CHAPTER 121
SB 315 – FINAL VERSION
01/23/08 0076s
05/08/08 1646eba
2008 SESSION
08/04
SENATE BILL 315
AN ACT preventing the fraudulent use of the names of financial institutions.
SPONSORS: Sen. DeVries, Dist 18; Sen. Clegg, Dist 14; Rep. Hunt, Ches 7; Rep. DeStefano, Merr 13
COMMITTEE: Commerce, Labor and Consumer Protection
This bill:
I. Allows the bank commissioner to serve a cease and desist order to certain violators.
II. Gives the bank commissioner authority to enforce cease and desist orders.
III. Prohibits the unauthorized use of the name of a financial institution.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
01/23/08 0076s
05/08/08 1646eba
08-2656
08/04
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Eight
AN ACT preventing the fraudulent use of the names of financial institutions.
Be it Enacted by the Senate and House of Representatives in General Court convened:
121:1 Cease and Desist Order. Amend RSA 384:12-a, IV to read as follows:
IV. If, in the opinion of the commissioner, an individual or business entity is engaging in or has engaged in [the unauthorized and deceptive use of the name or trademark of any bank, as defined in RSA 384-B:1, I, national bank, federally chartered savings bank or association, federally or state chartered credit union, any mortgage lender as defined in RSA 397-A and 397-B, or any affiliate or subsidiary thereof,] any act or conduct in violation of RSA 384:67, the commissioner may issue and serve an order upon the individual or business entity requiring the individual or business entity to cease and desist from such [unauthorized and deceptive use] act or conduct.
121:2 New Paragraph; Cease and Desist Order. Amend RSA 384:12-a by inserting after paragraph IV the following new paragraph:
V. Any individual or business entity who knowingly violates any order of the commissioner made pursuant to paragraph IV of this section may, upon notice and opportunity for hearing, be subject to suspension or revocation of any registration or license, or imposition of an administrative fine not to exceed $2,500 for each violation, or both. Each of the acts or conduct specified shall constitute a separate violation.
121:3 Unauthorized and Deceptive Use of the Name of a Financial Institution. RSA 384:67 is repealed and reenacted to read as follows:
384:67 Unauthorized and Deceptive Use.
I. No individual or business entity shall, without the prior written authorization of a financial institution:
(a) Use the full or abbreviated name, trade name, service mark, or trademark of any financial institution in any written, electronic, or oral advertisement or solicitation for products and services;
(b) Make reference to a loan number or other specific loan information on the outside of an envelope, visible through an envelope window, on a postcard, or in electronic communication in connection with any written or electronic solicitation; or
(c) Include a loan number or other specific loan information, other than a loan amount, relative to a specifically identified consumer that is publicly available: (1) in any written or electronic solicitation, unless the advertisement or solicitation clearly and conspicuously states on the front page or introduction in bold-faced type that is the same font size as is predominantly used in the advertisement or solicitation disclosing that such individual or business entity is not sponsored by or affiliated with, and that such solicitation is not authorized by, the financial institution and that the information was retrieved from public records; or (2) in an oral solicitation unless the same disclosure is made at the beginning of the solicitation.
II. The individual or business entity shall furnish a copy of such written authorization on request by the commissioner.
III. The use of a financial institution’s full or abbreviated name, trade name, service mark, or trademark in a comparative written advertisement or solicitation by another individual or business entity, which is limited solely to comparing the relative attributes of similar products or services offered by such financial institution and the individual or business entity, shall be permitted under this section and shall not require prior written authorization of the financial institution, provided that the full or abbreviated name, trade name, trademark, or service mark of the financial institution is not visible to the addressee:
(a) In the case of a letter or other form of written communication, before opening the document containing the comparison or the envelope in which it is sent or delivered;
(b) In the case of a postcard, on its face; or
(c) In the case of an electronic transmission, within its subject line.
IV. For purposes hereof, the term “financial institution” shall mean a bank, as defined in RSA 384-B:1, I, a national bank, a federally chartered savings bank or association, a federally or state-chartered credit union, a mortgage lender as defined in RSA 397-A and 397-B, or an affiliate or subsidiary thereof having a business location in the state of New Hampshire.
121:4 Unauthorized and Deceptive Use of the Name of a Financial Institution; Cease and Desist Order. Amend RSA 384:68 to read as follows:
384:68 [Cease and Desist Order] Enforcement. The bank commissioner may issue a cease and desist order, as provided in RSA 384:12-a, IV, against any individual or business entity which [uses in an unauthorized and deceptive manner the name or trademark of any bank, as defined in RSA 384-B:1, I, national bank, federally chartered savings bank or association, federally or state chartered credit union, any mortgage lender as defined in RSA 397-A and 397-B, or any affiliate or subsidiary thereof, in violation of RSA 384:67] engages in any act or conduct in violation of RSA 384:67 involving a financial institution under the jurisdiction of the bank commissioner and may bring legal action to enforce the order. The insurance commissioner may issue a cease and desist order, as provided in RSA 400-A:14, against any individual or business entity which [uses in an unauthorized and deceptive manner the name or trademark of any] engages in any act or conduct in violation of RSA 384:67 involving a financial institution [subject to] under the jurisdiction of the insurance commissioner [in violation of RSA 384:67] and may bring legal action to enforce the order.
121:5 New Section; Jurisdiction. Amend RSA 384 by inserting after section 68 the following new section:
384:69 Jurisdiction. Any individual or business entity that engages in any act or conduct in violation of RSA 384:67 shall be subject to the jurisdiction of the state of New Hampshire. Nothing in RSA 384:67, RSA 384:68, or this section shall limit the authority of the New Hampshire secretary of state to enforce the laws under his or her jurisdiction relating to trade names, trademarks, or service marks.
121:6 Effective Date. This act shall take effect upon its passage.
Approved: June 3, 2008
Effective Date: June 3, 2008