Monday, November 21, 2016

Ad For Clients May Use Name And Logo Of Potential Defendant

The Georgia Supreme Court has lifted an injunction entered against a Mississippi law firm based on an advertising campaign

In March 2015, McHugh Fuller Law Group, PLLC (“McHugh Fuller”) began running a month-long, statewide Georgia advertising campaign targeting PruittHealth, Inc. and its affiliated nursing homes (collectively, “PruittHealth”). PruittHealth filed suit against McHugh Fuller under Georgia’s trademark antidilution statute, OCGA § 10-1-451 (b), in the Superior Court of Colquitt County, and the trial court entered a permanent injunction prohibiting McHugh Fuller from running ads about PruittHealth that include the company’s trade names, service marks, or logos. As explained below, the single advertisement that PruittHealth challenges did not violate § 10-1-451 (b). Accordingly, we reverse the trial court’s injunction order.

The color ad is reprinted in the court's opinion

Contrary to PruittHealth’s assertion in the trial court, trademark law does not impose a blanket prohibition on referencing a trademarked name in advertising. “Indeed, it is often virtually impossible to refer to a particular product for purposes of comparison, criticism, point of reference, or any other purpose without using the mark.” New Kids on the Block v. News Am. Pub., Inc., 971 F2d 302, 306 (9th Cir. 1992). Moreover, interpreting OCGA § 10-1- 451 (b) expansively to prohibit the use of PruittHealth’s marks to identify its facilities and services in any way, as the company urges, would raise profound First Amendment issues. See Mattel, 296 F3d at 904 (explaining that reading the federal anti-dilution statute to prohibit all unauthorized use of trademarks “would . . . create a constitutional problem”)...

If PruittHealth believes that McHugh Fuller’s advertisements are untruthful or deceptive, the company must seek relief under some other statutory or common-law cause of action.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2016/11/the-georgia-supreme-court-has-lifted-an-injunction-entered-against-a-mississippi-law-firm-based-on-a-single.html

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