ORS 646.608
Additional unlawful business, trade practices

• proof
• rules

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)

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)

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)

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