In his Supreme Court petition, Underwood argued that the Tenth Circuit improperly assessed the evidence by examining statements on his website in isolation rather than considering the website as a whole, as a consumer would. He further asserted that the court ignored search engine metadata that presented his site as a virtual assistant service.
The Supreme Court’s refusal to hear the case effectively upholds the Tenth Circuit’s ruling, leaving Underwood without recourse for his trademark claim against Bank of America’s Erica assistant.
Responses from Counsel and Bank of America
Aaron Bradford, Underwood’s attorney from Sheridan Ross PC, expressed disappointment at the Supreme Court’s decision, saying the case provided a valuable opportunity to address evolving trademark issues in the digital age. Bank of America, which did not respond to Underwood’s petition, declined to comment on the outcome.
Underwood was represented by Aaron Bradford and Brian Boerman of Sheridan Ross PC, while Bank of America was represented in the Tenth Circuit by David H. Bernstein and Jared I. Kagan of Debevoise & Plimpton LLP.
