Fair competition is the foundation of our capitalistic system. Fair competition incentivizes maximum efficiency in our market, brings the best products to the consumer, allows new businesses an opportunity to enter the market, and allows established businesses to protect their goodwill and hard-won market placement. However, some businesses seek to gain an unfair competitive advantage through means that are less than honest, improperly copy successful products, intentionally create consumer confusion, or outright reflect theft of other ideas, confidential information, or trademarks. Florida and federal law provide various conduits to file a lawsuit to correct unfair competition. One of these is a claim actually titled “unfair competition.” This brief note explains the elements of a claim for unfair competition. If you have questions about unfair competition in Florida, please contact Bernhard Law Firm at www.bernhardlawfirm.com, 786-871-3349, abernhard@bernhardlawfirm.com.

A Florida plaintiff can sue for unfair competition under two legal theories: (1) as a statutory claim under the Landham Act, or (2) as a common law claim under any identifiable case law. The elements of an unfair competition claim under the Lanham Act are: (1) the plaintiff had prior rights to a specific trademark or trade dress; (2) the defendant employed a mark that was the same, or confusingly similar, to plaintiff’s mark, so that consumers were likely to be confused. Zamperla, Inc. v. S.B.F., 2012 WL 5266044, at *4 (M.D. Fla. Oct. 5, 2012) (citing Petmed Express, Inc. v. Medpets.com, Inc., 336 F. Supp. 2d 1213, 1218 (S.D. Fla. 2004).

The elements of a claim for unfair competition under the common law of Florida are: (1) the plaintiff is the prior owner of a trade name or service mark; (2) the trade name or service mark is arbitrary, suggestive, or has acquired a secondary meaning; (3) the defendant is using a confusingly similar trade name or service mark to indicate or identify similar goods and services which it is marketing in competition with plaintiff in the same locale where plaintiff has already established its trade name or service mark; and (4) as a result of the defendant’s actions, consumer confusion as to the source or sponsorship of defendant’s goods is likely. Id. If you have questions about unfair competition in Florida, please contact Bernhard Law Firm at www.bernhardlawfirm.com, 786-871-3349, abernhard@bernhardlawfirm.com.