Chapter 4165: DECEPTIVE TRADE PRACTICES

4165.01 Deceptive trade practices definitions.

As used in this chapter, unless the context otherwise requires:

(A) "Certification mark" means a mark used in connection with the goods or services of a person other than the certifier to indicate geographic origin, material, mode of manufacture, quality, accuracy, or other characteristics of the goods or services or to indicate that the work or labor on the goods or services was performed by members of a union or other organization.

(B) "Collective mark" means a mark used by members of a cooperative, association, or other collective group or organization to identify goods or services and distinguish them from those of others, or to indicate membership in the collective group or organization.

(C) "Mark" means a word, name, symbol, device, or combination of a word, name, symbol, or device in any form or arrangement.

(D) "Person" means an individual, corporation, government, governmental subdivision or agency, business trust, estate, trust, partnership, unincorporated association, limited liability company, two or more of any of the foregoing having a joint or common interest, or any other legal or commercial entity.

(E) "Service mark" means a mark used by a person to identify services and to distinguish them from the services of others.

(F) "Trademark" means a mark used by a person to identify goods and to distinguish them from the goods of others.

(G) "Trade name" means a word, name, symbol, device, or combination of a word, name, symbol, or device in any form or arrangement used by a person to identify the person's business, vocation, or occupation and distinguish it from the business, vocation, or occupation of others.

(H) "Directory assistance" means the disclosure by an operator or an automated service, upon request by an individual and that individual's identification of a telephone service subscriber in some manner, of telephone number information pertaining to the identified telephone service subscriber.

(I) "Local telephone directory" means a telephone classified advertising directory, or the business section of a telephone directory, that is distributed by a telephone company or a directory publisher to subscribers who are located in one or more local exchanges covered by the directory. "Local telephone directory" includes a telephone classified advertising directory, or the business section of a telephone directory, that includes listings of more than one telephone company.

(J) "Local telephone number" means a telephone number that has a three-number prefix that is used by a telephone company in connection with telephones that are physically located within an area covered by a local telephone directory in which the telephone number is listed. "Local telephone number" does not include long distance telephone numbers that are listed as long distance telephone numbers in a local telephone directory, or 800-, 888-, or 900- telephone numbers that are listed in a local telephone directory.

(K) "Telephone company" has the same meaning as in section 4905.402 of the Revised Code.

Effective Date: 03-30-1999

4165.02 Deceptive trade practice actions.

(A) A person engages in a deceptive trade practice when, in the course of the person's business, vocation, or occupation, the person does any of the following:

(1) Passes off goods or services as those of another;

(2) Causes likelihood of confusion or misunderstanding as to the source, sponsorship, approval, or certification of goods or services;

(3) Causes likelihood of confusion or misunderstanding as to affiliation, connection, or association with, or certification by, another;

(4) Uses deceptive representations or designations of geographic origin in connection with goods or services;

(5) Lists a fictitious business name in a local telephone directory that is published on or after the effective date of this amendment, in circumstances in which all of the following apply:

(a) The person's fictitious business name is not registered as a trade name with, or its use as a fictitious name has not been reported to, the secretary of state under sections 1329.01 to 1329.10 of the Revised Code.

(b) The person's listed fictitious business name misrepresents the geographic location of the person, because that name includes a reference to a political subdivision or another geographic area of this state, the person does not have business premises in that political subdivision or other geographic area from which the person sells, leases, rents, or otherwise provides particular goods or services in this state, and the person's use of that name causes a likelihood of confusion or misunderstanding by consumers as to the geographic location with which the consumers are dealing in the purchase, lease, rental, or other provision of, or will be dealing in the resolution of problems that may arise in connection with, particular goods or services.

(c) The local telephone directory listing of the person's fictitious business name does not identify the political subdivision and, if the person is not located in this state, the state in which are located the person's business premises with which consumers are dealing in the purchase, lease, rental, or other provision of, or will be dealing in the resolution of problems that may arise in connection with, particular goods or services.

(d) Telephone calls to the local telephone number listed for the person's fictitious business name routinely are forwarded or otherwise transferred to business premises of the person that are located outside the calling area covered by the local telephone directory.

(6) Lists a fictitious business name in a directory assistance database on or after the effective date of this amendment, the circumstances described in divisions (A)(5)(a) and (b) of this section apply regarding the person's listed fictitious business name, and telephone calls to the local telephone number listed for the person's fictitious business name routinely are forwarded or otherwise transferred to business premises of the person that are located outside the local calling area;

(7) Represents that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation, or connection that the person does not have;

(8) Represents that goods are original or new if they are deteriorated, altered, reconditioned, reclaimed, used, or secondhand;

(9) Represents that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another;

(10) Disparages the goods, services, or business of another by false representation of fact;

(11) Advertises goods or services with intent not to sell them as advertised;

(12) Makes false statements of fact concerning the reasons for, existence of, or amounts of price reductions;

(13) Advertises goods or services with intent not to supply reasonably expectable public demand, unless the advertisement discloses a limitation of quantity.

(B) In order to prevail in a civil action under section 4165.03 of the Revised Code that seeks injunctive relief or an award of damages and that is based on one or more deceptive trade practices listed in division (A) of this section, a complainant need not prove competition between the parties to the civil action.

(C) This section does not affect unfair trade practices that are otherwise actionable at common law or under other sections of the Revised Code.

(D) A telephone company, provider of directory assistance, publisher of a local telephone directory, or officer, employee, or agent of the company, provider, or publisher shall not be liable in a civil action under section 4165.03 of the Revised Code for publishing in any directory or directory assistance database the listing of a fictitious business name of a person who commits a deceptive trade practice that is listed in division (A) of this section unless the telephone company, provider of directory assistance, publisher of a local telephone directory, or officer, employee, or agent of the company, provider, or publisher is the person who committed the deceptive trade practice listed in division (A) of this section.

Effective Date: 03-30-1999

4165.03 Injunctive relief.

(A)

(1) A person who is likely to be damaged by a person who commits a deceptive trade practice that is listed in division (A) of section 4165.02 of the Revised Code may commence a civil action for injunctive relief against the other person, and the court of common pleas involved in that action may grant injunctive relief based on the principles of equity and on the terms that the court considers reasonable. Proof of monetary damage or loss of profits is not required in a civil action commenced under division (A)(1) of this section.

(2) A person who is injured by a person who commits a deceptive trade practice that is listed in division (A) of section 4165.02 of the Revised Code may commence a civil action to recover actual damages from the person who commits the deceptive trade practice.

(B) The court may award in accordance with this division reasonable attorney's fees to the prevailing party in either type of civil action authorized by division (A) of this section. an award of attorney's fees may be assessed against a plaintiff if the court finds that the plaintiff knew the action to be groundless. An award of attorney's fees may be assessed against a defendant if the court finds that the defendant has willfully engaged in a trade practice listed in division (A) of section 4165.02 of the Revised Code knowing it to be deceptive.

(C) The civil relief provided in this section is in addition to civil or criminal remedies otherwise available against the same conduct under the common law or other sections of the Revised Code.

Effective Date: 03-30-1999

4165.04 Exceptions.

(A) This chapter does not apply to either of the following:

(1) Conduct that is in compliance with the orders or rules of, or a statute administered by, a federal, state, or local governmental agency;

(2) Publishers, broadcasters, printers, or other persons who are engaged in the dissemination of information or reproduction of printed or pictorial matter and who publish, broadcast, or reproduce material without knowledge of its deceptive character.

(B) Divisions (A)(2) and (3) of section 4165.02 of the Revised Code do not apply to the use of a service mark, trademark, certification mark, collective mark, trade name, or other trade identification that was used and not abandoned before September 25, 1969, if the use was in good faith and otherwise is lawful except for this chapter.

Effective Date: 03-30-1999