Future Professionals, Inc. v. Darby

• Decision Date: 20 May 1996
• Docket Number: No. S96A0234,S96A0234
• Citation: 266 Ga. 690,470 S.E.2d 644
• Parties: FUTURE PROFESSIONALS, INC. v. DARBY et al.
• Court: Georgia Supreme Court

Page 644

470 S.E.2d 644

266 Ga. 690

FUTURE PROFESSIONALS, INC. v. DARBY et al.

No. S96A0234.

Supreme Court of Georgia.

May 20, 1996.

James L. Seigle, Fayetteville, for Appellant.

William L. Bost, Greenfield, Bost & Kliros, Atlanta, for Appellees.

SEARS, Justice.

Appellant Future Professionals, Inc. ("FAPA") and appellees Darby and Aviation Information Resources, Inc. ("Darby" and "AIR") are engaged in the business of providing career counseling services to prospective job applicants in the airline industry. This case was initiated when FAPA filed a complaint seeking to determine the value of stock Darby owned in FAPA. Thereafter, AIR was joined as a defendant, and FAPA amended its original complaint to include an alleged violation of the Georgia Uniform Deceptive Trade Practices Act ("the Act" or "UDTPA"), OCGA § 10-1-370 et seq., against AIR. This appeal is concerned solely with the trial court's grant of partial summary judgment in favor of AIR with respect to that count. ¹ Because we find that the phrase FAPA seeks to protect under the Act, "future airline pilots," is merely descriptive, and has not acquired any secondary meaning that would trigger protection under UDTPA, we affirm.

1. In the superior court, FAPA sought to enjoin AIR's use of the phrase "future airline pilots" in its advertisements and promotions, contending that the phrase is and has been associated by a substantial number of individuals in the aviation industry with FAPA. FAPA argued that AIR's use of the phrase "future airline pilots" to promote its products and services had created actual confusion or misunderstanding with respect to the products and services provided by FAPA, entitling it to injunctive relief.

The trial court granted AIR summary judgment on FAPA's count under the Act, ruling that the phrase "future airline pilots" is merely descriptive and is not entitled to protection under the Act. The trial court also found that the phrase is neither a protected name utilized by FAPA nor a registered trademark or service mark. FAPA argues on appeal that the trial court erred in misinterpreting the Act so as to apply it only to registered trade and service marks, and trade names. FAPA also argues that the trial court erred in granting AIR summary judgment when issues of material fact remain concerning whether the phrase "future airline pilots" has acquired secondary meaning sufficient to trigger the Act's protections.

2. Georgia protects trade names by both common law and statute. ² One of these statutes, UDTPA, entitles a person to the protection of a trade name when another person's use of a similar name "causes likelihood of confusion or of misunderstanding as to the source, sponsorship, approval, or certification of goods or services." ³ A party "likely to be damaged" by such deceptive trade practices may obtain injunctive relief without proving either monetary damages or that the offender intended to deceive the consuming public by causing confusion or misunderstanding. ⁴ The requirements for obtaining relief under UDTPA are less stringent than other relevant statutory sections, and "all that is required [for relief under UDTPA] is that the use of a name cause confusion to others [who are] using reasonable care." ⁵

While the registration of a trademark or service mark is a prerequisite for relief under certain other sections of the Code, ⁶ UDTPA does not require a party seeking relief thereunder to have registered the relevant trade or service mark or name. ⁷ To the extent this Court ruled otherwise in Elite Personnel, Inc. v. Elite Personnel Services, Inc., ⁸ that opinion is hereby overruled.

Accordingly, had the trial court in this case entered summary judgment against FAPA on its UDTPA claim merely because the phrase "future airline pilots" is not a registered trade or service mark or name belonging to FAPA, that ruling would have been in error. As emphasized by FAPA, the trial court did note in its order that the phrase "future airline pilots" was not a registered mark or name. However, we reject FAPA's argument that merely by noting that "future airline pilots" is not registered, the trial court improperly limited its application of the Act to registered marks or names. Rather, as explained in division three below, we find that the trial court's ruling was properly based upon its findings that there was no genuine issue of material fact that "future airline pilots" is purely descriptive and has no secondary meaning, and that AIR was entitled to a judgment as a matter of law.

3. It is well established that descriptive words or phrases are incapable of exclusive appropriation, and are not entitled to protection as a mark or name unless the party seeking relief establishes that the word or phrase has acquired a secondary meaning due to (1) its use in connection with the business or trade of the party seeking relief, and (2) the public's understanding, through such use, that the word or phrase designates the goods, services, or business of that party. ⁹

The evidence of record in this case shows that the phrase "future airline pilots" is generic in nature, and describes potential customers of businesses that provide career counseling services to job applicants in the airline industry. The evidence also shows that at the time it filed its claim, FAPA had not used the phrase "future airline pilots" in its advertising for at least several years. In this regard, the trial court correctly found that the phrase was not utilized by FAPA to describe its services. Moreover, the record contains no admissible evidence of consumer confusion or misunderstanding regarding the source of the phrase "future airline pilots," or that would tend to show that the phrase is associated by a substantial number of individuals with FAPA. ¹⁰ Accordingly, the trial court's ruling must be affirmed because there is no genuine issue of material fact that the phrase "future airline pilots" is descriptive in nature, and has not acquired any secondary meaning that would entitle it to protection under UDTPA, making AIR entitled to a judgment as a matter of law.

Judgment affirmed.

All the Justices concur, except CARLEY, J., who concurs specially.

CARLEY, Justice, concurring specially.

I concur in the majority's affirmance of the grant of partial summary judgment in favor of Aviation Information Resources, Inc. (AIR) on Future Professionals, Inc.'s (FAPA) claim under the Georgia Uniform Deceptive Trade Practices Act (Act). I cannot, however, agree with the majority that, in order to reach that result, the unanimous decision in Elite Personnel, Inc. v. Elite Personnel Services, Inc., 259 Ga. 192, 193(1), 378 S.E.2d 117 (1989) must be overruled.

This court always has been and should continue to be reluctant to overrule its prior unanimous decisions. Slowik v. Knorr, 222 Ga. 669, 671, 151 S.E.2d 726 (1966). This is especially true where the overruling of a previous decision is unnecessary. See, e.g., Gifford-Hill & Co., Inc. v. Harrison, 229 Ga. 260, 262, 191 S.E.2d 85 (1972); Drury v. State, 211 Ga. 888,...