Justice David Nahmias (John Disney/Daily Report)
The Georgia Supreme Court ruled Monday that a personal injury law firm can target a specific defendant in advertising for new clients.
Justice David Nahmias delivered a victory for McHugh Fuller Law Group of Hattiesburg, Miss., writing a unanimous opinion reversing Colquitt County Superior Court Judge Richard Cowart’s permanent injunction against all advertising targeting nursing homes run by PruittHealth Inc.
The dispute was over a full-page color advertisement the law firm ran for a month in the Moultrie Observer starting in March 2015. Nahmias included a copy of the ad on page two of his opinion. At the top is a photo of the nursing home and its sign before it changed its name from UniHealth. The headline said, “Attention!” The copy said the law firm is “currently accepting cases against PruittHealth-Moultrie (formerly known as UniHealth Post-Acute Care-Moultrie) for resident care related issues.” The ad suggested contacting the law firm “if you suspect that a loved one was neglected or abused at PruittHealth–Moultrie.” The nursing home company, which runs facilities across Georgia, took issue with the all capital, boldface and in some instances red type used for key words: attention, neglected, abused, bedsores, broken bones, unexplained injuries, death.
Nahmias ruled against the nursing home’s use of the Georgia trademark anti-dilution statute to challenge the advertising saying it tarnished the brand. The ad, Nahmias said, did not violate the law against using a trademark in a confusing, unwholesome or degrading way.
“Not every unwelcome use of one’s trademark in the advertising of another provides a basis for a tarnishment claim,” Nahmias wrote. He said the law firm was using the nursing home logo in a descriptive manner and “counting on the public to identify” the facility.
“The ad did not attempt to link PruittHealth’s marks directly to McHugh Fuller’s own goods or services,” Nahmias wrote. “McHugh Fuller was advertising what it sells – legal services, which are neither unwholesome nor degrading – under its own trade name, service mark, and logo, each of which appears in the challenged ad.”
Nahmias went on to say that no one reading the ad “would think that McHugh Fuller was doing anything other than identifying a health care facility that the law firm was willing to sue over its treatment of patients.”
Nahmias added, “In short, the ad very clearly was an ad for a law firm and nothing more.”
“I personally think the court got it right,” said Charles Peeler of Flynn Peeler & Phillips in Albany, who represented the law firm at oral arguments in April. “To me as a trademark litigator, it’s interesting that it really is an issue of first impression. The courts have never been asked to construe a dilution statute in this manner.”
If it had stood, the injunction could have been applied statewide to protect the nursing home company, which has been sued by the same law firm elsewhere. This ad alone has resulted in 11 lawsuits being filed already, Nahmias wrote.
Jason Bring of Arnall Golden Gregory represented the nursing home company at oral arguments. Bring couldn’t be reached.
The case is McHugh Fuller Law Group v. PruittHealth, No. S16A0655.