Eckles v. Atlanta Technology Group, Inc.

485 S.E.2d 22, 267 Ga. 801, 97 Fulton County D. Rep. 1239, 1997 Ga. LEXIS 105
CourtSupreme Court of Georgia
DecidedApril 4, 1997
DocketS96A1507
StatusPublished
Cited by110 cases

This text of 485 S.E.2d 22 (Eckles v. Atlanta Technology Group, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Eckles v. Atlanta Technology Group, Inc., 485 S.E.2d 22, 267 Ga. 801, 97 Fulton County D. Rep. 1239, 1997 Ga. LEXIS 105 (Ga. 1997).

Opinions

Carley, Justice.

In 1990, Andrew Jackson Eckles began operating a sole proprietorship under the unregistered trade name “Atlanta Technology [802]*802Group” (“ATG”). In the years that followed, Eckles devoted all of his time and resources to the development of his business, which has continuously used the trade name “ATG.” In May 1994, Eckles received several telephone calls from confused customers who informed him that Atlanta Technology Group, Inc. (ATGI), which had been incorporated in Delaware in 1993, also was using the trade name “ATG.” Concerned about the likelihood of name confusion and its undesirable consequences, Eckles contacted an officer of ATGI and informed him that ATGI was infringing on his trade name. When Eckles was unsuccessful in his efforts to reach a compromise, he filed this action seeking an interlocutory and permanent injunction prohibiting ATGI from using “ATG” for trade or business purposes. After conducting a hearing, the trial court entered an order holding that ATGI’s use of the trade name “ATG” did not infringe upon Eckles’ use thereof. From that order, Eckles brings this appeal.

1. As a general rule, geographical names and descriptive words are incapable of appropriation as a trade name. Womble v. Parker, 208 Ga. 378 (1) (67 SE2d 133) (1951). However, when a business entity’s use of such words causes the public to understand that the goods or services of that business entity are designated thereby, then those words do acquire a secondary meaning which is protected under the law. Future Professionals v. Darby, 266 Ga. 690, 692 (3) (470 SE2d 644) (1996); Giant Mart Corp. v. Giant Discount Foods, 247 Ga. 775, 776 (279 SE2d 683) (1981); Womble v. Parker, supra. Under the undisputed evidence of record, Eckles’ use of “ATG” over the years has caused that name to become closely associated with his products and services and “ATG” is now understood by the public to designate his products and services. Therefore, it is undisputed that “ATG,” although descriptive, has acquired secondary meaning as a trade name pertaining to Eckles’ goods and services.

In Georgia, a trade name is protected by the common law and by several statutes. One of those statutes is the Uniform Deceptive Trade Practices Act (UDTPA), which provides protection to a trade name when another’s use of the same or similar name “[clauses [a] likelihood of confusion or of misunderstanding as to the source, sponsorship, approval, or certification of goods or services.” OCGA § 10-1-372 (a) (2). For Eckles to obtain relief under UDTPA, he was not required to show that he suffered monetary damages or that ATGI intended to cause confusion or misunderstanding to the public. OCGA § 10-1-373. Moreover, protection would not be dependent upon Eckles’ registration of “ATG” as his trade name, since “ ‘all that is required (for relief under UDTPA) is that the use of a name cause confusion to others (who are) using reasonable care.’ ” Future Professionals v. Darby, supra at 691 (2). The undisputed evidence of record establishes that ATGI’s use of “ATG” has caused confusion and mis[803]*803understanding on the part of the public. On more than one occasion, customers have misdirected their inquiries and legal documents have been misserved. Accordingly, based upon the unrefuted evidence of record, it is clear that Eckles is entitled to injunctive relief under UDTPA and that the trial court’s contrary ruling is erroneous and must be reversed.

2. ATGI has been represented in this case by one of its corporate officers who is not a licensed attorney. Because this Court has not previously determined whether it is permissible for a corporation to have as its legal representative an individual who is not licensed to practice law in the courts of this state, we take this occasion to address that issue.

A corporation is a “person.” OCGA § 1-3-3 (14). Because it is a “person,” a corporation certainly is entitled to receive due process and equal protection from this state. Caldwell v. Hosp. Auth. of Charlton County, 248 Ga. 887, 888 (1) (287 SE2d 15) (1982). Art. I, Sec. I, Par. XII of the Ga. Const, of 1983 also provides that “[n]o person shall be deprived of the right to prosecute or defend, either in person or by an attorney, that person’s own cause in any of the courts of this state.” Accordingly, if a corporation were also a “person” with the capability of representing its “own cause,” then that corporate entity could avail itself of this constitutional right to self-representation without regard to its own lack of a license to practice law. However, a corporation is an artificial, not a natural, person. As an artificial person, a corporation “can act, and does act, alone through agents. It deals with other corporations and with natural persons by its agents; it can deal with the world in no other way.” Scofield Rolling Mill Co. v. State of Ga., 54 Ga. 635, 639 (1) (1875). For this reason, it has long been recognized by the courts of other jurisdictions that “[a] corporation . . . can appear only by attorney, while a natural person may appear for himself.” Osborn v. United States Bank, 22 U. S. (9 Wheat.) 738, 830 (6 LE 204) (1824). Not only has this principle long been recognized, it has been almost universally accepted. See Anno., 8 ALR5th 653. Thus, notwithstanding that a corporation is a “person” for the purpose of receiving due process and equal protection from the state, it has been held that a corporation is not a “person” for the purpose of exercising a constitutional right to legal self-representation, since it cannot represent itself and can only be represented by its agents. See Ex parte Lamberth, 5 S2d 622 (Ala. 1942). As a very limited exception to this general rule, most states allow a layman to serve as a corporation’s legal representative in proceedings before courts which are not of record. See Anno., 8 ALR5th 653, 689, § 5[a]; 9A Fletcher Cyc. Corp., § 4463.20. The rationale for recognizing this exception to the general rule is that those problems which are likely to arise when a layman serves as the legal [804]*804representative for a corporation in a proceeding in a court of record are greatly minimized in the more informal setting of a proceeding in a court which is not of record. Oahu Plumbing &c. v. Kona Constr., 590 P2d 570, 575 (Haw. 1979).

Even though the principle that a corporation must have a licensed attorney as its legal representative in a proceeding in a court of record has long been recognized and almost universally accepted, there are cases from our Court of Appeals which reach a contrary result. Universal Scientific v. Wolf, 165 Ga. App. 752 (302 SE2d 616) (1983); Knickerbocker Tax Systems v. Texaco, Inc., 130 Ga. App. 383 (203 SE2d 290) (1973); Dixon v. Reliable Loans, 112 Ga. App. 618 (145 SE2d 771) (1965). However, all of these Court of Appeals cases are based upon statutory provisions. Contrary to the rationale of these cases, no statute is controlling as to the civil regulation of the practice of law in this state. Only this Court has the inherent power to govern the practice of law in Georgia.

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Bluebook (online)
485 S.E.2d 22, 267 Ga. 801, 97 Fulton County D. Rep. 1239, 1997 Ga. LEXIS 105, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eckles-v-atlanta-technology-group-inc-ga-1997.