MIAMI BUSINESS LITIGATION: UNFAIR COMPETITION

There are many claims a plaintiff can bring to thwart unfair competition or recover damages from unfair competition. Plaintiffs can assert trade secret misappropriation claims, trade mark infringement claims, tortious interference claims, breach of restrictive covenant claims, breach of fiduciary duty of loyalty claims, and deceptive and unfair trade practices claims among others. However, the lesser-known claim of unfair competition may also be brought. The Miami business litigation attorneys of the Mavrick Law Firm represent businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

The common law claim of unfair competition can take several forms. American Heritage Life Insurance Company v. Heritage Life Insurance Company, 494 F.2d 3 (5th Cir.1974) (The common law of unfair competition is an “umbrella for all statutory and nonstatutory causes of action arising out of business conduct which is contrary to honest practice in industrial or commercial matters.”). Its precise elements can be somewhat elusive. Treiber v. StorCOMM, Inc., 2005 WL 2012275 (M.D. Fla. August 16, 2005). However, when a litigant advances an unfair competition claim to protect a trade mark, the claim elements of the claim are more certain. A cause for common law unfair competition claim based on a tradename or trademark infringement requires the plaintiff to prove (1) he or she adopted and used a certain the name, mark or symbol in a particular market or trade area to establish good will and reputation; (2) the name, mark or symbol acquired a special significance as the name of the plaintiff in the particular trade area; (3) the name, mark or symbol is inherently distinctive or acquired secondary meaning by actual usage in the trade area; (4) the defendant use or intends to use an identical or confusingly similar name, mark or symbol in the trade area; and (5) defendant’s action caused customer confusion. Am. Bank of Merritt Island v. First Am. Bank & Tr., 455 So. 2d 443 (Fla. 5th DCA Ct. App. 1984). However, in lawsuits that do not involve a trademark, the elements are vaguer. Courts generally hold that the plaintiff must prove a deceptive or fraudulent conduct of a competitor, a likelihood of consumer confusion, and a common pool of customers. Third Party Verification, Inc. v. Signaturelink, Inc., 492 F. Supp. 2d 1314 (M.D. Fla. 2007). The claim focuses on the defendant’s marketing techniques rather than his or her actual copying conduct. B.H. Bunn Co. v. AAA Replacement Parts Co., 451 F.2d 1254 (5th Cir. 1971).

Preemption is one reason why unfair competition claims are less common than their statutory claim counterparts. For example, many trade secret statutes contain provisions displacing conflicting tort law, restitutory law, and other state laws that would otherwise provide a civil remedy for trade secret misappropriation. Fla. Stat. § 688.008. This placement includes would-be common law unfair competition claims. Trademark statutes are similar in that unfair competition claims can be preempted unless the plaintiff proves the mark was used in bad faith and the case involves record piracy as opposed to other types of trademark misappropriation. Globetrotter Software, Inc. v. Elan Computer Group, Inc., 362 F.3d 1367 (Fed. Cir. 2004); Ediciones Musicales Y Representaciones Internacionales, S.A. v. San Martin, 582 F. Supp. 2d 1358 (S.D. Fla. 2008).

The Miami business litigation lawyers of the Mavrick Law Firm also represent clients in Fort Lauderdale, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.