McHugh Fuller Law Group, PLLC v. PruittHealth, Inc.

In March 2015, McHugh Fuller Law Group, PLLC (“McHugh Fuller”) began running a month-long, statewide Georgia advertising campaign targeting PruittHealth, Inc. and its affiliated nursing homes (collectively, “PruittHealth”). PruittHealth filed suit against McHugh Fuller under Georgia’s trademark antidilution statute, OCGA § 10-1-451 (b), in the Superior Court of Colquitt County, and the trial court entered a permanent injunction prohibiting McHugh Fuller from running ads about PruittHealth that include the company’s trade names, service marks, or logos. As explained below, the single advertisement that PruittHealth challenges did not violate § 10-1-451 (b). Accordingly, we reverse the trial court’s injunction order.

On March 15, 2015, McHugh Fuller, a Mississippi law firm that focuses on suing nursing homes, ran the following full-page, color advertisement in the Sunday print and online editions of the Moultrie Observer newspaper as part of a month-long, statewide ad campaign targeting nursing homes affiliated with PruittHealth, Inc.

On March 31, 2015, PruittHealth filed a one-count complaint against McHugh Fuller for trademark dilution, seeking interlocutory and permanent injunctive relief under OCGA § 10-1-451 (b). PruittHealth also requested a temporary restraining order, which the trial court issued on the same day. On April 20, McHugh Fuller filed an answer raising First Amendment, fair use, and numerous other legal and factual defenses. On May 5, the trial court held a consolidated hearing on PruittHealth’s requests for interlocutory and permanent injunctive relief.

At the May 5, 2015 hearing, PruittHealth introduced copies of its trademark registrations with the United States Patent and Trademark Office, the Georgia Secretary of State, and Stephens County. Nick Williams, PruittHealth, Inc.’s chief development officer in charge of branding, testified that PruittHealth had made substantial investments in its marks, including engaging a national marketing firm, conducting focus groups, and obtaining feedback regarding their strength, and that the marks are used on billboards, in advertisements, on mouse pads and water bottles, and in a host of other marketing materials used by PruittHealth in Georgia and surrounding states. Williams further testified that McHugh Fuller’s March 2015 ad campaign, by associating PruittHealth’s marks with brightly colored words like death, tarnishes the marks and PruittHealth’s business reputation, noting that hospitals, the major referral source for nursing home patients, had contacted him personally for an explanation.

Vickie Patterson, the administrator of PruittHealth-Moultrie for 23 years, and Mirandus Ponder, a nursing aide and a lifelong resident of Moultrie, testified that in their view, the March 15 ad in the Moultrie Observer had harmed their facility’s reputation and identity in the community. Patterson said that she received multiple text messages about the ad on the day that it ran and that “[p]eople that see this ad that don’t know us would believe that we’re a bad facility.” Ponder said that she learned of the March 15 ad when she was in the checkout line at a grocery store and overheard a woman ask another woman if she had “read the advertisement of PruittHealth abusing their residents.” Ponder added, “I’m there, and I know that [patients are] being taken care of. And it just breaks my heart to have people thinking that that’s what’s going on.”

McHugh Fuller presented numerous exhibits and the testimony of Michael J. Fuller, one of the law firm’s two partners and the person listed in the March 15 ad as being responsible for its content. Fuller explained how his firm uses information from a federal government website, including annual nursing home survey results, staffing levels, and quality measures, to identify facilities that the firm believes are likely to have residents who have been injured through negligence. Fuller testified that since running ads targeting specific PruittHealth facilities in 2014, McHugh Fuller had received about 200 calls from potential clients, was engaged by roughly 50 clients, and filed about 11 negligence lawsuits against PruittHealth alleging that patients had suffered bedsores, broken bones, unexplained injuries, or death.

On June 1, 2015, the trial court entered the order on appeal.