O.C.G.A. § 10-1-372 (2019)

Annotations

Cross references. Criminal penalties for unauthorized reproduction and sale of recorded materials, § 16-8-60. Criminal penalty for deceptive business practices, § 16-9-50. Fraud generally, § 23-2-50 et seq. Misbranding of food generally, § 26-2-28.

Labeling of meat, §§ 26-2-107, 26-2-111, 26-2-112. Misbranding of drugs, § 26-3-8. Misbranding and false advertisement of cosmetics, § 26-3-12 et seq. Time-share program sales, deceptive practices, § 44-3-185 et seq. Law reviews. For comment, “The Georgia Fair Business Practices Act: Business As Usual,” see 9 Ga. St. U.L. Rev. 453 (1993).

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION RELIEF 1. MEDICAL FIELD 2. OTHER BUSINESSES General Consideration Preemption by federal Food, Drug, and Cosmetic Act. - District court properly dismissed the plaintiff’s claim under the Georgia Uniform Deceptive Trade Practices Act, O.C.G.A. § 10-1-370 et seq., because the federal Food, Drug, and Cosmetic Act’s, 21 U.S.C. § 301 et seq., express-preemption provision barred the claim as it would impose liability for conduct that did not violate the Act. Hi-Tech Pharms., Inc. v. HBS Int’l Corp.,

910 F.3d 1186, 2018 U.S. App. LEXIS 34051 (11th Cir. 2018). Standing. - Company’s motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) made applicable in bankruptcy through Fed. R. Bankr. P. 7012 was denied because nothing in the language of Georgia’s Uniform Deceptive Trade Practices Act (UDTPA), O.C.G.A. § 10-1-370 et seq., required the debtor to be a consumer or required a consumer to be injured; therefore, the “consumer” issue was irrelevant to standing under the UDTPA.

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Johnston Indus. Ala., Inc. v. Nat’l Contract Assocs. (In re Johnston Indus.), 300 B.R. 821, 2003 Bankr. LEXIS 1384 (Bankr. M.D. Ga. 2003). Failure to register or otherwise protect name. - Uniform Deceptive Trade Practices Act, O.C.G.A. § 10-1-370 et seq., does not require a party seeking relief thereunder to have registered the relevant trade or service mark or name. To the extent this court ruled otherwise in Elite Personnel, Inc. v. Elite Personnel Services, Inc., 259 Ga. 192, 378 S.E.2d 117, 1989 Ga. LEXIS 204 (1989) that opinion is hereby overruled. Future Professionals v. Darby, 266 Ga. 690, 470 S.E.2d 644, 1996 Ga. LEXIS 238 (1996). Failure to authorize use of name. - Customer sufficiently pled a counterclaim for false endorsement under the Lanham Act, 15 U.S.C. § 1125(a)(1)(A) and the Georgia Deceptive Trade Practices Act, O.C.G.A. § 10-1-370 et seq., specifically O.C.G.A. § 10-1-372(a), because there was evidence in the record that the customer did not authorize a copyright owner’s use of the customer’s name and quote when the owner initially displayed the material on its website and the owner continued to display the material after the customer expressly withdrew any authorization. SCQuARE Int’l, Ltd. v. BBDO Atlanta, Inc., 455 F. Supp. 2d 1347, 2006 U.S. Dist. LEXIS 68407 (N.D. Ga. 2006). In a suit by owner of a registered mark that consisted of the name of a wellknown racehorse against companies that filmed a fictionalized movie of the horse’s career, further discovery under Fed. R. Civ. P. 56(f) was allowed as to owner’s state law claim of false endorsement under O.C.G.A. § 10-1-372 because consumers might have been confused by marketing that stated that the film was a true story, even though it lacked endorsement of the horse’s well-known trainer and jockey, who were portrayed by actors in the film. Thoroughbred Legends, LLC v. Walt Disney Co., No. 1:07-CV-1275-BBM, 2008 U.S. Dist. LEXIS 19960 (N.D. Ga. Feb. 12, 2008). Protection despite failure to register. - Because a sole proprietor’s use of “ATG” had acquired secondary

meaning as a trade name, the proprietor was entitled to enjoin a corporation from using the same name since it was shown that the corporation’s use caused confusion and misunderstanding on the part of the public. Eckles v. Atlanta Tech. Group, 267 Ga. 801, 485 S.E.2d 22, 1997 Ga. LEXIS 105 (1997). Jurisdiction of issue involving similar names. - A claim under the Deceptive Trade Practices Act, O.C.G.A. § 10-1-370 et seq., involving deceptively similar business logos was a claim for equitable relief and was not within the jurisdiction of the court of appeals. Akron Pest Control v. Radar Exterminating Co., 216 Ga. App. 495, 455 S.E.2d 601, 1995 Ga. App. LEXIS 216 (1995). Confusingly similar names. - Claims for service mark infringement under the federal Lanham Act, the Georgia Uniform Deceptive Trade Practices Act, O.C.G.A. § 10-1-370 et seq., and the Georgia law of unfair competition turn on the same question - confusion of similar names. Jellibeans, Inc. v. Skating Clubs of Ga., Inc., 716 F.2d 833, 1983 U.S. App. LEXIS 16353 (11th Cir. 1983). Plaintiffs made requisite showing for injunction that trade name reacquired upon foreclosure of their security interest had acquired a secondary meaning and that defaulting buyers knowingly had adopted a confusingly similar name, which had in fact confused the plaintiffs’ former customers. Reis v. Ralls, 250 Ga. 721, 301 S.E.2d 40, 1983 Ga. LEXIS 614 (1983). Showing that, on more than one occasion, customers misdirected their inquiries and that legal documents were misserved was evidence that the corporation’s use of the plaintiff’s trade name caused confusion and misunderstanding on the part of the public entitling the plaintiff to injunctive relief. Eckles v. Atlanta Tech. Group, 267 Ga. 801, 485 S.E.2d 22, 1997 Ga. LEXIS 105 (1997). Promoter presented sufficient evidence of the strength of the promoter’s marks and of actual confusion amongst the relevant consumer class to avoid summary judgment, and the appellate court reversed the district court’s grant of summary judgment for the group and remanded for trial on the claims of

General Consideration (Cont’d) infringement under the Lanham Act, 15 U.S.C. § 1114, false designation of origin under 15 U.S.C. § 1125, deceptive trade practices under O.C.G.A. § 10-1-372 and unfair competition under O.C.G.A. § 23-2-55 et seq. because: (1) the car dealership promoter had shown actual confusion and the district court erred by overvaluing lack of confusion exhibited by the general public, an audience with no experience in the advertisement buying market; (2) “Slash-It! Sales Event” attained federal incontestable status, so the district court erred in holding that the mark was merely descriptive, and not entitled to strong protection; (3) the promoter created a disputed issue of material fact that the slasher slogans left the same impression, weighing in favor of likelihood of confusion; and (4) the similarities between the two sales allowed for the inference that a reasonable consumer could possibly attribute the products here to the same source. Caliber Auto. Liquidators, Inc. v. Premier Chrysler, Jeep, Dodge, LLC, 605 F.3d 931, 2010 U.S. App. LEXIS 9373 (11th Cir. 2010). Summary judgment was inappropriate as to trademark infringement liability and a deceptive trade practices claim because while the “Xylem” mark was at least suggestive, the marks were substantially similar, and the trademark holder documented over 100 instances of actual confusion resulting from misdirected checks, phone calls, faxes, and emails; the court could not find that no reasonable juror would find there was no confusion created by the accused infringer’s use of the Xylem name and mark. ITT Corp. v. Xylem Group, LLC, 963 F. Supp. 2d 1309, 2013 U.S. Dist. LEXIS 109381 (N.D. Ga. 2013). Disparaging remarks actionable. - Dismissal of a claim under O.C.G.A. § 10-1-372(a)(2) was ordered since that section was deemed to prohibit confusion of trade names, of which there were no allegations in a complaint by a dialysis center against its former medical directors arising from breaches of a non-competition clause; however, there were sufficient statements to deny

dismissal of a claim under O.C.G.A. § 10-1-372(a)(8) since it was alleged that disparaging and damaging comments were made about the services at the center, which were entirely untrue, and which were made with the intent to convey the impression that the center’s facilities were inferior to other competing facilities. DaVita Inc. v. Nephrology Assocs., P.C., 253 F. Supp. 2d 1370, 2003 U.S. Dist. LEXIS 4770 (S.D. Ga. 2003). Presumption against a likelihood of confusion is raised if marks have coexisted in the marketplace over a significant period of time with no evidence of actual confusion. However, the presumption may be rebutted by evidence of other factors tending to support a finding of a likelihood of confusion. Ackerman Sec. Sys. v. Design Sec. Sys., 201 Ga. App. 805, 412 S.E.2d 588, 1991 Ga. App. LEXIS 1577 (1991). False impression not given. - Supplier’s claims of unfair competition under § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), and under the Georgia Uniform Deceptive Trade Practices Act, specifically O.C.G.A. § 10-1-372(a), failed on summary judgment because there was no evidence that a distributor substituted its product on store shelves while suggesting that the source was a supplier or that the distributor’s product was manufactured by anyone other than the distributor; further, the supplier failed to allege evidence to support a claim of passing off at the level of retail stores. Optimum Techs., Inc. v. Henkel Consumer Adhesives, Inc., 496 F.3d 1231, 2007 U.S. App. LEXIS 19918 (11th Cir. 2007). Relief Injunctive relief is sole remedy. - Sole remedy provided for a violation of O.C.G.A. § 10-1-372 is injunctive relief. Lauria v. Ford Motor Co., 169 Ga. App. 203, 312 S.E.2d 190, 1983 Ga. App. LEXIS 3026 (1983). Injunctive relief and damages available for infringement of trade name. - If the right to protection of a trade name exists, the injured party may seek both injunctive relief and damages. Diedrich v. Miller & Meier & Assocs., 254 Ga. 734, 334 S.E.2d 308, 1985 Ga. LEXIS 849 (1985).

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Injunctive relief was denied to plaintiff business association pursuant to Georgia’s Deceptive Trade Practices Act, O.C.G.A. § 10-1-370 et seq., because the association failed to show that the actions taken by a federal advisory committee in adopting more stringent threshold limit values for certain chemicals appeared unrelated to the course of a person’s business, vocation, or occupation. Int’l Brominated Solvents Ass’n v. Am. Conf. of Governmental Indus. Hygienists, Inc., No. 5:04CV394, 2004 U.S. Dist. LEXIS 27605 (M.D. Ga. Nov. 26, 2004), dismissed, 393 F. Supp. 2d 1362, 2005 U.S. Dist. LEXIS 5802 (M.D. Ga. 2005). Monetary relief not available. - A count alleging violation of the Uniform Deceptive Trade Practices Act, O.C.G.A. § 10-1-370 et seq., could not provide a basis for relief because the remedy sought in the complaint, i.e., monetary relief, is not available under the Act. Taylor Auto Group, Inc. v. Jessie, 241 Ga. App. 602, 527 S.E.2d 256, 1999 Ga. App. LEXIS 1680 (1999), cert. denied, No. S00C0694, 2000 Ga. LEXIS 464 (Ga. May 26, 2000). 1. Medical Field No confusion with doctor’s business. - Doctor’s claims alleging that defendants initiated a peer review process for the purpose of driving the doctor’s competing dialysis center out of business were not actionable under O.C.G.A. § 10-1-372(a)(2) of the Georgia Uniform Deceptive Trade Practices Act, O.C.G.A. § 10-1-370 et seq., because nothing in the complaint suggested that defendants used a trade name to cause confusion with the doctor’s business. Wood v. Archbold Med. Ctr., No. 6:05-CV-53, 2006 U.S. Dist. LEXIS 44292 (M.D. Ga. June 28, 2006). Disparaging remarks by doctor not actionable. - Doctor’s claims alleging that defendants initiated a peer review process for the purpose of driving the doctor’s competing dialysis center out of business were not actionable under O.C.G.A. § 10-1-372(a)(8) of the Georgia Uniform Deceptive Trade Practices Act, O.C.G.A. § 10-1-370 et seq., because none of defendants’ alleged conduct, including the solicitation of the doctor’s patients and

the refusal to make community-donated blood available to the doctor, involved false or misleading statements of fact. Wood v. Archbold Med. Ctr., No. 6:05-CV-53, 2006 U.S. Dist. LEXIS 44292 (M.D. Ga. June 28, 2006). Privilege and lack of malice bars recovery by hospital. - Because the defendant’s direct testimony was that the defendant was motivated to report the defendant’s concerns about the level of emergency room care solely out of a sense of duty and concern for patient safety and that the defendant bore no animus against the plaintiff, because there was no other evidence of ill will, and because there was a showing of privilege in the disclosure of patient information, the plaintiff’s failure to show express malice made summary judgment against the plaintiff proper for failure to state a claim under O.C.G.A. § 10-1-372. Dominy v. Shumpert, 235 Ga. App. 500, 510 S.E.2d 81, 1998 Ga. App. LEXIS 1550 (1998). Claims against hospital dismissed. - Court dismissed, without prejudice, an uninsured patient’s Georgia Deceptive Trade Practices Act, O.C.G.A. § 10-1-370 et seq., claims against a non-profit hospital and an affiliated health company because: (1) the patient alleged that the defendants violated state and federal law with regard to the defendant’s billing practices for uninsured and/or indigent patients and the patient should not have to pay the treatment costs because the hospital was a non-profit hospital; and (2) I.R.S. § 501(c)(3) did not confer subject matter jurisdiction on the court over the patient’s trade practice claims because the claims were based on the theory that § 501(c)(3) created an enforceable trust between the hospital and the federal government, and no such trust was created under federal law. Ellis v. Phoebe Putney Health Sys., No. 1:04-CV-80, 2005 U.S. Dist. LEXIS 19935 (M.D. Ga. Apr. 8, 2005). Because the uninsured patients failed to allege that a non-profit hospital made false or misleading statements with respect to price reductions, but merely alleged that the hospital’s disparate pricing was confusing and likely to create a misunderstanding, it failed to adequately

Relief (Cont’d) 1. Medical Field (Cont’d) state a claim under O.C.G.A. § 10-1-372. Cox v. Athens Reg’l Med. Ctr., Inc., 279 Ga. App. 586, 631 S.E.2d 792, 2006 Ga. App. LEXIS 647 (2006), cert. denied, No. S06C1722, 2006 Ga. LEXIS 721 (Ga. Sept. 8, 2006). Claims against health provider dismissed. - Mere fact that the “chargemaster” rates for medical care charged to two uninsured patients pursuant to their contracts with a health care provider exceeded the rates the provider normally charged for medical care covered by insurance and Medicare/Medicaid benefits, even assuming the patients were unaware of the pricing difference, did not establish a violation of the Uniform Deceptive Trade Practices Act, O.C.G.A. § 10-1-370 et seq. Morrell v. Wellstar Health Sys., Inc., 280 Ga. App. 1, 633 S.E.2d 68, 2006 Ga. App. LEXIS 736 (2006), cert. denied, No. S06C1867, 2006 Ga. LEXIS 848 (Ga. Oct. 16, 2006). Cancellation of agreement to sell insurance and surgical products. - Insurer’s verbal cancellation of a written contract with a marketer to sell health, medical, and surgical insurance products did not constitute the type of deceptive trade practice covered by Georgia’s Uniform Deceptive Trade Practices Act, O.C.G.A. § 10-1-370 et seq., specifically O.C.G.A. § 10-1-372(a), because its actions were not directed at misleading the general public in connection with one of its products. Med S. Health Plans, LLC v. Life of the S. Ins. Co., No. 4:07-CV-134, 2008 U.S. Dist. LEXIS 40223 (M.D. Ga. May 19, 2008). 2. Other Businesses Use of existing trademark. - Corporate poultry producer and marketer, by adopting and using the trademark GOLDEN MEDALLION on its frozen poultry products, infringed poultry cooperative’s existing MEDALLION trademark and engaged in unfair competition and deceptive trade practices. Gold Kist, Inc. v. ConAgra, Inc., 708 F.

Supp. 1291, 1989 U.S. Dist. LEXIS 2438 (N.D. Ga. 1989). Descriptive mark without acquired distinctiveness. - Genuine fact issues existed under § 43(a) of the Lanham Act and the Georgia Unfair Trade Practices Act, O.C.G.A. § 10-1-372(a)(1)-(2), (12), as to whether a corporation’s unique coating numbering system, which it accused a competitor of usurping in order to sell surface coating services to mutual clients, was merely a descriptive mark that had not acquired distinctiveness through secondary meaning. Impreglon, Inc. v. Newco Enters., 508 F. Supp. 2d 1222, 2007 U.S. Dist. LEXIS 23640 (N.D. Ga. 2007). Use of family name. - This part authorizes injunction restraining use of family name previously appropriated by another as a trade name, when under all the circumstances, such as the other descriptive words of the trade name, the type of business carried on, the geographical area in which the trade name has acquired a meaning, and other distinguishing factors, there remains a likelihood of confusion and misunderstanding among the general public. Baker Realty Co. v. Baker, 228 Ga. 766, 187 S.E.2d 850, 1972 Ga. LEXIS 902 (1972); Giant Mart Corp. v. Giant Disct. Foods, Inc., 247 Ga. 775, 279 S.E.2d 683, 1981 Ga. LEXIS 877 (1981). Copyright owner sufficiently stated a claim of violation of the Georgia Deceptive Trade Practices Act, O.C.G.A. § 10-1-370 et seq. because the customer’s employees who received a manual and training materials created by the customer copied in part from an owner’s copyrighted manual qualified as members of the public and the limited distribution did not foreclose such a claim. SCQuARE Int’l, Ltd. v. BBDO Atlanta, Inc., 455 F. Supp. 2d 1347, 2006 U.S. Dist. LEXIS 68407 (N.D. Ga. 2006). Use of balloons, costumes, and names of comic book characters by singing telegram company created confusion. DC Comics Inc. v. Unlimited Monkey Bus., Inc., 598 F. Supp. 110, 1984 U.S. Dist. LEXIS 22828 (N.D. Ga. 1984). Liability of telephone directory company for copying directory. - As a result of the special treatment of

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directories in copyright law, a telephone directory company’s copying of the telephone company’s compilation was infringement, and the use of a confusing solicitation made the directory company liable for both unfair competition and deceptive trade act violations. Southern Bell Tel. & Tel. Co. v. Associated Tel. Directory Publishers, 756 F.2d 801, 1985 U.S. App. LEXIS 28735 (11th Cir. 1985). Sufficient allegations of unfair practices involving cellular phones. - Because plaintiff cellular telephone trademark holder’s complaint properly alleged that defendant competitor was a knowing and willing participant in an enterprise that bought the holder’s phones in bulk then altered the phones to circumvent prepaid airtime then resold those phones under the holder’s marks, the complaint properly stated claims for unfair competition and deceptive trade practices. Tracfone Wireless, Inc. v. Zip Wireless Prods., 716 F. Supp. 2d 1275, 2010 U.S. Dist. LEXIS 60639 (N.D. Ga. 2010). Use of “mutual” in name and advertisement of insurance company. - Use of the word “mutual” in the name and advertising of defendant insurance company and defendant’s statement, which plaintiffs claimed gave the false impression, in promotional materials that it would pass along to policy holders any savings resulting from efficient operations did not constitute a violation of the Georgia Uniform Deceptive Trade Practices Act, O.C.G.A. § 10-1-370 et seq., given the clear statements and the company’s policy that the plaintiff is entitled to share the company’s earnings and savings only to the extent dividends were declared by the board in the board’s discretion. A name or promotion violates that Act only if it is misleading or confusing to those using reasonable care. Boynton v. State Farm Mut. Auto. Ins. Co., 207 Ga. App. 756, 429 S.E.2d 304, 1993 Ga. App. LEXIS 356 (1993). False impression not given. - Hotel franchisor’s use of its name and the term “airport” for a hotel in competition with a franchisee did not violate O.C.G.A. § 10-1-372, since the designation was accurate and did not create a false

impression. Camp Creek Hospitality Inns, Inc. v. Sheraton Franchise Corp., 139 F.3d 1396, 1998 U.S. App. LEXIS 8337 (11th Cir. 1998). Joint software venture had no likelihood of confusion. - In a lawsuit between business entities over a failed joint venture to develop a multimedia e-mail software program to be marketed to a certain company, there was no showing of a likelihood of confusion as to the source of the program to support a claim under the Unfair and Deceptive Trade Practices Act, O.C.G.A. § 10-1-372(a). OnBrand Media v. Codex Consulting, Inc., 301 Ga. App. 141, 687 S.E.2d 168, 2009 Ga. App. LEXIS 1347 (2009). Trade dress claim infringement. - Plaintiff adequately stated a claim for trade dress infringement; the plaintiff alleged that the plaintiff had a protectable trade dress in the overall shape and profile of the product and the configuration, design, and placement of the door of the plaintiff’s electric digital smoker, which adequately identified the features that comprised the plaintiff’s alleged trade dress. Masterbuilt Mfg. v. Bruce Foods Corp., No. 4:10-CV-35, 2011 U.S. Dist. LEXIS 4009 (M.D. Ga. Jan. 14, 2011). Opening office near competitor. - Defendant did not engage in a deceptive trade practice when the defendant leased an office in the same building as the plaintiff, with which it competed, since the defendant used its own name and a different telephone number and there was no evidence that it attempted to pass itself as the plaintiff. Wolff v. Protege Sys., 234 Ga. App. 251, 506 S.E.2d 429. Evidence of improper competition with former employer. - Evidence that a former employee solicited an employer’s former students and clients on behalf of the employee’s new company, despite promising not to do so, falsely held out as being Project Management Professional certified, falsely represented that the employer’s customers were the employee’s company’s customers, and used nearly duplicate versions of certain course materials without the employer’s consent, supported a jury’s finding that the

Relief (Cont’d) 2. Other Businesses (Cont’d) employee violated the Uniform Deceptive Trade Practices Act, O.C.G.A. § 10-1-370 et seq. Trotman v. Velociteach Project Mgmt., LLC, 311 Ga. App. 208, 715 S.E.2d 449, 2011 Ga. App. LEXIS 664 (2011), cert. denied, No. S11C1920, 2012 Ga. LEXIS 66 (Ga. Jan. 9, 2012). Amended complaint alleging violation of Georgia Deceptive Trade Practices Act granted. - In an action in which an interexchange carrier asserted it was not obligated to pay fees to a local carrier for misrepresented toll-free cell calls, it’s amendment to add claims alleging violations under the Georgia RICO Act, O.C.G.A. § 16-14-1 et seq., common law fraud, and the Uniform Deceptive Trade Practices Act, O.C.G.A. § 10-1-370 et seq., was not futile given the court’s denial of summary judgment on the local carrier’s counterclaims. ITC Deltacom Communs. v. US LEC Corp., No. 3:02-CV-116-JTC, 2004 U.S. Dist. LEXIS 27557 (N.D. Ga. Mar. 15, 2004). Two decades for actual confusion to result. - Claims of trademark infringement and false advertising under 15 U.S.C. § 1125, and violation of the Uniform Deceptive Trade Practices Act (UDTPA), O.C.G.A. § 10-1-370 et seq., specifically O.C.G.A. § 10-1-372, were not barred under the doctrine of estoppel by laches, because even though the plaintiff did not take action for over two decades of the parties’ coexistence using the disputed mark, the claims did not ripen until the plaintiff learned that the defendant intended to open an office inside the plaintiff’s territory, at which time incidents of actual confusion began to occur. Angel Flight of Ga., Inc. v. Angel Flight Southeast, Inc., 424 F. Supp. 2d 1366, 2006 U.S. Dist. LEXIS 16422 (N.D. Ga. 2006). Association issuing opinion on safety standards not misrepresentation. - Georgia’s Uniform Deceptive Trade Practices Act, O.C.G.A. § 10-1-370 et seq., specifically O.C.G.A. § 10-1-372(a)(8), did not bar a nonprofit professional association from issuing an opinion on workplace safety standards for

chemicals because the opinion did not constitute a misleading representation of fact. Int’l Brominated Solvents Ass’n v. Am. Conf. of Governmental Indus. Hygienists, 625 F. Supp. 2d 1310, 2008 U.S. Dist. LEXIS 36901 (M.D. Ga. 2008). Georgia’s Uniform Deceptive Trade Practices Act, O.C.G.A. § 10-1-370 et seq., specifically O.C.G.A. § 10-1-372(a)(7), does not apply to an entity’s formation and dissemination of opinions on workplace safety if the entity is not engaged in the business practices it is evaluating. Int’l Brominated Solvents Ass’n v. Am. Conf. of Governmental Indus. Hygienists, 625 F. Supp. 2d 1310, 2008 U.S. Dist. LEXIS 36901 (M.D. Ga. 2008). Association offering workplace safety opinions. - Georgia’s Uniform Deceptive Trade Practices Act, O.C.G.A. § 10-1-370 et seq., was inapplicable to a national trade group’s suit alleging that a nonprofit professional association disparaged the association’s members by forming and disseminating the association’s opinion about acceptable workplace-safety exposure levels for chemicals because the association was not a consumer or engaged in trade. Int’l Brominated Solvents Ass’n v. Am. Conf. of Governmental Indus. Hygienists, 625 F. Supp. 2d 1310, 2008 U.S. Dist. LEXIS 36901 (M.D. Ga. 2008). Evidence of improper competition with former employer. - Evidence that a former employee solicited an employer’s former students and clients on behalf of the employee’s new company, despite promising not to do so, falsely held out as being Project Management Professional certified, falsely represented that the employer’s customers were the employee’s company’s customers, and used nearly duplicate versions of certain course materials without the employer’s consent, supported a jury’s finding that the employee violated the Uniform Deceptive Trade Practices Act, O.C.G.A. § 10-1-370 et seq. Trotman v. Velociteach Project Mgmt., LLC, 311 Ga. App. 208, 715 S.E.2d 449, 2011 Ga. App. LEXIS 664 (2011), cert. denied, No. S11C1920, 2012 Ga. LEXIS 66 (Ga. Jan. 9, 2012). Amended complaint alleging violation of Georgia Deceptive Trade Practices Act granted. - In an action

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in which an interexchange carrier asserted it was not obligated to pay fees to a local carrier for misrepresented toll-free cell calls, it’s amendment to add claims alleging violations under the Georgia RICO Act, O.C.G.A. § 16-14-1 et seq., common law fraud, and the Uniform Deceptive Trade Practices Act, O.C.G.A. § 10-1-370 et seq., was not futile given the court’s denial of summary judgment on the local carrier’s counterclaims. ITC Deltacom Communs. v. US LEC Corp., No. 3:02-CV-116-JTC, 2004 U.S. Dist. LEXIS 27557 (N.D. Ga. Mar. 15, 2004). Color trademark owner’s infringement claim under 15 U.S.C. § 1114 was not barred by laches because the four year limitations period of the Georgia Uniform Deceptive Trade Practices Act, O.C.G.A. § 10-1-372, applied and the relevant time period for purposes of laches was the date that the competitors began selling their tennis racquet overgrips that were similar in color to the owner’s color

mark, which was less than four years prior. Unique Sports Prods., Inc. v. Babolat VS, 403 F. Supp. 2d 1229, 2005 U.S. Dist. LEXIS 40023 (N.D. Ga. 2005). Claims of trademark infringement and false advertising under 15 U.S.C. § 1125. - Claims of trademark infringement and false advertising under 15 U.S.C. § 1125, and violation of the Uniform Deceptive Trade Practices Act (UDTPA), O.C.G.A. § 10-1-372, were not barred under the doctrine of estoppel by laches, because even though the plaintiff did not take action for over two decades of the parties’ coexistence using the disputed mark, the claims did not ripen until the plaintiff learned that the defendant intended to open an office inside the plaintiff’s territory, at which time incidents of actual confusion began to occur. Angel Flight of Ga., Inc. v. Angel Flight Southeast, Inc., 424 F. Supp. 2d 1366, 2006 U.S. Dist. LEXIS 16422 (N.D. Ga. 2006).

RESEARCH REFERENCES Am. Jur. 2d. 54A Am. Jur. 2d, Monopolies, Restraints of Trade, and Unfair Trade Practices, §§ 1066 et seq., 1104 et seq. 74 Am. Jur. 2d, Trademarks and Tradenames, § 125 et seq. Am. Jur. Proof of Facts. False Advertising Under Lanham Act, § 43 (a)(1)(B), 44 POF3d 1. C.J.S. 87 C.J.S., Trade-Marks, Trade-Names and Unfair Competition, §§ 186 et seq., 196 et seq., 434 et seq. U.L.A. Uniform Deceptive Trade Practices Act (1966 Revision) (U.L.A.) § 2. ALR. Right to protection against appropriation of advertising matter or methods, 17 A.L.R. 760; 30 A.L.R. 615; 5 A.L.R. Fed. 625. Statute or ordinance in relation to advertising as interference with interstate commerce, 57 A.L.R. 105; 115 A.L.R. 952. Right of producer or distributor to protection against use of his containers, 60 A.L.R. 285. Opportunity of buyer of personal property to ascertain facts as affecting claim of

fraud on part of seller in misrepresenting property, 61 A.L.R. 492. Protection of business or trading corporation against use of same or similar name by another corporation, 66 A.L.R. 948; 72 A.L.R.3d 8; 115 A.L.R. 1241. Doctrine of secondary meaning in the law of trademarks and of unfair competition, 150 A.L.R. 1067. Damages recoverable for wrongful registration of trademark, 26 A.L.R.2d 1184. Commercial competitor’s truthful denomination of his goods as copies of designs of another, using designer’s name, as trademark infringement, unfair competition, or the like, 1 A.L.R.3d 760. Rights and remedies with respect to another’s use of a deceptively similar advertising slogan, 2 A.L.R.3d 748. Former employee’s duty, in absence of express contract, not to solicit former employer’s customers or otherwise use his knowledge of customer lists acquired in earlier employment, 28 A.L.R.3d 7. Unfair competition by direct reproduction of literary, artistic, or musical property, 40 A.L.R.3d 566. Validity, construction, and effect of state legislation regulating or controlling “bait-

and-switch” or “disparagement” advertising or sales practices, 50 A.L.R.3d 1008. Validity of pyramid distribution plan, 54 A.L.R.3d 217. Use of “family name” by corporation as unfair competition, 72 A.L.R.3d 8. Failure to deliver ordered merchandise to customer on date promised as unfair or deceptive trade practice, 7 A.L.R.4th 1257. Health provider’s agreement as to patient’s copayment liability after award by professional service insurer as unfair trade practice under state law, 49 A.L.R.4th 1240. What goods or property are “used,” “secondhand,” or the like, for purposes of state consumer laws prohibiting claims that such items are new, 59 A.L.R.4th 1192. World wide web domain as violating state trademark protection statute or state unfair trade practices act, 96 A.L.R.5th 1. Practices forbidden by state deceptive trade practice and consumer protection acts - pyramid or ponzi or referral sales schemes, 48 A.L.R.6th 511.

Judicial remedies for proceeds and funds from Ponzi schemes, 100 A.L.R.6th 281. Fraudulent representations concerning price, discount, condition, quality, availability or shipping costs of consumer goods and services sold on internet, 38 A.L.R.7th Art. 4. Consumer Claims Arising out of Alleged Use of Child or Forced Labor, Human Trafficking, and Slavery in Production of Consumer Goods, 82 A.L.R.7th 6. Copyright, Under Federal Copyright Act (17 USCS § 1 et seq.), in Advertising Materials, Catalogs, and Price Lists, 5 A.L.R. Fed. 625. What Matters Not Contained in Pleadings may be Considered in Ruling on Motion to Dismiss Under Rule 12(b)(6) of Federal Rules of Civil Procedure or Motion for Judgment on Pleadings Under Rule 12(c) without Conversion to Motion for Summary Judgment - Sixth Circuit, 77 A.L.R. Fed. 3d 2.