BUSINESS LITIGATION

The term 'unfair competition' refers to a type of business tort used to put a stop to deceptive and unethical commercial practices that might cause economic harm to other organizations. Examples of unfair competition include trademark infringement, false designation of origin, unfair, deceptive, misleading, or false advertising, the misappropriation of trademark secrets, fraud, counterfeiting, or libel. Often, the concept is thought of as applying to situations in which one business attempts to pass off its products, services, or identity as those of another business.
To prove a federal claim for unfair competition, false designation of origin, and false advertising under 15 U.S.C. §1125(a) one must show that they have a valid and legally protectable trademark. If the person has an unregistered trademark, then they must prove that the mark was used in interstate commerce, that they have prior rights to use the mark, and that the mark is distinctive, either inherently or through secondary meaning. Once the party proves the validity and ownership of their trademark, then the burden shifts to the other party to show by a preponderance of the evidence that the mark is not protectable.
Next the party claiming unfair competition must show that the mark or a similar mark was used without consent and that such use of the mark has caused a likelihood of confusion.
Proving a claim for unfair competition under California’s Unfair Competition Law at California Business & Professions Code §§ 17200 and 17500, et. seq. is somewhat similar to the federal claim. The person bringing the claim must demonstrate that the unfair business act or practice is either unlawful or unfair. To show it is unlawful, the party must show that is forbidden by law, and to show that it is unfair, the party must show that it is likely to deceive members of the public.
Common law unfair competition law in California requires the party asserting the claim to demonstrate that it invested substantial time, skill, or money in developing its property; that the other party appropriated and used the property at little or no cost; that the other party’s use or appropriation was without consent or authorization, and that the party asserting the claim was injured by the appropriation and use. Unfair competition is all about whether the public is likely to be deceived about the source of the goods or services.

To prove federal trade dress infringement, the party bringing the action must prove that it owns a valid and legally protectable trade dress trademark. Trade dress is a symbol or device, usually defined as the total image and overall appearance of a product, typically consisting of the packaging or the dressing of a product, including size, shape, color or color combinations, texture and graphics but may also include the design of a product as long as that design is non-functional. If the trade dress is not already federally registered, the party asserting a claim for trade dress infringement must show that he/she/it has used the trade dress in interstate commerce, that they have prior rights to the mark, and that the mark is distinctive either inherently or through acquired secondary meaning. Further, the party asserting the claim must demonstrate that the trade dress it seeks to protect is nonfunctional. Once the party proves the mark’s validity and its ownership, then the burden shifts to the other party to show by a preponderance of the evidence that the mark is not protectable, if possible. Beyond that, the party asserting the claim must show that its trade dress mark or a similar trade dress was used without their consent and that it has caused a likelihood of confusion.

Intentional interference with contractual relations is just what it sounds like. If someone intentionally interfered with a contractual relationship this business tort may arise. To make a claim for this business tort, one must prove that a valid contract existed and that the party who interfered knew of the contracts existence then interfered with the performance of the contract or made performance more expensive or difficult. The party must have actually intended to disrupt the contract or knew that disruption was substantially certain to occur. The party making the claim must have been harmed in some way and that harm must have been substantially caused by the conduct of the party who interfered with the contract.

The business torts of intentional and negligent interference with prospective business advantage are just what they sounds like. These business torts impose liability for improper methods, outside of fair competition, of disrupting or diverting a business relationship of another. To make a claim for these business torts, the party making the claim must prove that it had an economic relationship with another party that would have resulted in an economic benefit and that the party interfering knew that this relationship existed, but engaged in wrongful conduct that they either intended to disrupt the relationship or knew that the disruption of the relationship was certain or substantially certain to occur. The conduct must be independently wrongful, which means that it must be unlawful by some constitution, statutory, regulatory, common law, or other legal standard such as violations of federal or state law, or unethical business practices including but not limited to violence, misrepresentation, unfounded litigation, defamation, libel, slander, trade libel or trade mark infringement. Finally, the party asserting the claim must show that their relationship was in fact disrupted, that they were harmed, and that the harm was caused by the interfering party’s wrongful conduct.

Breach of confidence occurs when you have an agreement with someone to keep information confidential, then they disclose the confidential information to another without your authorization. You must first prove that you had such an agreement to keep the information confidential, then prove that the party you disclosed the information to disclosed the information to another party without your authorization. This obligation to keep things confidential is typically created by contract with a confidentiality clause or a non-disclosure agreement, however, the obligation can be created implicitly depending on the relationship of the parties. For example, joint venturers, partners, board of directors, principal and agents, and employer and employees typically have an obligation to keep certain information in confidence according to the California courts.

While many businesses suffer embezzlement, not all discovered cases are actually reported. Often, when terminating employees due to embezzlement, employers prefer not to cite the behavior that prompted the firing. In some circumstances, however, it is prudent to report embezzlement. For example, embezzlement may be reported to the IRS as non-employee compensation. Ultimately, given the potential repercussions that employers may face upon accusing employees of embezzlement, it is important to obtain legal counsel before seeking embezzlement-related civil damages or criminal repercussions.

Embezzlement — the act of stealing from an employer — can be both a civil and a criminal matter. When tried as a crime, embezzlement is typically handled at the state level, although federal proceedings may occasionally arise if the act involves stealing from a federal government agency or from a contractor paid by the federal government. In addition to suffering criminal penalties, the embezzler may be sued in civil court by the victim. Civil judgments may allow a successful plaintiff to secure damages by garnishing the embezzler's wages or placing a lien on his or her property.

Embezzlement is when someone who has been entrusted with personal property fraudulently takes the personal property. Embezzlement often refers to any act of theft in which an employee steals from an employer and most often is associated with the misappropriation of money. Typically, the employee who commits embezzlement has been placed in a position of trust. Examples of embezzlement could include stealing money from a cash register an employee has been asked to handle, stealing equipment such as a company vehicle, or falsifying payroll accounts. For a crime to be deemed embezzlement, the perpetrator must have acted intentionally to acquire property via his or her employee-employer relationship.

Business fraud can take many forms and can be devastating for companies across a variety of industries. Fraud is often instigated by employees, clients, and business partners. Fraud occurs when one party makes an intentional or negligent misrepresentation to another party ,and that party relied on that representation to their detriment. To prove fraud is very difficult. The party asserting the claim must show that the other party represented that a fact was true, but the representation was actually false and the party making the representation knew that it was false when they made it or they made the representation recklessly and without regard for its truth. Fraud gets very difficult to prove when the party asserting the claim must prove that the other party actually intended that they rely on the false representation because it is very difficult to prove someone’s intent. The party asserting the claim must then show that they relied on the misrepresentation, that they were harmed and that the harm was caused because they relied on the false representation. Similarly, promissory fraud, or false promise is when someone makes a promise that they do not intend to perform. It is common for a fraud cause of action to be plead in business contract dispute litigation because one party alleges that the other party induced them to enter into the contract by making misrepresentations. Payroll fraud is also of particular concern for small businesses, because employees may lie on timesheets, doctor payroll records, or change pay rates, or fail to reimburse employers for pay advances. Identity theft is increasingly common at the business level, with fraudsters using companies' identities to access credit. Money fraud involves counterfeit bills, which may only be discovered upon attempting to deposit cash. Asset misappropriation may involve check tampering or the skimming of accounts receivable.

It is generally possible for one partner to resign from a partnership at his or her own will. The ease of doing so, however, may depend on whether partners have entered into a limited or a general partnership. With a general partnership, it is relatively easy for one partner to leave at any time and for any reason. Conversely, resignation from a limited partnership may only be possible if the resigning partner abides by terms included in the original partnership agreement. Typically, partners must provide written notice before resigning from a partnership.