Recently in Unfair Business Practices Category

December 3, 2013

Did you pre-pay your car rental reservation but still had to pay extra fees and taxes at the counter?

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If you have used an online travel reservation service to book a car rental (e.g. Priceline, Orbitz), pre-paid the reservation, and were charged extra fees and taxes, even though you didn't agree to extra services, you may have a claim for breach of contract.

Many times an online service company will include fees and taxes as part of the reservation price. If these fees and taxes are actually charged to your credit card (versus just an estimate), the terms and conditions of the particular travel reservation service will govern whether you need to pay any fees and taxes at the reservation counter.

One travel reservation service in particular specifies that once the customer pays taxes and fees to the reservation service, any taxes and fees charged to the customer by the car rental company should be paid by the travel reservation service.

We are investigating a case where a customer pre-paid the taxes and fees to the reservation service, but then was charged extra taxes and fees by the car rental company at the counter. If this has happened to you, please contact us. We are dedicated to protecting consumer's rights.

January 11, 2013

How long is too long to wait to bring a claim for infringement or unfair competition in Georgia?

What legal options do I have in Georgia when a person or business has been using my name, trade dress, brand, trademark, or logo for a long period of time without my knowledge? This is a question that we often hear from our business clients.

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In Georgia, the equitable doctrine of laches can be applied to bar claims for relief that the plaintiff has delayed brining or that fall outside of the applicable statute of limitations period. With respect to trademark infringement and unfair competition claims, however, neither the Lanham Act nor its state law counterpart found in the Uniform Deceptive Trade Practices Act (UDTPA) contain specified limitations periods from which to judge which statute of limitations applies: the two-year statute of limitations period applied by Georgia courts to fill in statute of limitations where the legislature did not provide one (like in employment discrimination claims for relief) found in O.C.G.A. § 9-3-22; or the four-year statute of limitations governing injuries to personalty found in O.C.G.A. § 9-3-31. Another confusing aspect of claims for relief from infringement or unfair competition concern the legal theory to apply to determine when to begin measuring delay in some cases. Fortunately, there are some Georgia cases that shed light on both of these concerns.

The 11th Circuit first grappled with the issue of laches when a trademark owner has not learned of the infringement until after the statute of limitations has run on a claim for damages in 1997 when it decided Kason Industries, Inc. v. Component Hardware Corp., 120 F.3d 1199, 1203 (11th Cir.1997). In that case, the court borrowed from the closest analogous state law and held that the four-year period applicable to similar causes of action under Georgia's UDTPA governs the inquiry in Lanham Act cases. Kason, at 1206.

The Court went on to say that this period is not an absolute bar either because laches is an equitable doctrine that is to be applied flexibly. Id. at 1206. In calculating delay, the clock begins at the point in which the plaintiff "knows or should know she has a provable claim for infringement." Id. at 1206.; see also ProFitness Physical Therapy Center v. Pro-Fit Orthopedic & Sports Physical Therapy, P.C., 314 F.3d 62, 70 (2d Cir.2002) ("[A] plaintiff should not be obligated to sue until its right to protection has ripened such that plaintiff knew or should have known, not simply that defendant was using the potentially offending mark, but that plaintiff had a provable infringement claim against defendant.").

Some courts have found a second, perhaps more important basis to deny summary judgment on the issue of laches. See Angel Flight of Georgia, Inc. v. Angel Flight Se., Inc., 424 F. Supp. 2d 1366, 1371 (N.D. Ga. 2006) aff'd sub nom. Angel Flight of Georgia, Inc. v. Angel Flight Am., Inc., 522 F.3d 1200 (11th Cir. 2008) Because of the strong interest in protecting consumers from deception, courts should not deny a delayed trademark or trade dress owner from obtaining relief when there is strong evidence of likely or actual confusion on the basis of delay alone. Id. at 1370 (citing Restatement (Third) of Unfair Competition § 31, cmt. e (1995)).

These cases tell us that, in Georgia, even though estoppel of laches may bar a trademark owner's claim for money damages after the four-year period has run, a plaintiff may still be granted injunctive relief despite the delay.

Thus, if you have just now learned of past infringement of your trademark, trade name, brand, logo or other mark and want relief in Georgia, you may have a remedy in equity even though your claim is delayed. You should consult an experienced business attorney at Betts & Associates to ensure that your rights are protected.

January 9, 2013

Take Legal Action to Protect Against Wrongful Interference with Your Business Rights in Georgia

What can I do when my business relationship with another goes sour through no fault of my own? This is a question that many of our clients ask us.

Fortunately, there are at least two actionable tort claims available in Georgia for a plaintiff who has been injured by wrongful interference with a business relationship: tortious interference with contractual rights and tortious interference with business relations.

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These two distinct yet related torts require a plaintiff to show four common elements: that the defendant (1) acted improperly and without privilege, (2) acted purposefully and with malice with the intent to injure, (3) induced a third party or parties not to enter into or continue a business relationship with the plaintiff; and (4) for which the plaintiff suffered some financial injury. Chaney v. Harrison & Lynam, LLC, 308 Ga. App. 808, (2011); Gordon Document Products, Inc. v. Service Technologies, Inc., 308 Ga. App. 445 (2011). In Georgia, without privilege means that the defendant must be a stranger to the contract and the underlying business in order to be liable. See Carey Station Village Home Owners Ass'n, Inc. v. Carey Station Village, Inc., 268 Ga. App. 461 (2004) (homeowners association not stranger to contract between developer and certain purchasers of subdivision lots).

Although these torts share common elements, there are a couple of subtle differences to keep in mind when deciding a theory of liability. First, a plaintiff asserting a cause of action for tortious interference with business relations must show that absent the interference, those relations were reasonably likely to develop down the road. Wilson v. City of Sardis, 264 Ga. App. 178 (2003). And, a plaintiff asserting a cause of action for wrongful interference with contractual rights must show the existence of a valid and enforceable contract. Wachovia Ins. Services, Inc. v. Fallon, 299 Ga. App. 440 (2009). Proof of a valid and enforceable contract need not be proved for interference of business relations.

A plaintiff need not wait to show that an interference resulted in breach to pursue tortious interference - he need only show interference that, because of the defendant's interference, a third party's performance of a contract was made more difficult, more expensive or actually caused the party not to perform the contract. St. Mary's Hosp. of Athens, Inc. v. Radiology Professional Corp., 205 Ga. App. 121 (1992).

In cases where a defendant's interference was not to an already existing business relationship or contract but to an anticipated business relationship, or economic expectancy, of plaintiff's, then, to make out a claim for tortious interference, the plaintiff must show that the defendant acted with malice and fraud, and present evidence that as a result of those malicious and fraudulent actions, the economic benefit or gift which would have flowed to him was diverted to the defendant. Ford v. Reynolds, 726 S.E.2d 687 (Ga. Ct. App. 2012).

If you feel like you have been a victim of wrongful interference of business relations or contract rights, then you should consult an experienced business attorney at Betts & Associates to ensure that your rights are protected.

January 2, 2013

What Is a Trademark vs. a Trade Name In Georgia Business Law and How Can I Protect Mine?

A "trademark" functions as an identifier of goods or services, while a "trade name" primarily identifies the owner or operator of a business and may also be used to identify the goods handled by such owner. Stuart Enterprises Int'l, Inc. v. Peykan, Inc., 252 Ga. App. 231 (2001).

A person may acquire a trade name through long and extensive use of the name or through registering a business with the Georgia Secretary of State. However, if a person fails to register a trade name previously acquired, he will not be deprived of using the trade name if someone else does register the name. Giant Mart Corp. v. Giant Discount Foods, Inc., 247 Ga. 775 (1981); Pearl Optical, Inc. v. Pearle Optical of Ga., Inc., 218 Ga. 701 (1963).

There are numerous sources of protection for someone else using your trade name in the course of business. The Uniform Deceptive Trade Practices Act (discussed in a previous post) is one of them. Other forms of protection come from Georgia common law.

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Moreover, a claim for common law trademark infringement is expressly excepted from the registration requirement of Georgia's trademark infringement statute. Diedrich v. Miller & Meier & Associates, Architects and Planners, Inc., 254 Ga. 734, 334 S.E.2d 308 (1985); SCQuARE Intern., Ltd. v. BBDO Atlanta, Inc., 455 F. Supp. 2d 1347 (N.D. Ga. 2006).

If you are unsure whether your trade name or trademark are being adequately protected, make sure to contact an experienced business attorney at Betts & Associates to discuss your options with you over the phone or in person.

December 24, 2012

How to Protect Your Business Reputation in Georgia.

How can I protect my rights and reputation from deceptive business practices? What can I do to stop a business from wrongfully profiting off of my good will? These are questions our business clients frequently ask us.

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What To Do If Someone Has Been Profiting From Your Brand Without Your Consent.

Monetary and injunctive relief may be sought under Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), which generally proscribes "false designations of origin and false descriptions" of goods or services. U.S.C. § 1125(a). Claims available under § 43(a) also include a cause of action for trade dress infringement in Georgia. See, e.g., AmBrit, Inc. v. Kraft, Inc., 812 F.2d 1531, 1545 (11th Cir. 1986). See also, Kason Industries, Inc. v. Component Hardware Group, Inc., 120 F. 3d 1199, 1205 (11th Cir. 1997). A single deceptive or unfair act by a business can be enough to hold it liable in Georgia.

Georgia plaintiffs often bring claims for trademark or trade dress protection under both the Lanham Act and the Georgia Uniform Deceptive Trade Practices Act (UDTPA), which employs the same standard of proof for liability as § 43(a) - "likelihood of confusion." U.S.C. § 1125(a). The UDTPA provides a cause of action when a person, "in the course of his business, vocation, or occupation...[c]auses likelihood of confusion or of misunderstanding as to the source, sponsorship, approval, or certification of goods or services." O.C.G.A. § 10-1-372(a)(2). Any person upon information or belief that he or she is likely to be damaged by unfair or deceptive business practice may commence an action to claim injunctive relief from the court and may be able to recover exemplary damages for intentional violations. O.C.G.A. § 10-1-390 et. seq. Other remedies may also be awarded under state common law claims of trademark infringement and unfair competition. O.C.G.A. § 10-1-392.

One common way a business can trigger liability for unfair and deceptive trade practices in Georgia is by passing off as its own goods or services during the sale, purchase, lease, or rental of goods, services, or property belonging to another. Unfair and deceptive practices such as "passing off" are actionable by any person injured in the course of his or her business, regardless of whether such injured person or entity has their mark, symbol, dress, design or other proprietary information registered with the principal register - Georgia law recognizes a protectable property interest regardless of registration status.

The UDTPA provides numerous examples of actionable deceptive trade or unfair business practices. See generally, O.C.G.A. § 10-1-420 et. seq. For instance, a business may be liable for causing confusion as to where a good or service came from. And, a business may be liable for misrepresenting that a good has a certain quality or benefit when it does not. A business may also be liable for disseminating untrue or misleading information in its advertising of goods, services and commodities in the commercial marketplace. Id.

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There are a variety of remedies available to someone injured by a deceptive or unfair business practice in Georgia. First, an injured party may seek damages in the form of injunctive relief for the purpose of stopping a defendant from continuing its deceptive or unfair business practice. To obtain injunctive relief, a plaintiff must show a connection between the defendant's deceptive act and the harm suffered. Evidence that the plaintiff has been harmed and will likely be harmed at some point in the future by the defendant's actions is considered; however, proof of monetary damage, loss of profits, or intent to deceive is not required. O.C.G.A. § 10-1-373(a). In addition, the plaintiff must show that any damages already sustained can be remedied by the granting of an injunction. Costs and attorneys fees may be granted to the prevailing party when a party charged with a deceptive trade practice has willfully engaged in the trade practice knowing it to be deceptive. O.C.G.A. § 10-1-373(b)(2).

A plaintiff may also obtain relief in the form of monetary damages. Damages may be available where the defendant's deceptive or unfair practice caused unjust enrichment. Treble damages (or three times the amount of actual damages) are to be awarded to the injured party when the harm was intentional.

If you feel that you have been deceived by the practices of a business, you should consult an experienced business attorney at Betts & Associates to ensure that your rights are protected.

December 17, 2012

How To Protect Your Business Trade Secrets In Georgia.

What To Do If Someone Steals Your Business Invention or Idea: How Can I Protect My Business Trade Secrets In Georgia? This is a question clients oftentimes ask us.

While many business lawsuits involve disputes between businesses against businesses, there are also actions for which individuals can bring against other persons or businesses in Georgia. Today's post will discuss how to recover under The Georgia Trade Secrets Act upon someone misappropriating or stealing your trade secret for his or her improper gain.

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The Georgia Trade Secrets Act

Small business owners can obtain relief for the actual or threatened misappropriation or theft of secret information, including, but not limited to, a pattern, drawing, techniques or product plans that derive actual economic value or the potential for economic value from not being generally known to, and not readily ascertainable by proper means by, other people. O.C.G.A. § 10-1-761(4). Reasonable efforts to maintain such information's secrecy must have been made to have an actionable claim. O.C.G.A. § 10-1-761(4); Smith v. Mid-State Nurses, Inc., 261 Ga. 208, 403 S.E.2d 789 (1991). See also, Avnet, Inc. v. Wyle Laboratories, Inc., 263 Ga. 615, 617 (1993) ("Even in the absence of an express agreement, it is an implied term of an employment contract that an employee will not divulge a trade secret learned by virtue of his employment to a competitor of his former employer.") (citation omitted).

Small business owners do not have to suffer financial harm before taking action against a person or business misappropriating their secret information for commercial advantage. O.C.G.A. § 10-1-762. Instead, you can ask the court to order an injunction to eliminate the commercial advantage of those using or threatening to your business idea by improper means. O.C.G.A. § 10-1-762(a). If successful, the court may compel the other party to cease using the information or may condition future use upon payment of a royalty in certain circumstances. O.C.G.A. § 10-1-762.

In addition to injunctive relief, a person is entitled to monetary damages for misappropriation. Damages can include both the actual loss caused by the misappropriation and the unjust enrichment caused by the misappropriation that is not taken into account in actual loss. O.C.G.A. § 10-1-763(a). The jury can consider evidence of the monetary value in an owner's secret information and the fact that the unjustly enriched party realized a gain from the misappropriation of such information when calculating the amount of monetary damages. White v. Arthur Enterprises, Inc., 219 Ga.App. 124 (Ga. Ct. App.) (1995).

While Georgia law provides that a continuing misappropriation by any person constitutes a single claim against that person, the Code allows for separate claims to be made against each person who receives a trade secret from another person who misappropriated that trade secret. O.C.G.A. § 10-1-766.

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Have you ever felt like someone has stolen your business idea? Has a competitor used your secret information to drive you out of business or to a financial breaking point? If you think your trade secret has been or is about to be misappropriated or stolen by another, you should seek advice from an attorney at Betts & Associates who will discuss with you over the phone or in person whether you have been cheated out of your rightful earnings from use of your secret information.