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|The Volokh Conspiracy |

It looks as though the IP Furies, having successfully liberated "Happy Birthday to You" from the clutches of Evil Corporate Content Man (see here), will have to suit up yet again. Two real heavyweights—AT&T and Citigroup—are preparing to do battle over the word "Thanks." Aux armes, citoyens!!

Citi has filed a lawsuit in federal district court (SDNY) alleging that AT&T has infringed its "THANKYOU" trademark. From the complaint (available here— thanks to the folks at plainsite.org for making it available):

Since 2004, Citigroup has offered customer loyalty, reward and redemption programs in connection with many of its credit cards, including its credit cards that are cobranded with AT&T, under trademarks consisting of and/or containing the term THANKYOU. Citigroup's THANKYOU customer loyalty, reward, and redemption programs have been extensively advertised and promoted by Citigroup since 2004 and currently have approximately 15 million members in the United States.

Despite actual knowledge of Citigroup's substantial use of and exclusive rights in the THANKYOU Marks, Citigroup's use of the marks in connection with AT&T co-branded credit cards, and Citigroup's concerns regarding AT&T's proposed trademarks, AT&T launched a customer loyalty program under the trademarks "thanks" and "AT&T thanks" on or about June 2, 2016.

AT&T's use of the "thanks" and "AT&T thanks" trademarks is likely to cause consumer confusion and constitutes trademark infringement, false designation of origin, and unfair competition in violation of Citigroup's rights [and] Citigroup therefore seeks to enjoin AT&T's infringing conduct and to recover damages based on the injury AT&T's conduct has caused to Citigroup as well as AT&T's unjust enrichment.

It has a whiff of "post-breakup spat" about it, AT&T and Citi having been up until recently partners in (ironically enough) the loyalty biz. And, like so much current intellectual property law, it's awfully easy to parody the whole notion that Citi might think that it somehow "owns" the phrase "thank you."

But actually, this one's not quite as preposterous as it appears at first glance. Note that Citi is complaining about AT&T's "trademark use" of the words "thanks," as in "the new AT&T Thanks" customer loyalty program. That is, Citi's not saying that AT&T (or anyone else) can't use the word "thanks" anymore in other contexts (as in "Thanks for your patience; a customer service representative will be with you shortly) because it (Citi) somehow "owns" the word. Rather, it is saying that AT&T can't use the word "thanks" as a brand name for its customer loyalty program—especially when it knows full well that Citi has been using "thanks" as a brand name for its customer loyalty program for some time. And further, because Citigroup and AT&T had been "co-branding" their credit cards tied to Citi's "THANKYOU" program—"Use your new AT&T card and earn valuable THANKYOU points!"—customers now might be confused by the use of the word "Thanks" in connection with AT&T's program into thinking that the AT&T and Citi programs are connected to one another.

Enough, I think, to survive my own little mental motion to dismiss for failure to state a claim, and eagerly awaiting AT&T's response.