2020 Georgia Code
Title 10 - Commerce and Trade
Chapter 1 - Selling and Other Trade Practices
Article 15 - Deceptive or Unfair Practices
Part 1 - Uniform Deceptive Trade Practices Act
§ 10-1-372. When Trade Practices Are Deceptive; Common-Law and Other Remedies Unaffected

1. A person engages in a deceptive trade practice when, in the course of his business, vocation, or occupation, he:
   1. Passes off goods or services as those of another;
   2. Causes likelihood of confusion or of misunderstanding as to the source, sponsorship, approval, or certification of goods or services;
   3. Causes likelihood of confusion or of misunderstanding as to affiliation, connection, or association with or certification by another;
   4. Uses deceptive representations or designations of geographic origin in connection with goods or services;
   5. Represents that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation, or connection that he does not have;
   6. Represents that goods are original or new if they are deteriorated, altered, reconditioned, reclaimed, used, or secondhand;
   7. Represents that goods or services are of a particular standard, quality, or grade or that goods are of a particular style or model, if they are of another;
   8. Disparages the goods, services, or business of another by false or misleading representation of fact;
   9. Advertises goods or services with intent not to sell them as advertised;
   10. Advertises goods or services with intent not to supply reasonably expectable public demand, unless the advertisement discloses a limitation of quantity;
   11. Makes false or misleading statements of fact concerning the reasons for, existence of, or amounts of price reductions; or
   12. Engages in any other conduct which similarly creates a likelihood of confusion or of misunderstanding.
2. In order to prevail in an action under this part, a complainant need not prove competition between the parties or actual confusion or misunderstanding.
3. This Code section does not affect unfair trade practices otherwise actionable at common law or under other statutes of this state.

(Ga. L. 1968, p. 337, § 2.)

- 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.

- For comment, "The Georgia Fair Business Practices Act: Business As Usual," see 9 Ga. St. U.L. Rev. 453 (1993).

ANALYSIS

• General Consideration
• Relief

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 (11th Cir. 2018).

- 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 Bankr. 821 (Bankr. M.D. Ga. 2003).

- 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 (1989) that opinion is hereby overruled. Future Professionals, Inc. v. Darby, 266 Ga. 690, 470 S.E.2d 644 (1996).

- 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 (N.D. Ga. 2006).

In a suit by owner of a registered mark that consisted of the name of a well-known 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., F. Supp. 2d (N.D. Ga. Feb. 12, 2008).

- 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, Inc., 267 Ga. 801, 485 S.E.2d 22 (1997).

- 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).

- 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 (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).

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, Inc., 267 Ga. 801, 485 S.E.2d 22 (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 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 (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, F. Supp. 2d (N.D. Ga. Aug. 5, 2013).

- 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 (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).

- 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 (11th Cir. 2007).

Cited in Wilkes & McHugh, P.A. v. LTC Consulting, L.P., 306 Ga. 252, 830 S.E.2d 119 (2019).

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).

- 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).

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., F. Supp. 2d (M.D. Ga. Nov. 26, 2004).

- 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).

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., F. Supp. 2d (M.D. Ga. June 28, 2006).

- 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., F. Supp. 2d (M.D. Ga. June 28, 2006).

- 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).

- 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., F. Supp. 2d (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 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).

- 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).

- 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., F. Supp. 2d (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 (N.D. Ga. 1989).

- 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 (N.D. Ga. Mar. 30, 2007).

- 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); Giant Mart Corp. v. Giant Disct. Foods, Inc., 247 Ga. 775, 279 S.E.2d 683 (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 (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 (N.D. Ga. 1984).

- As a result of the special treatment of 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 (11th Cir. 1985).

- 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 (N.D. Ga. 2010).

- 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).

- 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., 130 F.3d 1009 (11th Cir. 1997), modified on other grounds, 139 F.3d 1396 (11th Cir. 1998).

- 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).

- 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., F. Supp. 2d (M.D. Ga. Jan. 14, 2011).

- 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 (1998).

- 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), cert. denied, No. S11C1920, 2012 Ga. LEXIS 66 (Ga. 2012).

- 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., F. Supp. 2d (N.D. Ga. Mar. 15, 2004).

- 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 (N.D. Ga. 2006).

- 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 (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 (M.D. Ga. 2008).

- 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 (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)(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 (M.D. Ga. 2008).

- 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), cert. denied, No. S11C1920, 2012 Ga. LEXIS 66 (Ga. 2012).

- 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., F. Supp. 2d (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 (N.D. Ga. 2005).

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 (N.D. Ga. 2006).

- 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 (M.D. Ga. 2008).

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 (M.D. Ga. 2008).

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 (N.D. Ga. 2005).

Cited in Tri-State Culvert Mfg., Inc. v. Tri-State Drainage Prods., Inc., 236 Ga. 157, 223 S.E.2d 202 (1976); Scientific Applications, Inc. v. Energy Conservation Corp. of Am., 436 F. Supp. 354 (N.D. Ga. 1977); Robert B. Vance & Assocs. v. Baronet Corp., 487 F. Supp. 790 (N.D. Ga. 1979); Martin Luther King, Jr. Ctr. for Social Change, Inc. v. American Heritage Prods., Inc., 508 F. Supp. 854 (N.D. Ga. 1981); Pendigrass v. Edmonds, 247 Ga. 508, 277 S.E.2d 247 (1981); Ford v. Rollins Protective Servs. Co., 171 Ga. App. 882, 322 S.E.2d 62 (1984); Currie v. Cayman Resources Corp., 595 F. Supp. 1364 (N.D. Ga. 1984); Original Appalachian Artworks, Inc. v. Schlaifer Nance & Co., 679 F. Supp. 1564 (N.D. Ga. 1987); Sweeney v. Athens Regional Medical Ctr., 709 F. Supp. 1563 (M.D. Ga. 1989); DeCelles v. Morgan Cleaners & Laundry, Inc., 261 Ga. App. 690, 583 S.E.2d 462 (2003).

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, §§ 82 et seq., 85 et seq.

False Advertising Under Lanham Act, § 43 (a)(1)(B), 44 POF3d 1.

- 87 C.J.S., Trade-Marks, Trade-Names and Unfair Competition, §§ 142, 152, 153, 434 et seq.

- Uniform Deceptive Trade Practices Act (1966 Revision) (U.L.A.) § 2.

- 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.

Copyright, Under Federal Copyright Act (17 USCS § 1 et seq.), in Advertising Materials, Catalogs, and Price Lists, 5 A.L.R. Fed. 625.

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.