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.
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.
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.