Due to the subprime mortgage crisis, Lehman Brothers sought Chapter 11 bankruptcy protection in 2008 and is one of the largest failures of an investment bank. To say the name Lehman Brothers has a bad reputation may be mild (the “Bank of Evil” in the movie Despicable Me was "Formerly Lehman Brothers"). Barclays, who acquired assets of Lehman Brothers, allowed the registered trademarks to “Lehman Brothers” to lapse.
Noting the apparent abandonment and seeking to play on the “bad will” of the name, Tiger Lily sought to obtain trademark registrations for “Lehman Brothers” for beer, spirits, and bar and restaurant services. Contemporaneously, Barclays filed for an intent-to-use “Lehman Brothers” registration for financial services. Each party opposed the registrations. The Trademark Trial and Appeal Board (TTAB) found that Tiger Lily was not entitled to register the mark due to a likelihood of confusion with Barclay’s use of Lehman Brothers and also dismissed Tiger Lily opposition to Barclay’s registration.
The Federal Circuit affirmed the TTAB. It held that Barclay’s lapsed registrations did not show the mark was abandoned based on evidence that the defunct-Lehman Brothers corporation continued to use the mark as it was winding up its business and that Barclay’s had used the mark for “legacy” research materials. It also found sufficient evidence for a likelihood of confusion, rejecting the notion that trying to trade on the “bad will” associated with the Lehman Brothers mark diminished the likelihood of confusion and noting evidence of “companies that have promoted financial services through use of their trademarks in connection with alcohol, food, and beverages.”
Concerning Barclay’s registration, the Federal Circuit did not feel that Barclays’ actions in publicly distancing itself from the Lehman Brothers mark over the course of a decade demonstrated an intent not to use the mark. Noting the “the evidentiary bar is not high,” the Federal Circuit found sufficient that “Barclays currently offers, and has the capacity to continue to offer, the goods and services identified in its application for registration” and it is undisputed that “those are precisely the types of goods and services” with which the mark “has been associated in the past.”
To sum up, even though one would have to be under the influence to invest in a Lehman Brothers subprime mortgage product in 2022, the Federal Circuit allowed Barclays the right to register the Lehman Brothers mark and prevent Tiger Lily’s registration.