Erik M. Underwood, et al. v. Bank of America Corporation

In determining whether a person has established ownership rights in a trademark or service mark in connection with services provided on a website, the Tenth Circuit has held that the person must show, among other things, that the use of the mark clearly identified and distinguished the services offered on the website. The questions presented are:

1. Whether courts, in determining if use of a trademark is associated with an online service, are required to consider all of the evidence in context as a whole instead of considering each piece of evidence in isolation.

2. Whether a court must consider evidence of how a website’s mark is associated with the website’s service in search engine results when the trademark owner intentionally codes its site to create the association in a consumer’s search engine results.