billion in assets, over $4.5 billion in loans, and net income of $103 million in 2001. (DiFlorio Aff. ¶¶ 1-2.) As of December 31, 2001, Commerce's banking subsidiaries operated 184 bank branches throughout the mid-Atlantic region, including New Jersey, Pennsylvania, New York and Delaware, with 41 more branches to open in 2002. (Id. ¶ 3.) Approximately 3,500 of its customers reside in Florida, however. (Id.) In 1997, Commerce had almost $14 million in Florida deposits and $5.10 million in Florida loans. (Chart, Second Suppl. DiFlorio Aff. Ex. F.) That number grew to $23.34 million in Florida deposits and $18.83 million Florida loans in 2001, and $48.17 million in Florida deposits and $29.92 million in Florida loans in 2002. (Id.)

Commerce also wholly owns an insurance subsidiary Commerce National Insurance Services, Inc. ("CNIS"), which is an insurance brokerage with annual premium volume of $600 million and over 125,000 customers. (DiFlorio Aff. ¶ 5 & Ex. A, at 34.) In addition, Commerce has an online Internet banking service, Commerceonline.com. (Id. ¶ 6.) In 2001, over 30% of Commerce's households utilized Commerce Online. (Id. & Ex. A.) Over 165,000 customers used Commerce Online banking services in 2001. (Id.)

The AMERICA'S MOST CONVENIENT BANK mark was registered on the Supplemental Register in the United States Patent and Trademark Office on June 19, 2001. (Certificate of Registration, Amended Compl. Ex. A.) Plaintiff alleges that the company and its subsidiaries have been continuously, extensively and exclusively using the AMERICA'S MOST CONVENIENT BANK mark to promote its financial services since February 1996, in connection with the above services. (Id. ¶ 9.) Commerce also alleges that it is the owner of all right, title and interest to the mark and to the federal service mark registrations. *fn1 (Id. ¶ 10; Certificate of Registration, Amended Compl. Ex. A.)

Defendant BankAtlantic is also a provider of banking and related financial services. (Amended Compl. ¶ 22.) BankAtlantic currently has 72 branches, all of which are located within eight counties of Florida: Miami-Dade, Broward, Palm Beach, Martin, Indian River, St. Lucie, Hillsborough, and Pinellas. (Jarett Levan Decl. ¶ 2.) BankAtlantic maintains and operates approximately 140 ATMs in the state of Florida, the majority being in the eight counties referred to above, while a small number are in remote locations, including military bases, shopping centers, and baseball stadiums. (Id. ¶ 3.) In 2002, defendant derived over $1.1 billion of its total accounts, more than 20% of its revenues, from customers who reside outside Florida. (Chart, Miller Decl. Ex. 11.) As of December 31, 2002, 95% of defendant's customers were residing in Florida, although defendant had deposit accounts valued at more than $80 million from customers having addresses in New Jersey, New York, Pennsylvania, and Delaware. *fn2 (Id.; Chart, Miller Decl. Ex. 11.)

Defendant launched a new advertising campaign using the service mark FLORIDA'S MOST CONVENIENT BANK as a promotional vehicle for its banking operations in Florida, on approximately April 1, 2002. (J. Levan Decl. ¶ 4.) Prior to that date, on February 12, 2002, plaintiff's counsel sent a letter to defendant notifying it of plaintiff's pre-existing rights in the AMERICA'S MOST CONVENIENT BANK mark and demanding that it cease and desist the use of its FLORIDA'S MOST CONVENIENT BANK mark immediately. (Amended Compl. ¶ 24; Wiseman Letter, 2/12/02, Amended Compl. Ex. J.) Defendant responded to plaintiff in its letters dated February 21 and April 5, 2002, stating that it would not comply with plaintiff's demands. (Amended Compl. ¶ 25.)

Plaintiff Commerce filed this civil action on October 2, 2002, alleging that defendant BankAtlantic's use of the phrase FLORIDA'S MOST CONVENIENT BANK infringes upon Commerce's mark AMERICA'S MOST CONVENIENT BANK. (Compl.) Plaintiff's Amended Complaint also alleges claims related to its WOW! family of marks. (Amended Compl.) Plaintiff alleges that defendant launched an advertising campaign that prominently featured the FLORIDA'S MOST CONVENIENT BANK mark on April 1, 2002, and subsequently began using the mark in commerce in connection with its goods and services. (Id. ¶ 26.) Plaintiff also contends that defendant copied plaintiff's general methods of business, including offering services such as "Seven Day Branch Banking," "Totally Free Checking," and extended banking hours. (Id. ¶ 27.) Plaintiff asserts that defendant's use of FLORIDA'S MOST CONVENIENT MARK is part of an intentional scheme to confuse consumers by implying that defendant's services were affiliated with or sponsored or authorized by Commerce, that it violates plaintiff's rights in the mark, and that it is likely to cause confusion or mistake as to the source or association of the goods and services being offered. (Id. ¶¶ 28-30.) As for the WOW! mark, plaintiff similarly alleges that defendant copied Commerce's WOW! mark and adopted a colorable imitation thereof as its service mark. (Id. ¶ 32 & Ex. L.)

Plaintiff in its Amended Complaint brings four counts regarding defendant's use of the AMERICA'S MOST CONVENIENT BANK mark and WOW! family of marks: infringement of a federally registered service mark under the Lanham Act, 15 U.S.C. § 1114 (Count I); false designation of origin, false description and false representation in violation of the Lanham Act, 15 U.S.C. § 1125(a) (Count II); infringement of a common law mark under the Lanham Act, 15 U.S.C. § 1125(a) (Count III); and common law unfair competition (Count IV). (Amended Compl. ¶¶ 42-70.)

On November 7, 2002, Commerce filed a motion for preliminary injunction, which has since been withdrawn, as consented to by plaintiff. (Motion, 11/7/02; Order, 1/24/03.) On November 18, 2002, defendant filed its Answer. (Answer, 11/18/02.)

Defendant BankAtlantic moved for summary judgment on January 8, 2003, arguing that the geographic distance between the regions using the two marks precludes the finding of any acquired secondary meaning of the AMERICA'S MOST CONVENIENT BANK mark in Florida. Defendant further argues that there can be no likelihood of confusion because there is no territory in which the consuming public is exposed to both Commerce's use of the AMERICA'S MOST CONVENIENT BANK mark and BankAtlantic's use of the FLORIDA'S MOST CONVENIENT BANK slogan. Plaintiff cross-moved to continue or dismiss defendant's summary judgment motion.

After a telephone conference with this Court on January 24, 2003, Commerce withdrew its preliminary injunction motion. On that date, the Court set a briefing schedule regarding supplemental submissions for defendant's summary judgment motion, allowed discovery to extend to the WOW! mark, and granted plaintiff's motion for continuance. *fn3 (Scheduling Order, 1/24/03.) Meanwhile, as mentioned above, plaintiff on January 28, 2003, moved for leave to amend its Complaint to add allegations regarding its WOW! family of marks, which this Court granted on May 19, 2003. (Order, 5/19/03.) Defendant also moved for leave to file an Amended Answer to raise an additional defense, and that motion was granted by Magistrate Judge Rosen, also on May 19, 2003. (J. Rosen Order, 5/19/03.) Plaintiff Commerce filed its Amended Complaint on May 22, 2003. (Amended Compl.)

This Court heard oral argument on defendant's summary judgment motion on May 30, 2003.

II. DISCUSSION

Defendant BankAtlantic in its summary judgment motion argues that there is no actionable infringement even if the parties operated in the same territory on grounds that, inter alia, the mark is not susceptible of achieving trademark significance, there is no direct evidence of secondary meaning, and actual confusion between the two marks is absent. *fn4 Additionally, defendant argues that the geographic distance between the two regions using the marks precludes secondary meaning, and that Florida was and is not in Commerce's "zone of natural expansion." Lastly, defendant argues that Commerce cannot establish a likelihood of confusion among its consumers, and that Commerce cannot obtain relief until and unless its entry into the Florida market is imminent, notwithstanding the "Tea Rose-Rectanus" doctrine.

A. Trademark Infringement Claim

Defendant raises a number of arguments with respect to plaintiff's trademark infringement claims. It asserts that there is no direct evidence of secondary meaning of the mark, which is only registered on the Supplemental Register, relying on Commerce Nat'l Ins. Servs., Inc. v. Commerce Ins. Agency, Inc., 214 F.3d 432, 440-41 (3d Cir. 2000), and J & J Snack Foods Corp. v. Earthgrains Co., 220 F. Supp. 2d 358, 380 (D.N.J. 2002). A plaintiff with a federal trademark infringement claim under 15 U.S.C. § 1114 or a federal unfair competition claim under 15 U.S.C. § 1125(a) must prove that (1) its mark is valid and legally protectable; (2) it owns the mark; and (3) the defendant's use of the mark to identify its goods or services is likely to create confusion concerning the origin of those goods or services. J & J Snack Foods, 220 F. Supp. 2d at 374 (citations omitted); see also A & H Sportswear, Inc. v. Victoria's Secret Stores, Inc., 237 F.3d 198, 210 (3d Cir. 2000) (noting that the standards for proving either Lanham Act violation are identical) (citations omitted). The same standards apply to claims brought under 15 U.S.C. § 1125 for unfair competition, as well as to claims for infringement and unfair competition under New Jersey common law. Deborah Heart & Lung Ctr. v. Children of the World Fdtn., Ltd., 99 F. Supp. 2d 481, 488 (D.N.J. 2000) (citing Barre-Nat'l, Inc. v. Barr Labb, Inc., 773 F. Supp. 735, 746 (D.N.J. 1991)). The plaintiff bears the burden of proof. See A & H Sportswear, 237 F.3d at 210-11 (citing American Home Prods. Corp. v. Barr Labs, Inc., 834 F.2d 368, 371 (3d Cir. 1987)). Here, where there is no dispute that plaintiff owns the mark, the issues before the Court are whether plaintiff can establish the validity of the mark and whether there is a likelihood of confusion between the marks.

1. Validity of the Mark

In this case, it is undisputed that plaintiff owns a supplemental registration of the AMERICA'S MOST CONVENIENT BANK mark that was registered on June 19, 2001. See Certificate of Registration, Amended Compl. Ex. A. While registration of a mark on the Principal Register constitutes

prima facie evidence of the validity of the registered mark and of the registration of the mark, of the registrant's ownership of the mark, and of the registrant's exclusive right to use the mark in commerce on or in connection with the goods or services specified in the certificate [of registration]

15 U.S.C. § 1057(b), registration of a mark on the Supplemental Register, as in this case, does not entitle a mark to this statutory presumption, as the applicable statute provides:

[A]pplications for and registrations on the supplemental register shall not be subject to or receive the advantages of sections 1051(b), 1052(e), 1052(f), 1057(b), 1057(c), 1062(a), 1063 to 1068, inclusive, 1072, 1115 and 1124 of this title.

15 U.S.C. § 1094; see also Novartis Consumer Health, Inc. v. McNeil-PPC, Inc., No. CIV. 99-280 (WHW), 1999 WL 707721, at *4 (D.N.J. Sept. 13, 1999). Unlike Principal Registration, "`Supplemental Registration creates no substantive rights.'" Novartis, 1999 WL 707721, at *4 (quoting 3 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 19:37 at 19-75 (4th ed. 1998)). A mark may nonetheless be valid and legally protectable, notwithstanding its exclusion from the Principal Register, "if the public recognizes it as identifying the claimant's `goods or services and distinguishing them from those of others.'" A.J. Canfield Co. v. Honickman, 808 F.2d 291, 296 (3d Cir. 1986) (quoting 1 J. McCarthy, Trademarks and Unfair Competition § 15.1 at 657 (2d ed. 1984)) (describing protection that may extend to marks not on the principal register). The validity of a mark that has not been registered on the Principal Register, or is registered but has not achieved incontestibility, *fn5 depends on proof of secondary meaning, unless the registered mark is inherently distinctive. Fisons Horticulture, Inc. v. Vigoro Indus., Inc., 30 F.3d 466, 472 (3d Cir. 1994) (citing Ford Motor Co. v. Summit Motor Prods., 930 F.2d 277, 291 (3d Cir.) (internal citation omitted), cert. denied, 502 U.S. 939 (1991)); see also Commerce, 214 F.3d at 438 (quoting Ford Motor, 930 F.2d at 292). The distinctiveness and protectability of a mark is determined by considering the classification of the mark, which may fall into four categories: (1) generic; (2) descriptive; (3) suggestive; and (4) arbitrary or fanciful. J & J Snack Foods, 220 F. Supp. 2d at 375 (citing A & H Sportswear, 237 F.3d at 221-22).

Defendant BankAtlantic first asserts that a mark of such laudatory nature as AMERICA'S MOST CONVENIENT BANK cannot be given trademark protection under public policy, even with a showing of secondary meaning. Defendant relies on In re Boston Beer Co., 47 U.S.P.Q.2d 1914 (T.T.A.B. 1998), aff'd, 198 F.3d 1370 (Fed. Cir. 1999), in which an attempt was made to register BEST BEER IN AMERICA for beer and ale under § 2(f) of the Trademark Act. The Board refused to register the mark, stating that slogans are mere "puffery" and that "[s]uch claims of superiority should be freely available to all competitors in any given field to refer to their products or services, subject to whatever limits the law may impose on truthful advertising and unfair competition." 47 U.S.P.Q.2d at 1920-21. The Federal Circuit subsequently affirmed the Board's refusal to register, stating that the phrase "is so highly laudatory and descriptive of the qualities of the product that the slogan does not and could not function as a trademark to distinguish Boston Beer's goods and serve as an indication of origin." 198 F.3d at 1373-74.

Boston Beer is persuasive in this case because Commerce's mark AMERICA'S MOST CONVENIENT BANK, registered only on the Supplemental Register, see Certificate of Registration, Amended Compl. Ex. A, also resonates in "puffery" and claims of superiority. Like the mark THE BEST BEER IN AMERICA in Boston Beer, plaintiff's mark in this case is a common, laudatory phrase that is merely descriptive of the services provided at its bank. As such, it is therefore likely incapable of achieving distinctiveness as a trademark which distinguishes its services from those of others and which indicates its origin. Defendant's argument that no actionable infringement would occur even if the parties operated in the same territory is therefore convincing.

The Court nevertheless considers plaintiff's argument that the validity of the mark AMERICA'S MOST CONVENIENT BANK is established through secondary meaning. "Secondary meaning exists when the mark `is interpreted by the consuming public to be not only an identification of the product or services, but also a representation of the origin of those products or services.'" Commerce, 214 F.3d at 438 (quoting Scott Paper Co. v. Scott's Liquid Gold, Inc., 589 F.2d 1225, 1231 (3d Cir. 1978)). As discussed by the Third Circuit, a non-exclusive list of factors which may be considered in the analysis for secondary meaning includes (1) the extent of sales and advertising leading to buyer association; (2) length of use; (3) exclusivity of use; (4) the fact of copying; (5) customer surveys; (6) customer testimony; (7) the use of the mark in trade journals; (8) the size of the company; (9) the number of sales; (10) the number of customers; and (11) actual confusion. Commerce 214 F.3d at 438 (citing Ford Motor Co., 930 F.2d at 292).

Importantly, as stated by the Third Circuit, "[a] plaintiff must establish secondary meaning in a mark at the time and place that the defendant began use of the mark." Commerce, 214 F.3d at 438 (citing Scott Paper, 589 F.2d at 1231; J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 15:4 (4th ed. 1997)) (emphasis added). "Priority depends not upon which mark succeeds in first obtaining secondary meaning but upon whether the plaintiff can prove by a preponderance of the evidence that his mark possessed secondary meaning at the time the defendant commenced use of his mark." Scott Paper Co., 589 F.2d at 1231.

Before considering whether secondary meaning has been acquired in the time and place defendant commenced its mark, *fn6 plaintiff urges the Court to first determine that it is sufficient for plaintiff to show secondary meaning of the mark in the four-state region due to the "sheer magnitude of BankAtlantic's business beyond Florida." Pl.'s Suppl. Br. at 13. This argument is unavailing. Although the issue here is whether secondary meaning was acquired by plaintiff at the time BankAtlantic commenced use of its mark on April 1, 2002, the bulk of the evidence raised by plaintiff relates to the financial success of BankAtlantic during and through the year 2002, and afterwards in 2003. For example, plaintiff claims that as of December 1, 2002, BankAtlantic derived over $1.1 billion of its total account balance from customers residing outside of Florida, Chart, Miller Decl. Ex. 11, with deposit accounts from customers in the four-state region valued at more than $80 million, broken down as follows: New Jersey, $34.4 million; New York, $35.7 million; Pennsylvania, $11.1 million; and Delaware, $329,189. *fn7 Plaintiff additionally provides that defendant's mark can be found on cruise ships, United States military installations and Indian reservations, citing to a chart of 2003 ATM locations, see 2003 ATM Locations Chart, Miller Decl. Ex. 12.

Yet this evidence does not indicate that defendant's use of its FLORIDA'S MOST CONVENIENT BANK mark is associated with any advertising efforts made in Commerce's four-state region. There is no evidence propounded by plaintiff that defendant directed advertising of its mark at, or actively sought customers or conducted business with its mark in, the states of New York, New Jersey, Pennsylvania, or Delaware. The volume of customers BankAtlantic had acquired in these mid-Atlantic states by April 1, 2002, cannot be a reflection of customers gained through the use of its mark, which had not commenced use at that time. Plaintiff's theory that the territory at issue must be held to extend to the four state region based on the existence of defendant's business (prior to commencing use of its mark) is contrary to the exact situation requiring a secondary meaning analysis. In other words, a secondary meaning analysis appropriately determines whether a junior user's use infringes on the use of a mark by a senior user. To base such a determination on the existence of a defendant's business, rather than use of a mark, lacks reason. Plaintiff's argument therefore fails, *fn8 and the Court now examines whether plaintiff had acquired secondary meaning in defendant's territorial area of Florida.

a. Extent of Sales and Advertising and Length of Use

Plaintiff argues that it has promoted the mark since it was first adopted in 1996, prominently featuring the signature brand in most, if not all, advertisements and promotions in TV, radio, billboard, and newspaper advertising media. DiFlorio Aff. in Support of Prelim. Inj., ¶¶ 7-20; Advertising and Promotion Summary, Siano Aff. Ex. A. Plaintiff has also used the mark in connection with its internet promotional efforts for Commerceonline.com. DiFlorio Aff., ¶ 21.

Commerce expended approximately $14.8 million in advertising and promotional activity in connection with the mark from 1997 through 2001, spending approximately $4.7 million in 2001 alone. See DiFlorio Aff. ¶ 15; Commerce 2001 Annual Report, DiFlorio Aff. Ex. A. Charts created by Commerce's media consultants indicate that almost 2.5 billion gross impressions of plaintiff's advertising have been exposed to the public. See Advertising and Promotion Summary, Siano Aff. Ex. A. In addition, from 2000 to 2002, Commerce's total expenditure for Yellow Pages advertisements featuring the mark was $855,242, while total distribution of the yellow pages was 34,389,742. See DiFlorio Aff. ¶ 17. In addition, the mark has been used on "point of sale" materials including brochures, key fobs, and envelopes, and is prominently featured on all Commerce-issued checks, which numbered 35 million in 2001. Id. ¶¶ 18-19.

With respect to Florida advertisements, Commerce has run ads in The New York Times, claiming that it has achieved 99,912 gross impressions in Florida in 2001, and almost 650,000 gross impressions in Florida in 2002, see DiFlorio Suppl. Aff. ¶ 10. Mr. Siano's affidavit provides that "gross impressions" are defined as the sum of all exposures to an advertisement by either people or homes, Siano Aff. ¶ 5.

As defendant contends, if the total number of "impressions" for the mark came to 2,486,000,000, and the "Florida impressions" of the mark is 749,340, then the percentage of impressions comes out to about three hundredths of one percent of the total number of impressions (0.03 percent). This necessarily means that a very small percentage of the advertisements actually reach consumers in Florida, compared to the entirety of advertisements they purchase. Moreover, Commerce's advertising in The New York Times did not target Florida, but instead it reached Florida through the mechanism of that newspaper's national distribution.

The cumulation of the above expenditures related to advertising and sales using the mark at issue demonstrates that plaintiff has made extensive efforts for over six years to market and advertise its product with the associated mark under the first two factors listed above. However, while Commerce has made substantial efforts to advertise in the mid-Atlantic region, its advertising efforts reach a small percentage of customers in Florida. There is no directed advertising effort made to customers located in Florida, nor is there any plan to advertise to states other than New York, New Jersey, Delaware, and Pennsylvania, and perhaps Connecticut and other states located north of the mid-Atlantic region in the future. Even though plaintiff conducts advertising through the internet, it has plainly indicated that it directs its advertising to the mid-Atlantic region. This does not support plaintiff's position that a secondary meaning of AMERICA'S MOST CONVENIENT MARK exists in Florida.

b. Copying of Mark

Plaintiff argues that BankAtlantic intentionally copied Commerce's mark in a way that copies the manner in which the mark is used by Commerce. Comparing a print advertisement of Commerce for "Seven-Day Branch Banking," DiFlorio Aff. Ex. B, with defendant's print advertisement for "7 Day Branch Banking," id. Ex. H, indicates a similarly styled advertisement, in which the heading substantially covers almost one-half of the page, with the banks' names at the bottom of the page. While "Bank" is immediately under the latter half of the word "Commerce," "Bank" is slightly above but next to "Atlantic" in the other advertisement. The AMERICA'S MOST CONVENIENT BANK mark is not prominently displayed in Commerce's advertisement but rather is in very small font, while the FLORIDA'S MOST CONVENIENT BANK mark is very prominently displayed in font size similar to the BankAtlantic name.

While it appears that defendant's banking hours are similar to those of plaintiff, see id. Ex. B, at 1-5; id. Ex. H, at 1-4, they are not identical in all respects. In addition, while these services may to some extent seem similar, plaintiff concedes it does not claim exclusive rights to provision of services, such as "seven-day banking" or "totally free checking." Furthermore, BankAtlantic recruited former Commerce employees to work on FLORIDA'S MOST CONVENIENT BANK and WOW! initiatives, see DiFlorio Suppl. Aff. ¶¶ 2-6; Levan Depo. at 25-26, Miller Decl. Ex. 3.

From the above advertisements and actions by BankAtlantic to recruit Commerce's former employees, a reasonable fact finder could infer that defendant intended to copy the type of services provided by plaintiff, and that it copied the use of a portion of plaintiff's mark in defendant's Florida advertising.

c. Customer Surveys and Testimony

Defendant states in its supplemental brief that Commerce has failed to submit any consumer surveys, which it indicated it would provide in its reply brief in support of its preliminary injunction motion, see Pl.'s Reply Br., 12/4/02, at 15. Because the deadline for serving affirmative expert reports was May 16, 2003, it can be assumed that no expert report regarding consumer surveys is forthcoming. Thus, there are no customer surveys or testimony regarding the secondary meaning of the AMERICA'S MOST CONVENIENT BANK mark, and this does not support a finding that the mark has acquired a secondary meaning in Florida.

d. Use of Mark in Trade Journals

Plaintiff submits that independent media has provided news coverage referencing the mark, including articles in U.S. Banker, The Wall Street Journal, The Philadelphia Inquirer, Microbanker Online. See DiFlorio Aff. Ex. G. These articles refer to the fact that plaintiff "even bills itself as `America's Most Convenient Bank,'" that Commerce's founder Vernon Hill "billed Commerce as `America's Most Convenient Bank,' in an effort to steal dissatisfied customers from rivals," that Commerce "relentlessly instills in staffers [its] `customer-focused culture' as `America's most convenient bank,'" and that Commerce "takes its motto as `America's Most Convenient Bank' seriously." Id.

These references to plaintiff and its accompanying slogan in articles published in print and online news media support plaintiff's position that the public associates the AMERICA'S MOST CONVENIENT BANK slogan with its banking services. However, the fact that the newspapers are prevalent in the mid-Atlantic region more so than in Florida, and that several are specialized trade publications not read by ...


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