Archive for January, 2008

Georgia Eliminates Benefits Offsets in Uninsured Motorist Cases

Many insurance policies provide benefits to people injured when the driver who is at fault is uninsured or underinsured. Previously, Georgia courts permitted payments made under an uninsured motorist policy to be offset by other benefits and payments such as workers’ compensation, disability benefits and property insurance.  The underlying principle was to avoid duplicate payments.  However, the Supreme Court of Georgia has now declared in Dees v. Logan that an award for damages in such a case may no longer be offset by these other benefits paid to the insured, specifically workers’ compensation and disability benefits. 

The Georgia Code was amended in 2006 to require that all automobile liability insurance policies include “an endorsement or provisions undertaking to pay the insured damages for bodily injury, loss of consortium or death of an insured or for injury to or destruction of property of an insured under the named insured’s policy sustained from the owner or operator of an uninsured motor vehicle . . . .”  In Dees, the Georgia Supreme Court determined that the new statute does not indicate that the state legislature intended for there to be a setoff. The insurance company argued that a provision in the Dees’ uninsured motorist policy allowed offset of the jury award for workers’ compensation benefits, social security benefits, and a pretrial settlement with the vehicle owner’s insurer given to the Dees.  The Court – focusing its reasoning on the workers’ compensation setoff provision – rejected this argument, explaining that the new insurance statute found at O.G.G.A. § 33-7-11(i) specifically permits offsets for compensation received for property loss, but is silent as to setoffs for personal injury.  The Court stated that if the legislature wanted to permit such setoffs, it should have specifically included them in the text of the statute. The Court continued by noting that an insurance policy provision that directly conflicts with the intent of a state statute, as here, is unenforceable as against public policy.  Denying arguments that the Dees were recovering twice, the Court instead reasoned that they were receiving what they were due from the owner of the uninsured vehicle and the benefits to which they were otherwise entitled. 

Look for the Georgia General Assembly to take this issue up in the current session.

For more information, please contact Tim Buckley at (404) 633-9230.

Community Service Act Does Not Waive Sovereign Immunity

Under the Georgia Constitution, counties are immune from lawsuits unless waived by statute. So when Vincent Currid’s estate filed suit against DeKalb State Court Probation Department, DeKalb County defended the suit on sovereign immunity grounds.  Plaintiff alleged that the Department was liable under the Community Service Act for gross negligence, recklessness, and willful indifference to Mr. Currid’s safety when he died after falling from the back of a DeKalb County sanitation truck while fulfilling community service.  Plaintiff asked the Court to recognize an implicit waiver in the Community Service Act to comport with the policy that a county is not protected by sovereign immunity when it acts willfully or wantonly.  The Court of Appeals rejected Plaintiff’s plea, reiterating that constitutional sovereign immunity is only waived by explicit language in a statute and finding no such language in the Community Service Act.  DeKalb State Court Probation Dept. v. Currid, A07A1123 (9/26/2007).

For more information, please contact Tim Buckley at (404) 633-9230.

Trademarks/Service Marks for Your Business

Trademarks or service marks allow people to identify the source of goods (trademarks) or serv­ices (service marks), not the products or services themselves. When people see your trademark, they will know where the product came from or who is providing the service. Trademarks can be names, symbols, packaging, the shape of a product, the colors of a product, the sounds, or scents associated with the product, or any combina­tion of these. If a customer can identify the source of a product or service based on the trademark, then you have developed “secondary meaning” and have a strong trademark. To promote, protect, and keep your business from being con­fused with another, you should consider establishing a trademark for your busi­ness. Once you establish a trademark, you should vigorously defend it. Then, no one in your line of business can use your trademark.

A trademark cannot be a generic name, such as “photography.” It’s harder to get the rights to a trademark that is merely descriptive, referencing a component of the product, such as “portrait photography.” But if you can demonstrate second­ary meaning for the mark, then you get registration rights for it. The next level of a trademark is a suggestive mark that requires a “leap of imagination,” such as “Portrayals.” An arbitrary trademark is an existing word that has no relation to the goods or service, such as “Silver Photography” (as long as you are not selling pictures of silver and silver is not your name). Fanciful marks are coined terms with no prior meaning, made up for use as a trademark, such as “Kixxy Photography.”

Rights to use a trademark come from using the mark in commerce with the prod­uct or service. You may use the ™ symbol immediately with your trademark, but you may only use the ® symbol after federally registering the trademark.

Since trade and service mark rights are based on actual use in commerce and priority rights are based on time and geography, not everyone registers marks since it is not required.  This means that when you apply for a trademark, you may wish to first conduct a “trademark search.”  A thorough trademark search includes phone books, newspapers, the internet, state company trade name registrations, the U.S. Patent and Trademark Office (“USPTO”), and other sources.  The results of such a search are several hundred pages of analyses of similar words and/or graphic representations of the marks from the U.S. including many that may not be registered but may have prior rights in the mark.

A trademark search is not a requirement of registration but if you choose to apply without one, you are taking two risks:

     1.     the USPTO may reject your mark due to pending applications not yet updated in the USPTO database or because of the USPTO’s own national search for the mark; and

     2.     even if your company obtains permission for proceeding with the application from the USPTO, another party may claim prior use of the mark during the application process (called “opposition”) or after you receive registration and contest your rights to use the mark due to their prior use.

Therefore, it you intend to invest large sums of money in brands recognition, corresponding domain names or company name recognition, a full search rather than a lesser search is the smart choice.  Alternatively, if you are not particularly attached to the trademark, are willing to change it in the future if necessary and want to take the risk by saving money early on, skipping a search may be more in line with your business goals.

For more information, please contact Carolyn E. Wright at (404) 633-9230.

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