Monday, April 16, 2018

allowing TM to be used to describe a different entity could be literally false lawyer advertising

Rosenbaum & Associates, P.C. v. Morgan & Morgan, 2018 WL 1768050, No. 17-4250 (E.D. Pa. Apr. 12, 2018)

Rosenbaum sued various Morgan defendants for false advertising of personal injury lawyering services in Philadelphia.  Defendants started advertising Morgan & Morgan’s personal injury services in the Philadelphia market in December 2015, though no attorneys worked on personal injury matters for a Morgan & Morgan entity in a Philadelphia office. “At some point, an entity called Morgan & Morgan Philadelphia opened an office in Philadelphia but Morgan & Morgan PA denies it has an office in Philadelphia.”  In January 2017, Morgan & Morgan PA hired a relatively inexperienced Pennsylvania attorney as the only attorney in its Philadelphia office, but this allegedly merely occurred “to perpetuate the charade [all Morgan & Morgan entities] are handling personal injury claims for clients in the Philadelphia market.”

The disclaimer “it is not a referral service” was allegedly false or misleading because the Morgan & Morgan entities, in reality, refer all or nearly all of cases from Philadelphia clients to other law firms.  Billboard claims stating that “Morgan & Morgan” has “Offices Philadelphia” were allegedly false because Morgan & Morgan PA denies having an office in Philadelphia and instead states the separate entity Morgan & Morgan Philadelphia owns the Philadelphia office. Similarly, internet advertising that “ ‘[Morgan & Morgan’s] attorneys in our Philadelphia office handle cases in the following practice areas,’ referring to various types [of] personal injury claims, and identifying [Morgan & Morgan] as ‘Personal Injury Lawyers in Philadelphia’ ” were allegedly false for the same reasons.

The Morgan & Morgan entities and attorneys allegedly never intend to represent personal injury clients in the Philadelphia area but refers “all or substantially all” potential clients who contact Morgan & Morgan to another law firm for a referral fee.  The statements "I'm your lawyer,” “We’re all here for you,” and “You don’t pay us unless we’re successful” were sufficiently alleged to be literally false because Morgan & Morgan PA attorneys never represent, never are there for, or never are successful for Philadelphia based clients.

After discovery, Rosenbaum alleged additional statements are false or misleading and also sues other Morgan & Morgan entities and individuals.  The court refused “to examine each statement in a vacuum and strike Rosenbaum’s allegations about certain statements because those statements are not misleading in isolation…. The full factual record of summary judgement is the time to examine each advertisement in context and determine whether they are false or misleading instead of examining the statements in isolation based solely on allegations.”

Morgan & Morgan PA moved to dismiss as to new claims, arguing that billboards advertising “Morgan & Morgan Offices Philadelphia” weren’t literally false because “Morgan & Morgan” isn’t “Morgan & Morgan PA.”  The court disagreed; Rosenbaum alleged that the billboards in the Philadelphia area were literally false when they used the trade name “Morgan & Morgan” through the trademark owned by Morgan & Morgan Global to advertise an office in Philadelphia when Morgan & Morgan Global and Morgan & Morgan PA deny having an office in Philadelphia.

As for which defendants were responsible, Morgan & Morgan Global allegedly permitted its trademark “Morgan & Morgan” to be used in billboard ads stating Morgan & Morgan has an office in Philadelphia when allegedly neither Morgan & Morgan Global nor Morgan & Morgan PA had an office in Philadelphia. Allowing the trademark to be used in an ad with a literally false statement was sufficient to state a claim.

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