Successful and Enforceable Brands Connect with the Consumer: Lessons from a Recent 10th Circuit Decision

Successful and Enforceable Brands Connect with the Consumer: Lessons from the Underwood v. Bank of America Case

Denver, August 25, 2025 – A recent decision by the United States Court of Appeals for the Tenth Circuit in Underwood v. Bank of America Corp. (August 2025) underscores a critical principle for businesses: successful and enforceable brands must forge a strong, direct connection with consumers. This landmark trademark case offers valuable lessons for companies in India and globally, particularly in the context of rapid digital transformation and evolving consumer behavior.

Case Overview

The Underwood case centered on plaintiff Underwood’s attempt to enforce trademark rights for the term “ERICA” against Bank of America’s use of the same name for its virtual financial assistant, launched in 2018. Underwood claimed prior use of “ERICA” on a website offering search engine technology services. However, the Tenth Circuit ruled against Underwood, finding that his use of the mark did not establish a sufficient connection with the services offered to warrant trademark protection.

The court noted that Underwood’s website references to “ERICA” were vague, with some suggesting it was an aspirational service still in development, while others implied it referred to a person. This lack of clarity failed to create a “direct association” between the mark and the services in the minds of consumers, a key requirement for trademark enforceability.

Key Lessons for Indian Businesses

The Underwood ruling highlights several critical takeaways for companies aiming to build and protect strong brands in India’s competitive market:

1. Establish a Clear Mark-Service Connection:

• The Tenth Circuit emphasized that trademark rights arise from a strong link between a mark and the product or service it represents. For Indian businesses, especially startups and SMEs, this means ensuring that logos, names, or symbols are consistently associated with their offerings in marketing, packaging, and digital platforms.
• Actionable Tip: Use clear branding in advertising, product labeling, and online content to reinforce the connection between your mark and your goods or services. For example, a food delivery startup should ensure its logo is prominently displayed on delivery bags, apps, and promotions to build consumer recognition.

1. Leverage Trademark Registration:

• The court’s analysis aligns with the Indian Trade Marks Act, 1999, which requires applicants to demonstrate actual use of a mark in commerce to secure registration. The registration process, overseen by the Trade Marks Registry, evaluates the strength of the mark-service connection, offering feedback that can help businesses refine their branding strategies.
• Actionable Tip: Register your trademark early with the Trade Marks Registry in Mumbai, Chennai, Delhi, Kolkata, or Ahmedabad. Provide robust evidence of use, such as advertisements, invoices, or website screenshots, to strengthen your application and avoid future disputes.

1. Adapt to Digital Consumer Behavior:

• The ruling noted the shift from traditional search engines to generative AI platforms, which often strip brands from query results. In India, where digital penetration is surging (with over 800 million internet users in 2025), brands must ensure their marks stand out in AI-driven searches and social media platforms like Instagram and YouTube.
• Actionable Tip: Invest in SEO and social media strategies that emphasize your brand’s unique identity. For instance, a fashion retailer could use consistent hashtags and influencer collaborations to reinforce brand recognition on platforms frequented by India’s Gen Z consumers.

1. Avoid Ambiguity in Branding:

• Underwood’s failure stemmed from the ambiguous presentation of “ERICA,” which confused consumers about whether it was a service or a person. Indian businesses must ensure their marks are distinct and unambiguous to avoid similar pitfalls.
• Actionable Tip: Conduct consumer perception surveys to test how your target audience interprets your brand. For example, a tech startup launching an AI chatbot should ensure the name clearly ties to the service, not a fictional character or unrelated concept.

1. Build Consumer Trust Through Consistency:

• The court’s decision reflects broader consumer trends in India, where trust is a top priority for 61% of consumers when interacting with brands (Web Ascender, 2024). Consistent branding across touchpoints—online, offline, and in-store—builds trust and strengthens trademark enforceability.
• Actionable Tip: Maintain uniformity in brand presentation across websites, apps, and physical stores. For instance, a quick-service restaurant chain like Wow! Momo should ensure its logo, colors, and messaging are consistent to foster consumer loyalty and legal protection.

Implications for Indian Businesses

India’s consumer market, projected to reach $6 trillion by 2030 (McKinsey, 2025), is highly competitive, with brands vying for attention in a digital-first landscape. The Underwood decision serves as a reminder that enforceable trademarks are not just about legal registration but about creating meaningful connections with consumers. This is particularly relevant as Indian consumers increasingly prioritize local brands (47% prefer domestic companies, per McKinsey’s 2025 State of the Consumer report) and demand transparency in pricing and branding.

The rise of AI-driven commerce and social media platforms like Instagram, where 90% of digital users engage with loyalty programs (Cap Tech, 2025), further emphasizes the need for brands to stand out. Companies that fail to link their marks to their offerings risk losing both consumer trust and legal protections, as seen in Underwood’s case.

Practical Steps for Indian Companies

• Conduct Regular Brand Audits: Review how your mark is used across platforms to ensure consistency and clarity. Engage legal experts to assess trademark strength.
• Invest in Consumer Engagement: Use loyalty programs, as 95% of Indian digital users find them influential in brand choice (Cap Tech, 2025). For example, a beauty brand could offer personalized rewards to reinforce its mark’s association with quality.
• Monitor Digital Presence: With AI search engines reshaping online visibility, use analytics to track how consumers encounter your brand. Tools like Google Analytics or Hootsuite can help.
• Seek Legal Guidance: Consult trademark attorneys to navigate India’s Trade Marks Act and ensure compliance with registration requirements. This is crucial for startups entering crowded sectors like e-commerce or FMCG.

Conclusion

The Tenth Circuit’s ruling in Underwood v. Bank of America is a wake-up call for Indian businesses: a successful brand is one that resonates with consumers and is legally enforceable through clear, consistent use. As India’s cinema, retail, and tech sectors expand, creating an estimated 240,000 jobs in cinema alone by 2025, companies must prioritize strong branding to capture market share and protect their intellectual property. By learning from Underwood’s missteps, Indian businesses can build brands that not only connect with consumers but also stand the test of legal scrutiny.

Sources: Mondaq (August 6, 2025), McKinsey State of the Consumer 2025, Web Ascender (2024), Cap Tech (2025)