44-1799.51. Loan information; solicitations; restrictions; injunction; definition

A. A person shall not reference the 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 consent of the lender unless the solicitation clearly and conspicuously states all of the following in close proximity to and in the same or larger point type as the first and the most prominent use of a lender's trade name or trademark in the solicitation:

1. The name, address and telephone number of the person making the solicitation.

2. That the person making the solicitation is not affiliated with the lender.

3. That the solicitation is not authorized or sponsored by the lender.

4. That the loan information referenced was not provided by the lender.

B. A person shall not reference 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, except that this prohibition does not apply to communications by a lender or its affiliates with a current customer of the lender or with a person who was a customer of the lender during the eighteen months immediately preceding the solicitation.

C. A person shall not reference 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 communication clearly and conspicuously states all of the following in close proximity to and in the same or larger point type as the first and the most prominent use of a loan number, loan amount or other specific loan information that is publicly available in the solicitation:

1. The name, address and telephone number of the person making the solicitation.

2. That the person making the solicitation is not affiliated with the lender.

3. That the solicitation is not authorized or sponsored by the lender.

4. That the loan information referenced was not provided by the lender.

D. Subsection C does not apply to communications by a lender or its affiliates with a current customer of the lender or with a person who was a customer of the lender during the eighteen months immediately preceding the solicitation.

E. A person shall not use the name of a lender or a name similar to that of a lender in a solicitation directed to consumers if that use could cause a reasonable person to be confused, mistaken or deceived as to either of the following:

1. The lender's sponsorship, affiliation, connection or association with the person using the name.

2. The lender's approval or endorsement of the person using the name or the person's services or products.

F. Any reference to an existing lender, a loan number, loan amount or other specific loan information that appears on the outside of an envelope, that is visible through the envelope window, or that appears on a postcard in connection with any written communication that includes or contains a solicitation for goods or services is prohibited without the consent of the existing lender.

G. It is not a violation of this section 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.

H. 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 have to prove actual damage as a result of the violation. Irreparable harm and interim 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 pursuant to this section is entitled to recover costs associated with the action and reasonable attorney fees from the other party.

I. For the purposes of this section, " lender" means a bank, national bank doing business in this state, industrial bank, savings and loan association, savings bank, credit union, finance company, mortgage bank, mortgage broker, loan originator or holder of the loan or other person who makes loans in this state and any affiliate, or any third party operating with the consent of the lender.