The Louisiana Unfair Trade Practices Act (“LUTPA”) found in La. R.S. 51:1401 et seq. dictates that persons subject to unfair and/or deceptive business practices have a civil action and can recover treble damages and attorney’s fees against the opposing party.
Until recently, one of the biggest hurdles a claimant had to get over was one of standing: only “consumers and competitors” had standing to bring an action under LUTPA.
The Courts of Appeal have been split on this issue for some time, but the Louisiana Supreme Court recently decided that a claim under LUTPA is NOT limited strictly to consumers and competitors, stating that a service provider had standing against a former client. Cheramie Services, Inc. . Shell Deepwater Production, Inc., 09-C-1633 (La. 4/23/10).
Additionally, the Fifth Circuit Court of Appeal of Louisiana recently held that a member of an LLC who subsequently formed another LLC and attempted to secure the first LLC’s clients for his other LLC was found to be laible for unfair trade practices. Risk Management Services, LLC v. Moss, 09-CA-632 (La. APpp. 5 Cir. 4/13/10).
So what does this mean?
The courts are still developing what are and what are not unfair trade practices and who can bring an action. Clearly, the trend is towards an expansive reading of the law, and actions that may have been previously thought of as kosher in a free market and the land of opportunity are now being scrutinized by the courts.
The registration of trademarks and service marks is becoming nearly fundamental in business today. Businesses, including small businesses, and individuals are relying on the branding of their goods and services to appeal to the public at large and as a means of advertisement as well.
Like most other states, Louisiana offers trademark and service mark protection to businesses and individuals operating within its borders. Trademark protection extends to “any work, name, symbol, or device or any combination thereof adopted and used by a person to identify goods made or sold by him and to distinguish them from goods made or sold by others” and service mark protection extends to “a mark used in the sale or advertising of services to identify the services of one person and distinguish them from the services of others.” (La. R.S. § 51:211). There are specific restrictions on trademarks and service marks registered in Louisiana; for example, the trademark cannot be immoral or deceptive. While registration is becoming crucial, there are several considerations when determining whether a trademark should be registered and who it should be registered with.
Continue reading The pros and cons of Louisiana businesses registering their trademarks and service marks.
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