An injunction that prevents Lowcountry attorney George Sink Jr. from using his birth name to advertise his new law firm will remain in place after a federal judge reiterated that his father, George Sink Sr., was likely to succeed in his effort to block his son from using the name in marketing the firm and determined that the injunction did not violate the state’s Rules of Professional Conduct.
Sink Sr. founded George Sink, P.A. Injury Lawyers in 1997, and since then, the firm has become well-known as a personal injury firm operating around South Carolina and Georgia. Sink Jr. worked at the firm as an attorney for about a year until his employment was terminated in February 2019. That same month, he founded his own firm, which he called George Sink Law Firm II. Sink Sr. sued, alleging that the use of the name constituted unfair competition, cybersquatting, unfair and deceptive trade practices, and dilution.
In August, U.S. District Judge David Norton granted Sink Sr.’s motion for a preliminary injunction to block Sink Jr. from using the name to market his firm until the dispute is resolved in arbitration. Sink Jr. asked Norton to stay in the injunction while he appeals that ruling to the 4th U.S. Circuit Court of Appeals. Among other things, Sink Jr. argued that the injunction was contrary to the public interest because it restricted his ability to practice law in violation of South Carolina Rule of Professional Conduct 5.6.
But in a Nov. 26 opinion, Norton said that argument didn’t hold water because the rule Sink Jr. cited was irrelevant to the issues in the case.
“A cursory reading of Rule 5.6 reveals that it applies to ‘agreements’ into which lawyers are restricted from entering. The rule applies to contracts between private parties that restrict a lawyer’s ability to practice law,” Norton wrote. “It does not apply to court orders, and it is certainly not violated by the court’s preliminary injunction. At best, Rule 5.6 reflects a public policy against cumbersome non-compete agreements between lawyers. It has nothing to say about the public policy of an injunction that restricts a lawyer’s ability to commit trademark infringement.”
Nein, nein, nein
Norton also appeared to betray more than a bit of exasperation in reminding Sink Jr. that the injunction did not, in fact, impede his ability to practice law.
“Sink Jr. may continue to practice law under his birth name throughout the life of the preliminary injunction. The preliminary injunction merely enjoins him from using plaintiff’s trademark in a way that is likely to confuse consumers. Lawyers are not immune from intellectual property law because it restrains the manner in which they may advertise and market their services. Sink Jr., like other businesspeople, may not reap the profits of goodwill cultivated by others. His status as an attorney does not change this core concept of trademark law,” Norton wrote.
Sink Jr. did prevail on his argument that the original injunction was defective because it failed to require his father to post a bond, but the victory proved pyrrhic as Norton amended the order to require Sink Sr. to post only a nominal $500 bond in light of the strong likelihood that his suit would be successful. Sink Jr. had neglected to request a bond at an earlier hearing, but Norton said that it was nevertheless an error for the court to fail to address the issue.
Few punches have been pulled in the family feud between Sink Jr. and his father, who has become a widely recognized personality through his omnipresent television advertisements and billboard ads, many of which feature his 999-9999 phone number. In his filings, Sink Sr. consistently refers to his son as “Ted,” a nickname derived from his middle name, Theodore.
But the seriousness of the dispute didn’t prevent Norton from working in a bit of A+ humor alluding to the well-known phone number. Sink Jr. had raised seven different arguments supporting his motion to stay the injunction, and in his opinion Norton rejected each one in turn.
“If the court were to issue its order in German, the bottom line would be ‘Nein, nein, nein, nein, nein, nein, nein.’ The irony is staggering,” Norton wrote in a footnote.
The 31-page decision is George Sink, P.A. Injury Lawyers v. George Sink II Law Firm, LLC (Lawyers Weekly No. 002-062-19). An opinion digest is available online at sclawyersweekly.com.
Follow David Donovan on Twitter @SCLWDonovan