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Unfair Competition and Trademark Litigation

The Fort Lauderdale unfair competition and trademark litigation attorneys at the Mavrick Law Firm have extensive experience with both state and federal claims for unfair competition and claims involving trademarks.

Florida’s Deceptive and Unfair Trade Practices Act

In Florida, unfair competition claims are typically brought under Florida’s Unfair and Deceptive Trade Practices Act (“FDUTPA”), § 501.201 et seq., Fla. Stat., which prohibits “unfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce.” § 501.204, Fla. Stat. FDUTPA is a remedial statute with purposely broad wording intended to help protect consumers and businesses against a wide range of deceitful or unfair trade practices. In Rollins, Inc. v. Butland, 951 So. 2d 860 (Fla. 2d DCA 2006), the Second District Court of Appeal interpreted FDUTPA as follows:

FDUTPA is intended to protect the consuming public and legitimate business enterprises from those who engage in unfair methods of competition, or unconscionable, deceptive, or unfair acts or practices in the conduct of any trade or commerce. A deceptive practice is one that is likely to mislead consumers. An unfair practice is one that offends established public policy and one that is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers… Thus a…claim for damages under FDUTPA has three elements: (1) a deceptive act or unfair practice; (2) causation; and (3) actual damages. 

Although FDUTPA is mainly a consumer protection statute, it should be noted that a large number of FDUPTA unfair competition lawsuits are brought by businesses against competitors in the same industry. This is because the Florida legislature amended FDUTPA in 2001 to change the word “consumer” to “person.” That amendment had the effect of conferring standing to businesses that wanted to initiate litigation due to unfair competitive conduct under FDUTPA. The Fort Lauderdale unfair competition litigation attorneys at the Mavrick Law Firm have successfully defended businesses against FDUTPA claims brought by both consumers and competing businesses. If you or your business is currently involved in unfair competition litigation in Florida, the Mavrick Law Firm can help.

The Federal Lanaham Act

Under federal law, unfair competition claims, as well as claims involving trademarks, are brought pursuant to the Lanham Act, 15 U.S.C. § 1051. The Lanham Act was enacted by President Harry Truman in 1946 and is the United States’ primary federal trademark statute. The Lanham Act created a national trademark registration system and polices federal unfair competition laws and violations. The Fort Lauderdale unfair competition and trademark litigation attorneys at the Mavrick Law Firm have significant experience with claims under the Lanham Act and are well versed with its requirements and the actions it prohibits. Some of the actions prohibited by the Lanham Act include, inter alia, trademark infringement and false or misleading advertising. The Mavrick Law Firm has obtained excellent results for its clients in federal court litigation involving the Lanham Act encompassed by the United States Court of Appeals for the Eleventh Circuit, which includes Florida, Georgia, and Alabama. The following is a brief overview of how the Eleventh Circuit Court of Appeals has interpreted the Lanham Act in trademark infringement and false advertising cases.

In Tana v. Dantanna's, 611 F.3d 767 (11th Cir. 2010), the Eleventh Circuit analyzed trademark infringement under the Lanham Act. According to the Eleventh Circuit, a trademark is defined as any word, name, symbol, or device, or any combination thereof, used to identify and distinguish one's goods from those manufactured or sold by others and to indicate the source of the goods. To establish a prima facie case of trademark infringement under the Lanham Act, a plaintiff must show (1) that it had trademark rights in the mark or name at issue and (2) that the other party had adopted a mark or name that was the same, or confusingly similar to its mark, such that consumers were likely to confuse the two. To satisfy the first element of a claim for trademark infringement—proof of a valid trademark—a plaintiff need not have a registered mark. The Eleventh Circuit has recognized that the use of another's unregistered, i.e., common law, trademark can constitute a violation of the Lanham Act where the alleged unregistered trademarks used by the plaintiff are so associated with its goods that the use of the same or similar marks by another company constitutes a false representation that its goods came from the same source. With regard to likelihood of consumer confusion, the Eleventh Circuit considers the following factors:

  1. strength of the mark alleged to have been infringed;
  2. similarity of the infringed and infringing marks;
  3. similarity between the goods and services offered under the two marks;
  4. similarity of the actual sales methods used by the holders of the marks, such as their sales outlets and customer base;
  5. similarity of advertising methods;
  6. intent of the alleged infringer to misappropriate the proprietor's good will; and
  7. the existence and extent of actual confusion in the consuming public.

In Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256 (11th Cir. 2004), the Eleventh Circuit discussed the requirements for claims of false advertising under the Lanham Act and explained that a plaintiff must establish that (1) the advertisements of the opposing party were false or misleading; (2) the advertisements deceived, or had the capacity to deceive, consumers; (3) the deception had a material effect on purchasing decisions; (4) the misrepresented product or service affects interstate commerce; and (5) the movant has been—or is likely to be—injured as a result of the false advertising. As an initial matter, the plaintiff must show that the statements at issue were either (1) commercial claims that are literally false as a factual matter or (2) claims that may be literally true or ambiguous but which implicitly convey a false impression, are misleading in context, or likely to deceive consumers.

In addition to trademark infringement and false advertising, the Lanham Act also prohibits trademark dilution, trade dress infringement, and false designation of origin, among other things. If you or your business has been accused of a violation of the Lanham Act, or you simply would like more information about the Lanham Act or enforcement of trademarks, the Fort Lauderdale unfair competition and trademark litigation attorneys at the Mavrick Law Firm are available to assist.

For 25 years, Peter Mavrick has successfully represented clients in unfair competition and trademark litigation and has substantial trial and arbitration experience, obtaining favorable jury trial, bench trial, and arbitration verdicts. Mr. Mavrick has the highest peer-review rating from Martindale-Hubbell, of AV.  He also has a rating of 10 out of 10 from lawyer rating service AVVO.  Mr. Mavrick graduated with honors from Harvard Law School in 1992.  He was awarded entry to Phi Beta Kappa.