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David And Goliath Duke It Out In Mobile Banking Trademark Dispute

Publication Date: 
April 21, 2011
Source: 
American Banker
Author: 
Andrew Johnson

Professor Mark Lemley is quoted in American Banker describing nominative fair use in the context of JPMorgan Chase's trademark infringement claim against third-party developers releasing applications on the Android Market.

Nimble third-party developers provide consumers services that mainstream banks have ignored, but being in the software vanguard also has its pitfalls. Ask Jeff Peiffer.

In February 2010, Peiffer, a mobile banking entrepreneur, released an application for Google Inc.'s Android mobile operating system that let smartphone users check balances at banks that were lacking their own Android apps, including JPMorgan Chase & Co.

The New York bank, which did not release its own Android app until November, was mum on Peiffer's app at the time. Behind closed doors, though, Peiffer apparently ruffled the bank's feathers, and last month JPMorgan Chase filed a trademark infringement claim with Google, requesting that it remove Peiffer's "Android Banking" app from the Android Market.

...

"You are generally free to use a trademarked term to accurately refer to the trademark owner," Mark Lemley, the William H. Neukom Professor at Stanford Law School and director of the Stanford Program in Law, Science and Technology, wrote in an email.

"If that is all the Android Banking app does — accurately relate that you can connect to your Chase account using it — I don't think the app maker has done anything wrong," Lemley said.