Trade Practices and Antitrust Regulation

ORS 646.608
Additional unlawful business, trade practices

  • proof
  • rules


(1)

A person engages in an unlawful practice if in the course of the person’s business, vocation or occupation the person does any of the following:

(a)

Passes off real estate, goods or services as the real estate, goods or services of another.

(b)

Causes likelihood of confusion or of misunderstanding as to the source, sponsorship, approval, or certification of real estate, goods or services.

(c)

Causes likelihood of confusion or of misunderstanding as to affiliation, connection, or association with, or certification by, another.

(d)

Uses deceptive representations or designations of geographic origin in connection with real estate, goods or services.

(e)

Represents that real estate, goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, quantities or qualities that the real estate, goods or services do not have or that a person has a sponsorship, approval, status, qualification, affiliation, or connection that the person does not have.

(f)

Represents that real estate or goods are original or new if the real estate or goods are deteriorated, altered, reconditioned, reclaimed, used or secondhand.

(g)

Represents that real estate, goods or services are of a particular standard, quality, or grade, or that real estate or goods are of a particular style or model, if the real estate, goods or services are of another.

(h)

Disparages the real estate, goods, services, property or business of a customer or another by false or misleading representations of fact.

(i)

Advertises real estate, goods or services with intent not to provide the real estate, goods or services as advertised, or with intent not to supply reasonably expectable public demand, unless the advertisement discloses a limitation of quantity.

(j)

Makes false or misleading representations of fact concerning the reasons for, existence of, or amounts of price reductions.

(k)

Makes false or misleading representations concerning credit availability or the nature of the transaction or obligation incurred.

(L)

Makes false or misleading representations relating to commissions or other compensation to be paid in exchange for permitting real estate, goods or services to be used for model or demonstration purposes or in exchange for submitting names of potential customers.

(m)

Performs service on or dismantles any goods or real estate if the owner or apparent owner of the goods or real estate does not authorize the service or dismantling.

(n)

Solicits potential customers by telephone or door to door as a seller unless the person provides the information required under ORS 646.611 (Information required to be given by telephone or door to door seller to potential customer).

(o)

In a sale, rental or other disposition of real estate, goods or services, gives or offers to give a rebate or discount or otherwise pays or offers to pay value to the customer in consideration of the customer giving to the person the names of prospective purchasers, lessees, or borrowers, or otherwise aiding the person in making a sale, lease, or loan to another person, if earning the rebate, discount or other value is contingent upon an event occurring after the time the customer enters into the transaction.

(p)

Makes any false or misleading statement about a prize, contest or promotion used to publicize a product, business or service.

(q)

Promises to deliver real estate, goods or services within a certain period of time with intent not to deliver the real estate, goods or services as promised.

(r)

Organizes or induces or attempts to induce membership in a pyramid club.

(s)

Makes false or misleading representations of fact concerning the offering price of, or the person’s cost for real estate, goods or services.

(t)

Concurrent with tender or delivery of any real estate, goods or services fails to disclose any known material defect or material nonconformity.

(u)

Engages in any other unfair or deceptive conduct in trade or commerce.

(v)

Violates any of the provisions relating to auction sales, consignment sales, auctioneers, consignees or auction marts under ORS 698.640 (Requirements for auction sales, consignment sales, auctioneers, consignees and auction marts), whether in a commercial or noncommercial situation.

(w)

Manufactures mercury fever thermometers.

(x)

Sells or supplies mercury fever thermometers unless the thermometer is required by federal law, or is:

(A)

Prescribed by a person licensed under ORS chapter 677; and

(B)

Supplied with instructions on the careful handling of the thermometer to avoid breakage and on the proper cleanup of mercury should breakage occur.

(y)

Sells a thermostat that contains mercury unless the thermostat is labeled in a manner to inform the purchaser that mercury is present in the thermostat and that the thermostat may not be disposed of until the mercury is removed, reused, recycled or otherwise managed to ensure that the mercury does not become part of the solid waste stream or wastewater. For purposes of this paragraph, “thermostat” means a device commonly used to sense and, through electrical communication with heating, cooling or ventilation equipment, control room temperature.

(z)

Sells or offers for sale a motor vehicle manufactured after January 1, 2006, that contains mercury light switches.

(aa)

Violates the provisions of ORS 803.375 (False application prohibited), 803.385 (False swearing relating to registration) or 815.410 (Illegal odometer tampering) to 815.430 (Submitting false odometer disclosure).

(bb)

Violates ORS 646A.070 (Sale of telephonic equipment) (1).

(cc)

Violates any requirement of ORS 646A.030 (Definitions for ORS 646A.030 to 646A.042) to 646A.040 (Waiver of provisions of ORS 646A.030 to 646A.042).

(dd)

Violates the provisions of ORS 128.801 (Definitions for ORS 128.801 to 128.898) to 128.898 (Short title).

(ee)

Violates ORS 646.883 (Price comparison in advertisement prohibited) or 646.885 (Use of terms in advertisement containing price comparison).

(ff)

Violates ORS 646.569 (Prohibition on telephone solicitation of party whose name is included on list described in ORS 646.574 or on federal registry designated under ORS 646.572).

(gg)

Violates the provisions of ORS 646A.142 (Rental vehicle collision damage waiver notice).

(hh)

Violates ORS 646A.360 (Unsolicited facsimile machine transmissions).

(ii)

Violates ORS 646.553 (Registration of telephonic sellers) or 646.557 (Required disclosures by telephonic seller) or any rule adopted pursuant thereto.

(jj)

Violates ORS 646.563 (Telephone solicitation of party who states desire not to be called).

(kk)

Violates ORS 759.680 (Operator service provider duties to service users) or any rule adopted pursuant thereto.

(LL)

Violates the provisions of ORS 759.705 (Program message preamble), 759.710 (Pay-per-call information) and 759.720 (Action against information provider for failure to comply with law) or any rule adopted pursuant thereto.

(mm)

Violates ORS 646A.210 (Requiring credit card number as condition for accepting check or share draft prohibited) or 646A.214 (Verification of identity in credit or debit card transactions).

(nn)

Violates any provision of ORS 646A.124 (General disclosure requirements) to 646A.134 (Disclosures required in advertisement for lease-purchase agreements).

(oo)

Violates ORS 646A.095 (Disclosure required when purchaser of product offered technical support through information delivery system).

(pp)

Violates ORS 822.046 (Vehicle dealer’s duty to inform potential buyer if vehicle used for manufacture of controlled substances).

(qq)

Violates ORS 128.001 (Limitations on accepting payment for preparation of trust).

(rr)

Violates ORS 646A.800 (Late fees on delinquent cable service accounts) (2) to (4).

(ss)

Violates ORS 646A.090 (Offer to sell or lease motor vehicle under retail installment contract or lease agreement) (2) to (5).

(tt)

Violates ORS 87.686 (Rental agreement).

(uu)

Violates ORS 646A.803 (Contest and sweepstakes solicitations).

(vv)

Violates ORS 646A.362 (Exclusion of name from sweepstakes promotion mailing list).

(ww)

Violates ORS 646A.052 (Form of purchase agreement) or any rule adopted under ORS 646A.052 (Form of purchase agreement) or 646A.054 (Rules).

(xx)

Violates ORS 180.440 (Prohibited conduct) (1) or 180.486 (Prohibited conduct) (1).

(yy)

Commits the offense of acting as a vehicle dealer without a certificate under ORS 822.005 (Acting as vehicle dealer without certificate).

(zz)

Violates ORS 87.007 (Protection from construction liens perfected after sale of residential property completed) (2) or (3).
(aaa) Violates ORS 92.405 (Sale prohibited where public report not waived) (1), (2) or (3).
(bbb) Engages in an unlawful practice under ORS 646.648 (Unlawful practice by manufactured dwelling dealer).
(ccc) Violates ORS 646A.365 (Check, draft or payment instrument creating obligation for payment).
(ddd) Violates ORS 98.853 (Conditions allowing towing), 98.854 (Prohibitions placed on tower), 98.856 (Tower responsibility of disclosure to owner or operator of vehicle) or 98.858 (Right of owner or person in lawful possession of vehicle to redeem or inspect vehicle, contact tower and obtain property of emergency nature) or a rule adopted under ORS 98.864 (Rules).
(eee) Sells a gift card in violation of ORS 646A.276 (Sale of gift card that expires, declines in value, includes fee or does not give option to redeem).
(fff) Violates ORS 646A.102 (Notice of intent to conduct going out of business sale), 646A.106 (Circumstances in which going out of business sale prohibited) or 646A.108 (Prohibited conduct).
(ggg) Violates ORS 646A.430 (Definitions for ORS 646A.430 to 646A.450) to 646A.450 (Rules).
(hhh) Violates a provision of ORS 744.318 (Definitions for ORS 744.318 to 744.384) to 744.384 (Rules).
(iii) Violates a provision of ORS 646A.702 (Definitions for ORS 646A.702 to 646A.720) to 646A.720 (Prohibited acts of foreclosure consultant).
(jjj) Violates ORS 646A.530 (Prohibited sales of certain children’s products) 30 or more days after a recall notice, warning or declaration described in ORS 646A.530 (Prohibited sales of certain children’s products) is issued for the children’s product, as defined in ORS 646A.525 (Definitions for ORS 646A.525 to 646A.535), that is the subject of the violation.
(kkk) Violates a provision of ORS 697.612 (Registration requirement), 697.642 (Bond requirement), 697.652 (Written agreement and budget analysis requirement), 697.662 (Prohibited practices), 697.682 (Trust accounts for client funds), 697.692 (Fees) or 697.707 (Required disclosures).
(LLL) Violates the consumer protection provisions of the Servicemembers Civil Relief Act, 50 U.S.C. 3901 et seq., as in effect on January 1, 2010.
(mmm) Violates a provision of ORS 646A.480 (Definitions for ORS 646A.480 to 646A.495) to 646A.495 (Owner designee).
(nnn) Violates ORS 646A.082 (Floral retail sales).
(ooo) Violates ORS 646.647 (Unlawful use of recording group name).
(ppp) Violates ORS 646A.115 (Software prohibited that interferes with sale of admission tickets to entertainment events).
(qqq) Violates a provision of ORS 646A.405 (Manufacturer action under ORS 646A.404).
(rrr) Violates ORS 646A.092 (Advertisements for sale or lease of motor vehicle).
(sss) Violates a provision of ORS 646.644 (Free offer).
(ttt) Violates a provision of ORS 646A.295 (Prohibited actions).
(uuu) Violates ORS 646A.564 (Standards for mercury content in electric lamps).
(vvv) Engages in the business of, or acts in the capacity of, an immigration consultant, as defined in ORS 9.280 (Prohibition on acting as immigration consultant), in this state and for compensation, unless federal law authorizes the person to do so or unless the person is an active member of the Oregon State Bar.
(www) Violates ORS 702.012 (Registration requirement), 702.029 (Notice to athletic director regarding contact with student athlete) or 702.054 (Notice of contract).
(xxx) Violates ORS 646A.806 (Website with photographs and information about arrested persons).
(yyy) Violates ORS 646A.810 (Patent infringement claim made in bad faith) (2).
(zzz) Violates ORS 443.376 (Duties of referral agents).
(aaaa) Violates a provision of ORS 646A.770 (Definitions) to 646A.787 (Fiduciary responsibilities).

(2)

A representation under subsection (1) of this section or ORS 646.607 (Unlawful business, trade practices) may be any manifestation of any assertion by words or conduct, including, but not limited to, a failure to disclose a fact.

(3)

In order to prevail in an action or suit under ORS 336.184 (Oregon Student Information Protection Act) and 646.605 (Definitions for ORS 336.184 and 646.605 to 646.652) to 646.652 (District attorney’s reports to Attorney General), a prosecuting attorney need not prove competition between the parties or actual confusion or misunderstanding.

(4)

An action or suit may not be brought under subsection (1)(u) of this section unless the Attorney General has first established a rule in accordance with the provisions of ORS chapter 183 declaring the conduct to be unfair or deceptive in trade or commerce.

(5)

Notwithstanding any other provision of ORS 336.184 (Oregon Student Information Protection Act) and 646.605 (Definitions for ORS 336.184 and 646.605 to 646.652) to 646.652 (District attorney’s reports to Attorney General), if an action or suit is brought under subsection (1)(xx) of this section by a person other than a prosecuting attorney, relief is limited to an injunction and the prevailing party may be awarded reasonable attorney fees. [1971 c.744 §7 (enacted in lieu of 646.615); 1973 c.235 §2; 1973 c.513 §1; 1975 c.437 §1; 1977 c.195 §2; 1979 c.503 §4; 1983 c.404 §5; 1985 c.251 §10a; 1985 c.538 §3; 1985 c.694 §8; 1985 c.729 §22; 1987 c.626 §5; 1989 c.273 §7; 1989 c.451 §4; 1989 c.458 §3; 1989 c.621 §4; 1989 c.622 §7; 1989 c.623 §3; 1989 c.913 §1; 1991 c.532 §25; 1991 c.672 §8; 1993 c.58 §3; 1993 c.283 §10; 1993 c.582 §11; 1993 c.645 §10; 1993 c.700 §2; 1995 c.713 §6; 1995 c.788 §2; 1997 c.132 §6; 1997 c.806 §2; 1999 c.194 §9; 1999 c.400 §4; 1999 c.669 §3; 1999 c.719 §3; 1999 c.875 §3; 2001 c.924 §§11,13; 2001 c.969 §5; 2003 c.133 §§1,2; 2003 c.486 §§2,3; 2003 c.778 §§4,5; 2003 c.801 §§18,19; 2005 c.42 §§1,2; 2005 c.799 §§2,3; 2007 c.304 §2; 2007 c.538 §18; 2007 c.685 §13; 2007 c.772 §4; 2007 c.820 §8; 2007 c.823 §5; 2008 c.19 §§7,8; 2008 c.31 §§5,6; 2009 c.133 §6; 2009 c.150 §1; 2009 c.170 §1; 2009 c.197 §1; 2009 c.215 §3; 2009 c.310 §2; 2009 c.448 §11; 2009 c.604 §23; 2009 c.711 §21; 2009 c.717 §26; 2011 c.57 §2; 2011 c.502 §3; 2011 c.509 §4; 2012 c.52 §6; 2013 c.54 §8; 2013 c.77 §1; 2013 c.330 §2; 2013 c.493 §5; 2014 c.19 §3; 2015 c.523 §§9,10; 2017 c.113 §§14,15; 2017 c.241 §§2,3; 2017 c.480 §§15,16; 2017 c.656 §§5,6; 2019 c.13 §§59,60; 2019 c.175 §2]

Notes of Decisions

Ascertainable loss is necessary under this section to bring individual action to recover damages. Scott v. Western Int. Sales, Inc., 267 Or 512, 517 P2d 661 (1973)

The making of loans is not "sale or offering for sale" of goods or service or "the conduct of any trade or commerce" under the Unlawful Trade Practices Act. Haeger v. Johnson, 25 Or App 131, 548 P2d 532 (1976)

This section should apply only to those unlawful practices which arise out of transactions which are at least indirectly connected with ordinary and usual course of the defendant's business, vocation or occupation. Wolverton v. Stanwood, 278 Or 341, 563 P2d 1203 (1977)

Action could not lie where no assertion was made that particular repair services performed on automobile were performed according to any particular standard of quality. Denson v. Ron Tonkin Gran Turismo, Inc., 279 Or 85, 566 P2d 1177 (1977)

Misrepresentations of offering prices are not explicitly prohibited by this section. Denson v. Ron Tonkin Gran Turismo, Inc., 279 Or 85, 566 P2d 1177 (1977)

Seller's misrepresentation as to title or ownership of automobile was not misrepresentation of "characteristics . . . or qualities" of goods within meaning of this section. Chamberlain v. Jim Fisher Motors, Inc., 282 Or 229, 578 P2d 1225 (1978)

In action for personal injuries sustained in automobile accident in which plaintiff alleged dealer violated this section in representing that car had good brakes, contention of dealer that "private remedy" conferred on consumers by Uniform Trade Practices Act was not intended to create new cause of action for personal injury was correct. Gross-Haentjens v. Tharp, 38 Or App 313, 589 P2d 1209 (1979)

When federal and state law required contractor to inform homeowner of right to rescind contract, representation by contractor that homeowner had no right to rescind was unlawful practice under this section and no proof of justifiable reliance was required. Tri-West Const. v. Hernandez, 43 Or App 961, 607 P2d 1375 (1979), Sup Ct review denied

Furnishing contract for sale of automobile to buyer which indicated that vehicle was new rather than a demonstrator was sufficient representation that vehicle was new under this section even though buyer saw automobile's odometer reading. Searcy v. Bend Garage Co., 286 Or 11, 592 P2d 558 (1979)

Under former version of this section representation need not be of material nature. Searcy v. Bend Garage Co., 286 Or 11, 592 P2d 558 (1979)

Demurrer to complaint alleging "false or misleading representations" by defendant regarding discount fee in transaction involving government insured loan to purchaser of plaintiffs' house was properly sustained, because Unfair Trade Practices Act does not apply to loans or extensions of credit. Lamm v. Amfac Mortgage Corp., 44 Or App 203, 605 P2d 730 (1980)

Where defendant, a denturist, advertised his services without any indication that he was not a dentist or acting under dentist's supervision, advertisement constituted unlawful trade practice under this section since at time of advertisement only dentist or denturist under direction of dentist could offer denture services. Terry v. Holden-Dhein Enterprises, Ltd., 48 Or App 763, 618 P2d 7 (1980), Sup Ct review denied

Misrepresentations as to age and amount of use made during sale of hay baler were not covered by this section. Miller v. Hubbard-Wray Co., 52 Or App 897, 630 P2d 880 (1981), Sup Ct review denied, as modified by 53 Or App 531, 633 P2d 1 (1981)

Mere fact that State Board closely supervises profession of dentistry does not lead to conclusion that consumers who are measurably damaged by dentist's actions are prohibited from suing under Trade Practices Act. Investigators, Inc. v. Harvey, 53 Or App 586, 633 P2d 6 (1981)

Where testimony established that value of mobile home plaintiff purchased from defendant would be substantially decreased if it had to be moved, permanency of location was both a "characteristic" and a "quality" under this section and failure to communicate fact that mobile home park where mobile home was located was likely to be sold constituted false representation of characteristic or quality. Caldwell v. Pop's Homes, Inc., 54 Or App 104, 634 P2d 471 (1981)

There is no requirement that representations constituting willful violation of Act be made to injured customer. Raudebaugh v. Action Pest Control, 59 Or App 166, 650 P2d 1006 (1982)

Facts that car sold as new had not been previously titled, licensed or registered and that plaintiff received new car rebate and warranty are factors for trier of fact to consider but are not in themselves determinative of question whether car that had been previously subject to conditional sale and delivery was "new" under Unlawful Trade Practices Act. Weigel v. Ron Tonkin Chevrolet, 66 Or App 232, 673 P2d 574 (1983), aff'd as modified298 Or 127, 690 P2d 488 (1984)

"Likelihood of confusion" exists when consumers are likely to assume that product or service is associated with source other than actual source because of similarities between two sources' marks or marketing techniques. Shakey's Inc. v. Covalt, 704 F2d 426 (1983)

Where ordinary purchaser was not likely to confuse antifreeze of plaintiff and defendants, all of same yellow color and packaged in F-style jug, there was no likelihood of injury to plaintiff's business reputation and no ground for injunctive relief. Union Carbide Corp. v. Fred Meyer, Inc., 619 F Supp 1028 (1985)

Where plaintiff used car buyer brought action for car seller's violation of this section, plaintiff did not waive his claim for misrepresentation by reason of entry into new agreement with knowledge of fraud when he signed final sales contract because signing of contract was culmination of deceptive transaction and not separate agreement. Teague Motor Company v. Rowton, 84 Or App 72, 733 P2d 93 (1987)

Federal Trade Commission statutes and regulations regarding used motor vehicles do not preempt this section. Hinds v. Paul's Auto Werkstatt, Inc., 107 Or App 63, 810 P2d 874 (1991), Sup Ct review denied

Where borrowers retain professional services of nonlender to obtain nonbusiness loan, misrepresentation of character, quality or cost of services provided by nonlender is actionable under act. Cullen v. Investment Strategies, Inc., 139 Or App 119, 911 P2d 936 (1996), Sup Ct review denied

Nonlender misrepresentation of loan terms is not actionable under act. Cullen v. Investment Strategies, Inc., 139 Or App 119, 911 P2d 936 (1996), Sup Ct review denied

Failure of merchant to disclose known material defect or nonconformity may be "concurrent with tender or delivery" although occurring at other than precise moment of delivery. Parrott v. Carr Chevrolet, Inc., 156 Or App 257, 965 P2d 440 (1998), aff'd 331 Or 537, 17 P3d 473 (2001)

Where known supply of goods is limited, exclusivity is "characteristic" of goods. Feitler v. The Animation Celection, Inc., 170 Or App 702, 13 P3d 1044 (2000)

Where plaintiff law firm represented creditors in debt collection services and acted as debt collector and made representations to debtors that caused confusion or misunderstanding, this section applies and does not require that confusion or misunderstanding be about plaintiff's own "real estate, goods or services." Daniel N. Gordon, PC v. Rosenblum, 361 Or 352, 393 P3d 1122 (2017)

Law Review Citations

73 OLR 639 (1994)

§§ 646.605 to 646.656

Notes of Decisions

A complaint which alleges in one count that defendants advertised automobile for sale with intent not to sell it as advertised, in a second count that there was a failure to disclose advertised price coupled with sale at greater amount sufficiently pleads action under Act. Sanders v. Francis, 277 Or 593, 561 P2d 1003 (1977)

Plaintiff's purchase of truck to carry on business of hauling freight in order to provide family investment and employment for family member did not fall within provisions of Act. Searle v. Exley Express, Inc., 278 Or 535, 564 P2d 1054 (1977)

Amendment of definition of "trade" and "commerce" to include "advertising, offering or distributing, whether by sale, rental or otherwise, any real estate, goods or services" does not indicate legislative intent to extend application of Unfair Trade Practices Act to loans and extensions of credit. Lamm v. Amfac Mortgage Corp., 44 Or App 203, 605 P2d 730 (1980)

There is no requirement that consumer prove all elements of common law fraud in order to recover damages under Unlawful Trade Practices Act. Raudebaugh v. Action Pest Control, 59 Or App 166, 650 P2d 1006 (1982)

Plaintiff's allegations that defendant escrow company represented that plaintiff would receive security interests on notes from sale of their business did not constitute misrepresentations actionable under Unlawful Trade Practices Act. Samuels v. Key Title Co., 63 Or App 627, 665 P2d 362 (1983), Sup Ct review denied

Law Review Citations

56 OLR 490 (1977); 13 WLJ 455 (1977)

§§ 646.605 to 646.652

Notes of Decisions

Where users of IUDs brought suit against manufacturer on variety of grounds, claiming damages for infertility, private enforcement provision of Oregon Unlawful Trade Practices Act (UTPA) does not provide remedy for personal injuries. Allen v. G.D. Searle and Co., 708 F Supp 1142 (D. Or. 1989)

For purposes of applying Oregon Unlawful Trade Practices Act, real estate, goods or services are obtained primarily for personal, family or household purposes if (1) real estate, good or service is customarily purchased by substantial number of people for personal, family or household use and (2) person actually purchases real estate, good or service for personal, family or household use. Fowler v. Cooley, 239 Or App 338, 245 P3d 155 (2010)

Law Review Citations

51 OLR 335, 346, 408 (1972); 53 OLR 473-475 (1974); 94 OLR 589 (2016)

Chapter 646

Notes of Decisions

Subject matter regulated by this chapter is not "preempted" by Federal Robinson-Patman Act so as to render this chapter invalid. W. J. Seufert v. Nat. Restaurant Supply Co., 266 Or 92, 511 P2d 363 (1973)

Whether an injunction should issue when a court finds a violation of the Act is a matter of discretion. State ex rel Johnson v. International Harvester Co., 25 Or App 9, 548 P2d 176 (1976)

This chapter imposes no affirmative duty to inform customers of rates in absence of request, but prohibits making information about prices available to some customers and not others. Wildish Sand & Gravel v. Northwest Natural Gas Co., 103 Or App 215, 796 P2d 1237 (1990), Sup Ct review denied


Source

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Jun. 26, 2021