81-29-3 - Use of lender's trade name or trademark or specific loan information by other than the lender prohibited except under certain circumstances; injunction for violation.
§ 81-29-3. Use of lender's trade name or trademark or specific loan information by other than the lender prohibited except under certain circumstances; injunction for violation.
(1) A person other than the owner of the trade name or trademark may not use a trade name or trademark of a lender or a trade name or trademark confusingly similar to that of a lender in a solicitation for the offering of services or products without the written consent of the lender, unless the solicitation clearly and conspicuously states in boldfaced type on the front page of the correspondence containing the solicitation all of the following:
(a) The name, address and telephone number of the person making the solicitation.
(b) That the person making the solicitation is not affiliated with the lender.
(c) That the solicitation is not authorized or sponsored by the lender.
(d) That the loan information referenced was not provided by the lender.
(2) A person may not use a loan number, loan amount or other specific loan information that is not publicly available in a solicitation for the purchase of services or products. However, the prohibition does not apply to the use by a lender or its affiliates in communications with a current or former customer of the lender of a loan number, loan amount or other specific loan information derived from the business relationship between the lender and the current or former customer.
(3) (a) A person other than the lender may not use a loan number, loan amount or other specific loan information that is publicly available in a solicitation for the purchase of services or products unless the solicitation clearly and conspicuously states in boldfaced type on the front page of the correspondence containing the solicitation all of the following:
(i) The name, address and telephone number of the person making the solicitation.
(ii) That the person making the solicitation is not affiliated with the lender.
(iii) That the solicitation is not authorized or sponsored by the lender.
(iv) That the loan information referenced was not provided by the lender.
(b) The prohibition in paragraph (a) does not apply to the use by a lender or its affiliates in communications with a current or former customer of the lender of a loan number, loan amount or other specific loan information derived from the business relationship between the lender and the current or former customer.
(4) Any reference to a lender without consent of the lender as required by this chapter and any reference to a loan number, loan amount or other specific loan information appearing on the outside of an envelope, visible through the envelope window, or on a postcard, in connection with any written communication that includes or contains a solicitation for services or products is prohibited.
(5) It is not a violation of this chapter for a person to use the trade name of another lender in an advertisement for services or products to compare the services or products offered by the other lender.
(6) A lender or owner of a trade name or trademark may seek an injunction against a person who violates this section to stop the unlawful use of the trade name, trademark or loan information. The person seeking the injunction shall not be required to prove actual damage as a result of the violation. Irreparable harm to the lender or owner shall be presumed. The lender or owner seeking the injunction may seek to recover actual damages and any profits the defendant has accrued as a result of the violation. The prevailing party in any action brought under this subsection is entitled to recover costs associated with the action and reasonable attorney fees from the other party.
Sources: Laws, 2008, ch. 370, § 2, eff from and after July 1, 2008.