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Should I check "Intellectual property" or "Business tort/Unfair business practices" on the Civil Cover Sheet?

Bakersfield, CA |

I am suing a competing business for unfair competition. Because the conflict started with infringement of my copyright, I would like to ask for statutory damages. But my competitor tried to make me give up my copyright claim by bullying other illegal tactics (such as a false customer review).

The civil cover sheet requires me to choose one reason for the lawsuit. As copyright infringement is also considered unfair competition, should I just check "Business tort/unfair business practices" with copyright infringement as a cause of action?

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Attorney answers 5

Posted

Without reading the complaint, it would be difficult for us to opine on this question. However, the civil cover sheet does not control much; the text of the complaint does. If you think that it is more unfair competition, then go with that. I've never known anyone disadvantaged because of what the civil case cover sheet says.
However, you need to seriously consider getting a lawyer to help you. If this question flummoxes you, then there are many, many more that are going to affect your lawsuit even more. I know that it seems that every time someone representing himself asks a lawyer a question, the response starts with "first, you should get your own lawyer . . ." but there is a reason for that. Your own lawyer would be the best to answer that.

www.bayoaklaw.com. 510-208-5500. This answer does not create an attorney-client relationship. It is not legal advice, because it is only of a general nature. Please contact a lawyer qualified in your jurisdiction to discuss your situation in confidence, using your factual details. Avvo answers are only general legal responses. Item 9 of Avvo.com's Terms and Conditions are incorporated in this disclaimer as though it were printed here.

Bruce E. Burdick

Bruce E. Burdick

Posted

Huh? Why would you recommend going with "unfair competition" in state court for a copyright claim? She needs to be in USDC. I think she WOULD be disadvantaged by using a state court civil cover sheet since that means she intends to file in the wrong court which if pursued will mean no copyright claim.

Andrew Kevin Jacobson

Andrew Kevin Jacobson

Posted

Having checked the federal civil case cover sheet, there is nothing for "Business tort/unfair business practices" but there is for 820 Copyright, 830 Patent, 840 Trademark, and 410 Antitrust. Thus, it seems like you are filing in California state court, and state courts do not have jurisdiction over copyright claims. (The same is true for patent claims.) This further emphasizes the point that you need to get a lawyer on your side.

Posted

Your question is not clear. "Bullying tactics" os a false customer review made you give up your copyright claim?
Statutory damages are for statutory claims. Copyright infringement is a statutory claim. Unfair business practices do not have statutory damages.

If you are suing for copyright, then check copyright. I think you should hire an attorney to help you as a lawsuit is not something that is easily accomplished. (and lawsuits should be the last resort, after formal requests in writing asking for resolution are attempted, etc.) The costs often exceed the potential benefits and an attorney can often help you settle the matter without going to court.

Many of us here on AVVO offer a free initial consultation. I strongly urge you to contact myself or another copyright attorney to discuss before you file the lawsuit.

Good luck.

My disclaimer is simply that Avvo already has an adequate disclaimer.

Bruce E. Burdick

Bruce E. Burdick

Posted

Tell me how she is going to "check copyright" on a state court civil cover sheet. She is in the wrong court. She needs to be in USDC and need to hire an attorney so this does not get more messed.

Posted

You are hopelessly in over your head. You are apparently preparing to file a complaint in a California state court [using Form CM-010]. State court's do not, however, have jurisdiction to adjudicate copyright infringement claims - those claims must be filed in a federal court. And no, copyright infringement is NOT also considered unfair competition. Moreover, only businesses run as sole proprietorships may be represented in court by the owner of the business --- all other types of businesses MUST be represented by an attorney. You need to speak with an intellectual property attorney before you make the situation you're in much, much worse.

The above is general information ONLY and is not legal advice, does not form an attorney-client relationship, and should NOT be relied upon to take or refrain from taking any action. I am not your attorney. You should seek the advice of competent counsel before taking any action related to your inquiry.

Bruce E. Burdick

Bruce E. Burdick

Posted

Asker, you picked the wrong Best Answer. This is the one you need to read and follow.

John Joseph Westerhaus

John Joseph Westerhaus

Posted

Agreed, this answer is excellent and right on the money. The answer that the asker picked as "best" is, in fact, not.

Posted

This sounds like trouble and highlights the foolishness of not using an attorney and of trying to use Avvo as a recipe to avoid hiring an attorney.

If you are suing in CA state court, you don't have a copyright claim, as you are in the wrong court. You can't get statutory copyright damages in state court. For both, you need to be in US District Court. Frankly, it sounds like you have a fool for a lawyer and your lawyer has a fool for a client (both you.) See an IP litigator before you screw this up so bad you can't recover.

Federal copyright claims are NOT state unfair competition claims and not state torts.

You should not check either box on the civil court sheet, you should pitch it in the trash and get to an IP litigator's office.

I am not your lawyer and you are not my client. Free advice here is without recourse and any reliance thereupon is at your sole risk. This is done without compensation as a free public service. I am licensed in IL, MO, TX and I am a Reg. Pat. Atty. so advice in any other jurisdiction is strictly general advice and should be confirmed with an attorney licensed in that jurisdiction.

John Joseph Westerhaus

John Joseph Westerhaus

Posted

(as is yours). I think sometimes askers think it's disrespectful to tell them that they're making a mistake and that they need expert help. I don't understand why that is -- the truth is the truth is the truth, and you speak it quite often and eloquently.

Posted

"Because the [unfair competition] conflict started with infringement of my copyright, I would like to ask for statutory damages." Please note that a federal copyright registration is required to obtain statutory damages for copyright infringement. It would be separate from an unfair competition claim.

If you are asserting a claim under California's UCL (Section 17200), then you should review Kwikset v. Superior Court, 51 Cal. 4th 310 (2011); Clayworth v. Pfizer, 49 Cal. 4th 758 (2010); Saunders v. Superior Court, 27 Cal.App.4th 832 (1994); Allergan, Inc. v. Athena Cosmetics, Inc., 640 F.3d 1377 (Fed. Cir. 2011); and Pom Wonderful LLC v. Coca-Cola Co., 679 F.3d 1170 (9th Cir. 2012); if you have not already done so.

This answer is for informational purposes only. It is not intended as specific legal advice regarding your question. The answer could be different if all of the facts were known. This answer does not establish an attorney-client relationship.

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