O.C.G.A. § 10-1-373 (2019)

Annotations

Law reviews. For comment, “The Georgia

Business Practices Act: Business As Usual,” see 9 Ga. St. U.L. Rev. 453 (1993). Fair

JUDICIAL DECISIONS Consumer. - 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. 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). Injunction is sole remedy. - Sole remedy provided under O.C.G.A. § 10-1-373 is injunctive relief. Lauria v. Ford Motor Co., 169 Ga. App. 203, 312 S.E.2d 190, 1983 Ga. App. LEXIS 3026 (1983). Sole remedy available under O.C.G.A. § 10-1-373 was injunctive relief; however, a plaintiff had to establish a likelihood of damage to plaintiff by a deceptive trade practice of another. Moore-Davis Motors, Inc. v. Joyner, 252 Ga. App. 617, 556 S.E.2d 137, 2001 Ga. App. LEXIS 1100 (2001), cert. dismissed, No. S02C0541, 2002 Ga. LEXIS 359 (Ga. Apr. 16, 2002). Because a marketer did not seek injunctive relief, an insurer’s verbal cancellation of a written contract with the marketer to sell health, medical, and surgical insurance products did not give rise to a cause of action under 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 an injunction was the sole remedy available under O.C.G.A. § 10-1-373. 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). In a deceptive trade case, the trial court erred in granting permanent injunctive relief at the interlocutory hearing as the defendant had no notice that the trial

court intended at that hearing to consider the merits of permanent injunctive relief. McHugh Fuller Law Group, PLLC v. PruittHealth-Toccoa, LLC, 297 Ga. 94, 772 S.E.2d 660, 2015 Ga. LEXIS 297 (2015). Proof of neither direct competition nor actual confusion is required to obtain relief under O.C.G.A. § 10-1-373. All that is required is that use of name cause confusion to others using reasonable care. Giant Mart Corp. v. Giant Disct. Foods, Inc., 247 Ga. 775, 279 S.E.2d 683, 1981 Ga. LEXIS 877 (1981). Proof of falsity is sufficient to sustain a finding of irreparable injury for purposes of a preliminary injunction. Energy Four, Inc. v. Dornier Medical Sys., 765 F. Supp. 724, 1991 U.S. Dist. LEXIS 7139 (N.D. Ga. 1991). Proof of lost sales. - Plaintiff who can prove actual lost sales is entitled to an injunction even though the decline in the plaintiff’s sales is mostly attributable to factors other than the plaintiff’s competitor’s allegedly false or misleading representations. Because detailed proof of individual lost sales goes to the issue of damages, it is not a prerequisite for equitable relief. Energy Four, Inc. v. Dornier Medical Sys., 765 F. Supp. 724, 1991 U.S. Dist. LEXIS 7139 (N.D. Ga. 1991). Proof of monetary damages may not be necessary to sustain every cause of action based on the plaintiff’s disparagement claim, but a showing that some customer’s buying decision was adversely affected is a threshold requirement for each. Servicetrends, Inc. v. Siemens Medical Sys., 870 F. Supp. 1042, 1994 U.S. Dist. LEXIS 11383 (N.D. Ga. 1994), amended, No. 1:93-CV-299-JTC, 1994 U.S. Dist. LEXIS 15997 (N.D. Ga. June 24, 1994). Confusingly similar names. - This part authorizes injunctions restraining use of a family name previously

appropriated by another as a trade name, where 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). Infringement of trade names. - 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). Chapter 11 debtor was entitled to a preliminary injunction under the Lanham Act, 11 U.S.C. § 1125(a), and O.C.G.A. §§ 10-1-373 and 10-1-451, against a competing user of its trade name “Reliable Heating and Air” because the debtor clearly demonstrated a substantial likelihood of success on the merits of its claims and demonstrated that it would suffer irreparable harm if an injunction were not issued. Reliable Air, Inc. v. Jape (In re Reliable Air, Inc.), No. 05-85627, No. 07-6352, 2007 Bankr. LEXIS 3711 (Bankr. N.D. Ga. Sept. 14, 2007). Denial of interlocutory injunction reversed only for abuse of discretion. - The denial of an interlocutory injunction against alleged deceptive trade practices will not be reversed unless it appears that the trial court has abused the court’s discretion. Baker Realty Co. v. Baker, 228 Ga. 766, 187 S.E.2d 850, 1972 Ga. LEXIS 902 (1972). Requirement of harm. - Unpublished decision: O.C.G.A. § 10-1-373(a) of the Georgia Deceptive

Trade Practices Act, O.C.G.A. § 10-1-370 et seq., required the plaintiff dry cleaners to allege they were likely to be damaged by a deceptive trade practice and the allegations that the defendant natural gas supplier disseminated information about future natural gas prices did not pose any future harm, nor were the dry cleaners entitled to injunctive relief for a hypothetical future harm; thus, the Deceptive Trade Practices Act claims failed. Byung Ho Cheoun v. Infinite Energy, Inc., 363 Fed. Appx. 691, 2010 U.S. App. LEXIS 1866 (11th Cir. 2010). Punitive damages. - Trademark holder was not entitled to summary judgment regarding punitive damages under Georgia state law because O.C.G.A. § 10-1-373 applied only to causes of action for torts arising before July 1, 1987, and this issue was required to be decided only if there was an award of damages in the action for trademark infringement. ITT Corp. v. Xylem Group, LLC, 963 F. Supp. 2d 1309, 2013 U.S. Dist. LEXIS 109381 (N.D. Ga. 2013). Attorneys’ fees determined in bifurcated proceeding. - When an alleged Uniform Deceptive Trade Practices Act (UDTPA), O.C.G.A. § 10-1-370, et seq., violation is one of several claims being tried, the UDTPA contemplates a bifurcated proceeding. The statute anticipates that the fact finder will first determine the prevailing party before the trial court makes a decision as to whether an award of attorney fees is warranted. Logically, therefore, neither party would present evidence as to their attorney fees during the trial, and the issue is not required to be raised in the pretrial order. Bearoff v. Craton, 350 Ga. App. 826, 830 S.E.2d 362, 2019 Ga. App. LEXIS 384 (2019).

RESEARCH REFERENCES Am. Jur. 2d. 54A Am. Jur. 2d, Monopolies, Restraints of Trade, and Unfair Trade Practices, § 1066 et seq. 74 Am. Jur. 2d, Trademarks and Tradenames, § 125 et seq. C.J.S. 87 C.J.S., Trade-Marks, Trade-Names,

and Unfair Competition, §§ 391 et seq., 436 et seq. U.L.A. Uniform Deceptive Trade Practices Act (1966 Revision) (U.L.A.) § 3. ALR. Right to protection against

SELLING/OTHER TRADE PRACTICES

appropriation of advertising matter or methods, 17 A.L.R. 760; 30 A.L.R. 615; 5 A.L.R. Fed. 625. Right of producer or distributor to protection against use of his containers, 60 A.L.R. 285. Doctrine of secondary meaning in the law of trademarks and of unfair competition, 150 A.L.R. 1067. Punitive or exemplary damages as recoverable for trademark infringement or unfair competition, 47 A.L.R.2d 1117. Rights and remedies with respect to another’s use of a deceptively similar advertising slogan, 2 A.L.R.3d 748. Right of charitable or religious association or corporation to protection against use of same or similar name by another, 37 A.L.R.3d 277. Right to private action under state consumer protection Act, 62 A.L.R.3d 169.

Failure to deliver ordered merchandise to customer on date promised as unfair or deceptive trade practice, 7 A.L.R.4th 1257. Right to private action under state consumer protection act - Equitable relief available, 115 A.L.R.5th 709. 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.