§ 87-303 — Deceptive trade practices; damages; injunction; costs; additional remedy

Nebraska § 87-303

• Jurisdiction: Nebraska
• Ch. 87: Trade Practices

Text

(a) A person likely to be damaged by a deceptive trade practice of another may bring an action for, and the court may grant, an injunction under the principles of equity against the person committing the deceptive trade practice. The court may order such additional equitable relief as it deems necessary to protect the public from further violations, including temporary and permanent injunctive relief. Proof of monetary damage, loss of profits, or intent to deceive is not required. Relief granted for the copying of an article shall be limited to the prevention of confusion or misunderstanding as to source.
(b) Costs shall be allowed to the prevailing party unless the court otherwise directs. The court in its discretion may award attorneys' fees to the prevailing party if (1) the party complaining of a deceptive trade practice has brought an action which he or she knew to be groundless or (2) the party charged with a deceptive trade practice has willfully engaged in the trade practice knowing it to be deceptive.
(c) A claim filed for a violation of the Uniform Deceptive Trade Practices Act shall be proved by a preponderance of the evidence.
(d) The relief provided in this section is in addition to remedies otherwise available against the same conduct under the common law or other statutes of this state.
(e) Subdivision (a)(13) of section 87-302 shall not be construed to authorize a civil action against an interactive computer service, provider of telecommunications service, or cable operator for the actions of an information content provider.

Legislative History

Source: Laws 1969, c. 855, § 3, p. 3223; Laws 2010, LB801, § 3; Laws 2016, LB835, § 26. Annotations: Requiring Denali Custom Builders, Inc., to remove the name "Denali" from any registration of its corporate name or trade name with the Nebraska Secretary of State was equitable relief necessary to grant complete relief to the prevailing party. Denali Real Estate v. Denali Custom Builders, 302 Neb. 984, 926 N.W.2d 610 (2019). Ticket seller was not a "prevailing party," as would support award of attorney fees under Nebraska's Consumer Protection Act and Uniform Deceptive Trade Practices Act following dismissal of the State's consumer protection suit where the State chose to voluntarily dismiss its claims before any judicial determination could be made as to their merits. State ex rel. Peterson v. Creative Comm. Promotions, 302 Neb. 606, 924 N.W.2d 664 (2019). Portion of order enjoining violator from ever disseminating advertising using competitor's name is deprivation of due process. Kirsch Fabric Corp. v. Brookstein Enterprises, Inc., 209 Neb. 666, 309 N.W.2d 328 (1981). Nebraska's Uniform Deceptive Trade Practices Act does not permit an injunction to prevent the copying of a product. Gengenbach v. Hawkins Mfg., 18 Neb. App. 488, 785 N.W.2d 853 (2010). Under Nebraska's Uniform Deceptive Trade Practices Act, injunctive relief granted for the copying of an article is limited to the prevention of confusion or misunderstanding as to the source. Gengenbach v. Hawkins Mfg., 18 Neb. App. 488, 785 N.W.2d 853 (2010). By its own terms, subsection (a) of this section provides only for equitable relief consistent with general principles of equity. Reinbrecht v. Walgreen Co., 16 Neb. App. 108, 742 N.W.2d 243 (2007). The Uniform Deceptive Trade Practices Act, specifically this section, does not provide a private right of action for damages. Reinbrecht v. Walgreen Co., 16 Neb. App. 108, 742 N.W.2d 243 (2007). Company found to have committed unfair competition in use of trademark was not liable for attorney's fees in infringement action where activities were not willfully improper with knowledge they were deceptive but acted in colorable theory it had right to use trademark. Wrist-Rocket Manuf. Co., Inc. v. Saunders, 379 F.Supp. 902 (D. Neb. 1974).