An often overlooked Florida statutory claim that may be brought in relationship to (or independent of) a claim of trademark infringement, the Florida Deceptive and Unfair Trade Practices Act (known as “FDUPTA”), codified at Florida Statutes 501.201-.213, is a consumer protection statute that our Florida Infringement Attorneys routinely assert when there is some form of unconscionable, deceptive or unfair act (or practice) made in trade or in commerce. Unlike a Lanham Act claim that requires interstate commerce, a claim based in FDUPTA, need only occur within Florida or impact Florida based consumers.
Our Florida IP Attorneys often plead a claim rooted in FDUPTA in addition to allegations of trademark infringement under the Lanham Act and/or Florida common law. In order to establish a valid FDUPTA claim, our Florida Infringement Attorneys must plead three requisite elements under Gavron v. Weather Shield Manufacturing, Inc., 819 F. Supp. 2d 1297, 1301 (S.D. Fla. 2011), namely: (a) a deceptive act or unfair practice, (b) causation, and (c) actual damages.
FDUPTA was passed by the Florida State Legislature in 1973 to complement the Federal Trade Commission and is thus known as the ‘Little FTC Act.’ The Florida statue protects consumers by offering private remedies unavailable under the Federal scheme.
Our Florida intellectual property attorneys specialize in asserting, as well as defending, FDUPTA claims in both state and Federal Court. Moreover when our Florida IP Attorneys address infringement matters we often use FDUPTA to seek declaratory and injunctive relief, as well the award of damages. This is because FDUPTA is remedial in nature and designed to protect consumers. Becon Prop. Mgmt Inc. v. PNR, Inc., 890 So. 2d 274, 279 (Fla. 4th DCA 2004). One such benefit is how FDUPTA provides our Florida intellectual property attorneys the ability to seek recovery of attorneys fees, which are available under Florida Statute 501.2105, when successfully bringing and/or defending such claims.
Identifying a Deceptive or Unfair Practice
As one of the three elements required under the three-part Gavron test, a “deceptive practice” is one that is “likely to mislead” consumers. Davis v. Powertel, Inc., 776 So.2d 971, 974 (Fla. 1st DCA 2000). Unlike a “deceptive practice” which misleads consumers, the alternative “unfair practice” is “one that ‘offends established public policy’ and one that is ‘immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.'” Samuels v. King Motor Co. of Fort Lauderdale, 782 So. 2d 489, 499 (Fla. 4th DCA 2001) (quoting Spiegel Inc. v. Federal Trade Comm’n, 540 F.2d 2d 287, 293 (7th Cir. 1976).
A deceptive act occurs “if there is a representation, omission, or practice that is likely to mislead the consumer acting reasonably in the circumstances, to the consumer’s detriment. This standard requires a showing of probable, not possible, deception that is likely to cause injury to a reasonable relying consumer.” Zlotnick v. Premier Sales Grp., Inc. 480 F.3d 1281, 1284 (11th Cir. 2007). See also, Blair v. Wachovia Mortg. Corp., 2012 U.S. Dist. LEXIS 33941, at * 1 (M.D. Fla. Mar. 14, 2012) (citing Sundance Apartments I, Inc. v. General Elec. Capital Corp., 581 F. Supp. 2d 1215, 1220 (S.D. Fla. 2008).
Causation Element of FDUPTA
As to the second “causation” prong, someone asserting a FDUPTA claim must “contain allegation of causation connecting” the deceptive or unfair practice “to any alleged damages. Ferrara v. LCS Fin. Servs. Corp., 2015 U.S. Dist. LEXIS 1448, at * 7 (M.D. Fla. Jan. 7, 2015). Moreover, “causation must be direct, rather than remote or speculative.” Prunty v. Sibelius, 2014 U.S. Dist. LEXIS 166261, at * 13 (M.D. Fla. Nov. 20, 2014). As such, the FDUPTA claim must allege how a party is damaged based upon a deceptive trade practice and/or unfair trade practice.
Actual Damages Must be Alleged to assert FDUPTA
“[T]he measure of actual damages is the difference in the market value of the product or service in the condition in which it was delivered and its market value in the condition in which it should have been delivered according to the contract of the parties.[…] A notable exception to the rule may exist when the product is rendered valueless as a result of the defect-then the purchase price is the appropriate measure of actual damages.” Rollins, Inc. v. Heller, 454 So.2d 580, 585 (Fla. 3d DCA 1984) (quoting from Raye v. Fred Oakley Motors, Inc., 646 S.W.2d 288, 290 (Tex.App.1983)).
“[A]ctual damages” do not include consequential damages. See Boca Raton Lincoln Mercury, Inc. v. Corgnati, 715 So.2d 311, 314 (Fla. 4th DCA 1998). FDUTPA’s bar on the recovery of consequential damages precludes the recovery of, for example, the costs to repair a building resulting from a deficient inspection for termites. See Orkin Exterminating Co. v. Petsch, 872 So.2d 259, 263 (Fla. 2d DCA 2004); Urling v. Helms Exterminators, Inc.,468 So.2d 451, 454 (Fla. 1st DCA 1985). Similarly, the recovery afforded under FDUTPA does not include diminution in value or stigma damages caused by termite damage. See Orkin Exterminating Co. v. DelGuidice, 790 So.2d 1158, 1162 (Fla. 5th DCA 2001).