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AN ACT
RELATING TO THE SOLICITATION OF SERVICES OR PRODUCTS;
PROHIBITING SOLICITORS FROM USING CERTAIN LOAN INFORMATION OR
A TRADE NAME OR TRADEMARK OF A LENDER OR A TRADE NAME OR
TRADEMARK CONFUSINGLY SIMILAR TO THAT OF A LENDER; PROVIDING
A CAUSE OF ACTION.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. SOLICITATIONS USING LOAN INFORMATION--
RESTRICTION--CAUSE OF ACTION.--
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
offering services or products without the consent of the
lender, unless the solicitation clearly and conspicuously
states 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:
(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; and
(4) that the loan information referenced was
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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 offering services or
products, unless the information is included in a
communication from a lender or an affiliate of a lender to a
current customer of the lender or a person who was a customer
of the lender during the eighteen months immediately
preceding the solicitation.
C. Except as provided in Subsection D of this
section, a person shall not reference a loan number, loan
amount or other specific loan information that is publicly
available in a solicitation offering services or products,
unless the solicitation clearly and conspicuously states the
following in close proximity to and in the same or larger
point type as the first and the most prominent use of the
loan number, loan amount or other specific loan information:
(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; and
(4) that the loan information referenced was
not provided by the lender.
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D. Subsection C of this section does not apply to
a communication by a lender or an affiliate of a lender 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 communication.
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:
(1) the lender's sponsorship, affiliation,
connection or association with the person using the name; or
(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 outstanding loan, including
the name of the lender, the loan number, the loan amount or
other specific information about the loan 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 lender.
G. The prohibitions of this section do not apply
to the use by a person of the trade name of another lender in
an advertisement for services or products that compares the
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services or products offered by the other lender.
H. A lender or owner of a trade name or trademark
may seek an injunction in a state district court against a
person who violates this section to stop the unlawful use of
the trade name, trademark or loan information. In such an
action:
(1) the person seeking the injunction shall
not have to prove actual damage as a result of the violation;
and
(2) irreparable harm and interim harm to the
lender or owner shall be presumed.
I. A lender or owner seeking an injunction under
Subsection H of this section may, in the same action, seek to
recover actual damages and any profits the defendant has
accrued as a result of a violation of this section. The
prevailing party in an action brought pursuant to this
section may recover costs associated with the action and
reasonable attorney fees from the other party.
J. As used in this section:
(1) "affiliate" means a business entity
that, directly or indirectly through one or more
intermediaries controls, is controlled by or is under common
control with another business entity; and
(2) "lender" means an insured state or
national bank, a state or federal savings and loan
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association or savings bank, a state or federal credit union,
a mortgage loan company, an escrow company or any other
person who makes loans in this state or a holder of a loan
and any affiliate, or any third party operating with the
consent of the lender.