Crystal ball certainly sees lawyers but bankers have learned never to count Vern out.

The New Metro Bank can give it a whirl and see if anyone squeals. But if one of the other Metro Banks — specifically the one in Houston that has the federally registered trademark on “Metro Bank” on-file with the USPTO — decides to sue, New Metro Bank might find itself in a highly indefensible legal position. A federal trademark applies (as the name implies) to the entire country — not on a state-by-state or regional basis.

“Owning” a name in the marketplace isn’t the legal standard. Trademarks are established on a first-come basis. There are many stories out there about small companies (think: “bank with one branch”) that have derailed the naming plans of super-huge corporations.

This is what happened with TD/Banknorth/Commerce. The Commerce Bank in Massachusetts only has around 9 branches. That doesn’t matter. They were first to use the Commerce name in that state. That gives them the right to stop anyone else.

You can buy brand awareness, but you can’t “buy” a trademark. If someone else was using the name before you in that specific industry, you’re in a vulnerable trademark position.

The neat thing about trademark law is that it protects small guys from 800-pound gorillas. Public perception about who is the dominant player makes no difference. If the courts feel you could confuse someone with your new, similar name, then tough luck.

In all likelihood, the vast majority of banks out there picking similar-sounding names aren’t aware of how trademark laws work. They may think that another bank in another state can’t stop them, but they may be very, very wrong.

Similarly, banks watching others pick names like theirs might not be aware of their options. They may just think, “Well shoot. That’s what everyone does in our industry. This sucks. Bummer.”

Not sure how much influence he will have, but few would argue that he didn’t eventually “own” the name Commerce on a regional (if not national) scale with his big-budget media buys and well executed marketing plans. If this new Metro Bank employs the same strategies there is no reason to assume they can’t do the same (though that could just be my right-coast-centric thinking).

(btw, I’m not rooting for that…just pointing out that pretty much the same crew has done it before)