Truly Mind Boggling

In February, regional banks BB&T and SunTrust announced they would join forces to become the sixth largest bank in the U.S. This merger is the largest since the 2008 financial crisis, with the new entity becoming the sixth largest bank in the U.S. with around $442 billion in assets, $301 billion in loans and $324 billion in deposits. 

Earlier this month, the merging banks announced that “Truist” will be the name for the new combined company. BB&T and SunTrust’s press release stated, “Building on 275 years of combined history and culture, Truist’s additional size and scale will redefine the client experience through innovative technology and create meaningful change in its communities.”

On June 17, Truliant Federal Credit Union filed a lawsuit in Federal Court alleging that the intended name of the new bank (Truist) infringes several of Truliant’s registered trademarks. Truliant has used the brand name Truliant (for which it has a federal trademark registration) and its shortened form of “Tru” since 1999.  Truliant also has been using a number of other trademarks with the prefix “Tru,” including Truliances, Tru-Financial Checkup, Tru2Go, Truism, Truceratops, TruGuidance, Truly Different, Truly Caring, Truly Refreshing, Truly Helpful, Truly Pesonal, and Truly Affordable.

Obtaining a federal trademark registration is the best way for a business to secure maximum legal protection for its brand(s). Most people don’t realize, however, that a business earns certain common law legal rights merely by using a trademark in commerce. In other words, even though Truliant has not yet obtained federal trademark registrations for some of its “Tru” marks, it still has the right to prevent others from using confusingly similar marks in the geographic territory in which it operates.

I have no inside information or intimate knowledge of this situation. I have never worked with BB&T, SunTrust, or Truliant; I don’t even bank with any of them. Everything I know about Truliant’s trademark infringement lawsuit against BB&T and SunTrust I learned from reviewing and analyzing the court filing and reading several news articles. I acknowledge the possibility that there is something going on behind the scenes that I don’t know. Nevertheless, BB&T and SunTrust’s choice of the Truist name is mind boggling.  Here’s what I mean.

At our law firm, we almost always recommend (or in some cases require) that our clients have us conduct a trademark search prior to using a mark (and certainly prior to adopting a core brand name for their business). Every competent trademark attorney I know follows the same protocol. In this case, for less than what it likely cost BB&T and SunTrust’s legal teams to read the document Truliant filed in federal court, they could have had a comprehensive trademark search done that would have alerted them to the existence of Truliant’s marks. A good trademark search should identify not only confusingly similar trademarks in the U.S. trademark database, but also trademarks that are in use but not registered.
In this case, one of three possible things must have happened, and each is more mind boggling than the last.

(1) No trademark search was done. This is implausible. Every smart business of any size conducts a trademark search prior to settling on the name of their business. It cannot be the case that the nation’s sixth largest bank would overlook such a basic task as this.
(2) The trademark search was done improperly. I find this hard to believe. Surely the nation’s sixth largest bank can afford competent trademark counsel. Any properly conducted trademark search would have identified Truliant’s family of trademarks.
(3) BB&T and SunTrust ignored the trademark search results. In my opinion, this is the most likely of the three scenarios, although I still refuse to believe this is true. Going to market with a brand name that is confusingly similar to another company’s established marks amounts to inviting a lawsuit. 

To summarize, there is no good explanation for why SunTrust and BB&T would choose a name for their new entity that is likely to infringe Truliant’s trademarks. Truist is one letter different from one of Truliant’s marks (Truism), and both banks operate in the same geographical area. This is an embarrassing costly mistake for BB&T and SunTrust, and the dollar value of this blunder exponentially exceeds what it would have cost them to avoid it by having a proper trademark search done.

If you are a business owner or a decision maker, I urge you not to make the same mistake BB&T and SunTrust made. They will survive, but many companies who fail to clear their brand properly before starting business would not. You don’t have to be the nation’s sixth largest bank to have top notch trademark counsel. It is an absolute must to have a trademark search done prior to launching any business, product, or service. Make sure your trademark search includes not only the records of the United States Patent and Trademark Office, but other databases and sources including state trademarks, company names, domain names, social media platforms, and other common law sources. Rebranding your business or defending a trademark infringement lawsuit are both incredibly costly, and in some cases can end up costing you your business. A proactive approach to trademark clearance and strategy can save you tens (and in some cases hundreds) of thousands of dollars.

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