Eckles v. Atl. Tech. Group, Inc.

• Decision Date: 04 April 1997
• Citation: 485 S.E.2d 22,267 Ga. 801
• Parties: , 97 FCDR 1239 ECKLES d/b/a Atlanta Technology Group v. ATLANTA TECHNOLOGY GROUP, INC.
• Court: Georgia Supreme Court

267 Ga. 801

485 S.E.2d 22

97 Fulton County D. Rep. 1239

ECKLES d/b/a ATLANTA TECHNOLOGY GROUP v. ATLANTA TECHNOLOGY GROUP, INC.

S96A1507.

SUPREME COURT OF GEORGIA

April 4, 1997, Decided

Womble, Carlyle, Sandridge & Rice, Sonya Y. Ragland, Kirk W. Watkins, Everett W. Gee III, for appellant.

Deborah L. Britt, for appellee.Michael J. Bowers, Attorney General, Michael E. Hobbs, Counsel to Attorney General, Daryl A. Robinson, Deputy Counsel to Attorney General, Glass, McCullough, Sherrill & Harrold, John A. Sherrill, Bryan A. Downs, Sheri M. Rosenthal, amici curiae.

Carley, Justice. All the Justices concur, except Sears, J., who concurs specially.

Carley [267 Ga. 801]

[485 S.E.2d 23] Carley, Justice.

In 1990, Andrew Jackson Eckles began operating a sole proprietorship under the unregistered trade name "Atlanta Technology [267 Ga. 802] Group" ("ATG"). In the years that followed, Eckles devoted all of his time and resources to the development of his business, which has continuously used the trade name "ATG." In May 1994, Eckles received several telephone calls from confused customers who informed him that Atlanta Technology [485 S.E.2d 24] Group, Inc. (ATGI), which had been incorporated in Delaware in 1993, also was using the trade name "ATG." Concerned about the likelihood of name confusion and its undesirable consequences, Eckles contacted an officer of ATGI and informed him that ATGI was infringing on his trade name. When Eckles was unsuccessful in his efforts to reach a compromise, he filed this action seeking an interlocutory and permanent injunction prohibiting ATGI from using "ATG" for trade or business purposes. After conducting a hearing, the trial court entered an order holding that ATGI's use of the trade name "ATG" did not infringe upon Eckles' use thereof. From that order, Eckles brings this appeal.

1. As a general rule, geographical names and descriptive words are incapable of appropriation as a trade name. Womble v. Parker, 208 Ga. 378 (1) (67 S.E.2d 133) (1951). However, when a business entity's use of such words causes the public to understand that the goods or services of that business entity are designated thereby, then those words do acquire a secondary meaning which is protected under the law. Future Professionals v. Darby, 266 Ga. 690, 692 (3) (470 S.E.2d 644) (1996); Giant Mart Corp. v. Giant Discount Foods, 247 Ga. 775, 776 (279 S.E.2d 683) (1981); Womble v. Parker, supra. Under the undisputed evidence of record, Eckles' use of "ATG" over the years has caused that name to become closely associated with his products and services and "ATG" is now understood by the public to designate his products and services. Therefore, it is undisputed that "ATG," although descriptive, has acquired secondary meaning as a trade name pertaining to Eckles' goods and services.

In Georgia, a trade name is protected by the common law and by several statutes. One of those statutes is the Uniform Deceptive Trade Practices Act (UDTPA), which provides protection to a trade name when another's use of the same or similar name "causes a likelihood of confusion or of misunderstanding as to the source, sponsorship, approval, or certification of goods or services." O.C.G.A. § 10-1-372 (a) (2). For Eckles to obtain relief under UDTPA, he was not required to show that he suffered monetary damages or that ATGI intended to cause confusion or misunderstanding to the public. O.C.G.A. § 10-1-373. Moreover, protection would not be dependent upon Eckles' registration of "ATG" as his trade name, since "'all that is required (for relief under UDTPA) is that the use of a name cause confusion to others (who are) using reasonable care.'" Future Professionals v. Darby, supra at 691 (2). The undisputed evidence of record establishes that ATGI's use of "ATG" has caused confusion and misunderstanding [267 Ga. 803] on the part of the public. On more than one occasion, customers have misdirected their inquiries and legal documents have been misserved. Accordingly, based upon the unrefuted evidence of record, it is clear that Eckles is entitled to injunctive relief under UDTPA and that the trial court's contrary ruling is erroneous and must be reversed.

2. ATGI has been represented in this case by one of its corporate officers who is not a licensed attorney. Because this Court has not previously determined whether it is permissible for a corporation to have as its legal representative an individual who is not licensed to practice law in the courts of this state, we take this occasion to address that issue.

A corporation is a "person." O.C.G.A. § 1-3-3 (14). Because it is a "person," a corporation certainly is entitled to receive due process and equal protection from this state. Caldwell v. Hosp. Auth. of Charlton County, 248 Ga. 887, 888 (1) (287 S.E.2d 15) (1982). Art. I, Sec. I, Par. XII of the Ga. Const. of 1983 also provides that "no person shall be deprived of the right to prosecute or defend, either in person or by an attorney, that person's own cause in any of the courts of this state." Accordingly, if a corporation were also a "person" with the capability of representing its "own cause," then that corporate entity...