Bank of America (BAC.N) successfully convinced a U.S. appeals court that its “Erica” virtual assistant does not infringe on the rights of a website creator who owned an earlier “Erica” trademark.
The 10th U.S. Circuit Court of Appeals in Denver, in a decision on Thursday, upheld a federal district court ruling in favor of BofA, stating that Erik Underwood failed to demonstrate actual use of his trademark in commerce.
Underwood developed a business plan for a virtual assistant named E.R.I.C.A. in 2009 and obtained a Georgia trademark for the name in 2010.
He later launched a search engine, my24erica.com, allowing users to search for information about films and actors.
BofA secured a federal “Erica” trademark in 2018 for “voice-controlled information and personal assistant devices” for banking.
The bank reported earlier this month that its Erica has been utilized over 2 billion times since its launch in 2018.
Underwood filed a lawsuit against BofA in Colorado federal court in the same year. U.S. District Judge Raymond Moore ruled in favor of BofA in 2019.
After the 10th Circuit remanded the case in 2021 for the district court to reassess Underwood’s protectable interest in his trademark prior to BofA’s use of the “Erica” name, Moore again ruled in favor of the bank in 2022, a decision upheld by the 10th Circuit on Thursday.
U.S. Circuit Judge Nancy Moritz, writing for a three-judge panel, stated that Underwood “presented no evidence that the E.R.I.C.A. mark, as used on the website, clearly distinguishes the source of the services offered by www.my24erica.com” and that his trademark was not protectable.
