United States: Fox Team Successfully Obtains Complete Defense Victory In Unfair Competition Case
Last Updated: April 13 2015

Fox Rothschild LLP attorneys Brett L. Myers and Andy Nikolopoulos recently obtained a complete defense verdict in an unfair competition lawsuit in the Western District of Texas on behalf of Visual Communication Services (VCS), a Texas-based company that offers interpreting and sign language services for the hearing impaired.

The plaintiff, Deaf Interpreter Services, an established business in San Antonio and a direct competitor to VCS, brought action under the Lanham Act and alleged unfair competition due to the fact that VCS had used the words "deaf interpreter services" in its company website metadata as well as the fact that VCS registered a domain name containing those same words.  

The plaintiff not only sought damages in the form of VCS' profits over a multiyear period, which exceeded $4 million, and attorney's fees in excess of $400,000, but more importantly, it sought an injunction prohibiting VCS from using "deaf interpreter services" in any manner.  The effect of such an injunction would have been to arm the plaintiff with a protectable name and the ability to shut down other similar businesses nationwide that use these words to describe the services they provide.  

In a week-long jury trial, presided over by visiting Judge Royce Lamberth from the District of Columbia, the Fox team argued that the mark "Deaf Interpreter Services" was not worthy of protection in that it was a generic term for the services provided in the industry.  The plaintiff, however, argued that the mark had acquired secondary meaning in the industry such that it was a protectable mark under the Lanham Act.  After the close of evidence, the court granted a Judgment as Matter of Law on the issue of attorney's fees, holding that this was not an "exceptional case" under the Lanham Act.  

The jury returned a verdict that the mark in question was generic and therefore not worthy of protection under the law.  As a result, the jury did not even consider the questions on unfair competition and damages, thereby handing VCS a complete defense victory.  

Myers, a partner with the firm, is Board Certified by the Texas Board of Legal Specialization in both Civil Trial Law and Labor and Employment Law. He routinely guides businesses through a variety of matters, including, employment contracts, noncompetition agreements, wage and hour disputes, employment policies, protection of proprietary information and trade secrets, investigation of employee misconduct, and risk avoidance practices. Additionally, he has experience with intellectual property and real estate litigation and appellate matters.

Nikolopoulos, an associate with Fox, represents both plaintiffs and defendants in state and federal courts, as well as arbitrations. He represents clients in various intellectual property matters, including, trademark, copyright, trade secrets and unfair competition.

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