FOURTH DIVISION

DILLARD, P. J.,

RICKMAN, P. J., and BROWN, J.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

https://www.gaappeals.us/rules

DEADLINES ARE NO LONGER TOLLED IN THIS

COURT. ALL FILINGS MUST BE SUBMITTED WITHIN

THE TIMES SET BY OUR COURT RULES.

February 5, 2021

In the Court of Appeals of Georgia

A20A2121. CAROLINE MAKI et al. v. REAL ESTATE EXPERT

ADVISORS INC.

DILLARD, Presiding Judge.

Our adversarial system is premised on the idea that legal disputes are best

resolved through the strategic battle waged by advocates representing their clients’

best interests before a fair and impartial jury. But every so often, counsel for both

parties neglect to provide the trial court with the information it needs to properly

decide a case, and this failure—no matter how inadvertent—can sometimes result in

a proceeding with a substantial error that is harmful as a matter of law. This is such

a case.
Following a bifurcated jury trial, Caroline Maki and The Maki Group Real

Estate Expert Advisors, LLC1 were found liable for misappropriating the trade name

of Real Estate Expert Advisors, Inc.2 On appeal, Maki argues, inter alia, that the trial

court erred by failing to instruct the jury on the “likelihood-of-confusion” analysis

necessary to reach its verdict.

3

 Because we agree with Maki, we reverse.

Viewed in the light most favorable to the jury’s verdict,

4

the record shows that

REEA is a real estate brokerage firm specializing in facilitating residential purchases

1 For ease of reference, Caroline Maki and The Maki Group Real Estate Expert

Advisors, LLC are collectively referred to as “Maki” throughout the opinion. 

2 For ease of reference, Real Estate Expert Advisors, Inc. will be referred to as

“REEA” throughout the opinion. 

3 Maki separately argues that the trial court erred in failing to grant judgment

notwithstanding the verdict because REEA’s mark as applied to itsservicesis generic

and merely descriptive. Maki also contends that the court likewise erred in entering

a judgment awarding actual damages against it for violating the Georgia Uniform

Deceptive Trade Practices Act when that statute only permits injunctive relief.

Finally, Maki maintainsthat the trial court erred in awarding REEA attorney fees and

litigation expenses under OCGA § 13-6-11, as well as punitive damages. But we need

not address any of these enumerations of error because Maki is entitled to a new trial. 

4

See, e.g., Bloom v. Camp, 336 Ga. App. 891, 892 (1) (785 SE2d 573) (2016)

(“The ‘any evidence’ standard of review applies to this argument, that is, we must

affirm if there is any evidence to support the jury’s verdict, and in making this

determination, we must construe the evidence in the light most favorable to . . . the

prevailing party.”).

2
and sales. REEA has been in business and operating under the name of “Real Estate

Expert Advisors” since 2014. And prior to REEA’s use of this name, no other

company, business, or individual used those four words in that exact order. Indeed,

REEA spent millions of dollars to advertise and promote its name in the metro

Atlanta area—including Gwinnett County—since 2014. 

REEA learned that Maki was using “Real Estate Expert Advisors” in its

advertising, and, shortly thereafter, sent a demand letter to Maki requesting that it

immediately cease use of “Real Estate Expert Advisors.” Maki refused to do so, and

REEA filed suit against Maki, seeking a temporary and permanent injunction under

the Georgia Uniform Deceptive Trade Practices Act, damages for misappropriation

of a trade name, attorney fees and litigation expenses, and punitive damages. Maki

counterclaimed against REEA, seeking damages as a result of REEA “willfully and

recklessly ma[king] false representations to [the court] to perpetrate a fraud on [the

court] with the goal of stifling legal competition in the real estate industry” and in

violation of OCGA § 10-1-372 (a) (8). 

A jury returned a verdict in favor of REEA, awarding attorney fees and

damages and, following a second trial, punitive damages. Additionally, the jury ruled

in REEA’s favor on Maki’s counterclaims. The trial court then issued judgment on

3
the jury’s verdicts and issued the temporary injunction requested by REEA. Maki

sought judgment notwithstanding the verdict, which the trial courtsummarily denied.

This appeal follows.

1. Maki argues that the trial court erred by failing to instruct the jury on the

likelihood-of-confusion analysis necessary to reach its verdict. More specifically,

Maki contends that the trial court neglected to provide the jury with the seven-factor

analysis that must be applied to claims brought under the Georgia UniformDeceptive

Trade Practices Act. We agree. 

Maki asserts that the trial court was required to instruct the jury to determine

the “likelihood of confusion” based upon the following seven factors:

(1) the strength and distinctiveness of the plaintiff’s mark; (2) the

similarity of the marks; (3) the similarity of the products the marks

represent; (4) the similarity of the parties’ retail outlets and customers;

(5) the similarity of advertisingmedia;(6) the defendant’sintent; and (7)

actual confusion. 

Importantly, in Ackerman Security Systems, Inc. v. Design Security Systems, Inc.,

5 we

noted that the “appropriate legal test” for claims brought under the Georgia Deceptive

Trade Practices Act is the likelihood-of-confusion test, which requires the

5

 201 Ga. App. 805 (412 SE2d 588) (1991).

4
examination of a number of elements, including those Maki asserts must be

considered.

6 And of these factors, federal courts have explained that “the type of mark

and the evidence of actual confusion are the most important.”7 But these seven factors

“are not exclusive,” and each factor need not be considered in every case.8

Here, the trial court instructed the jury, in relevant part, as follows:

A person engages in deceptive trade practice when, in the course

of her business, vocation, or occupation, she passes off goods or

services as those of another; causes likelihood of confusion or of

6

Id. at 806 (1); see ITT Corp. v. Xylem Grp., LLC, 963 FSupp2d 1309, 1327

(6) (ND Ga. 2013) (“Whether confusion occurs under [the] Georgia Deceptive Trade

Practices Act, [OCGA] § 10-1-372, requires the same ‘likelihood of confusion’

analysis found in trademark-infringement claims under the Lanham Act.”).

7 Caliber Auto. Liquidators, Inc. v. Premier Chrysler, Jeep, Dodge, LLC, 605

F3d 931, 935 (II) (11th Cir. 2010) (punctuation omitted); accord Frehling Enters. v.

Int’l Select Group, Inc., 192 F3d 1330, 1335 (III) (11thCir. 1999);Costa Farms, LLC

v. Costa Tropicals & Flowers, Inc., 2013 WL 12092473, at *4 (III) (A) (2) (SD Fla.

2013); see PlayNation Play Sys., Inc. v. Velex Corp., 924 F3d 1159, 1165 (II) (11th

Cir. 2019) (“Of these factors, the strength of the mark and actual confusion are the

most probative.”).

8

See PlayNation Play Sys., Inc., 924 F2d at 1169 (II) (D) (“These factors are

not exclusive. Courts do not have to consider every factor in every case.”); Swatch

Watch, S.A. v. Taxor, Inc., 785 F2d 956, 958 (A) (11th Cir. 1986) (“The court does

not have to consider all of these factorsin every case and in some cases, ‘new’ factors

may merit consideration. The real question is whether the court’s ultimate

determination about the ‘likelihood of confusion’ was correct.” (emphasis &

punctuation omitted)).

5
misunderstanding as to the source, sponsorship, approval, or

certification of goods or services; causes likelihood of confusion or of

misunderstanding as to affiliation, connection or association with, or

certification by another; or engagesin any other conduct which similarly

creates a likelihood of confusion or of misunderstanding.

In order to prevail in an action under the Georgia Uniform

Deceptive Trade Practices Act, the plaintiff need not prove competition

between the parties or actual confusion or misunderstanding. 

So, Maki is correct that the trial court did not instruct the jury as to the seven

likelihood-of-confusion factors.

9

 But this does not end our inquiry.

Maki’srequeststo charge did not contain an instruction asto the likelihood-ofconfusion analysis.

10 And it is undisputed that Maki issued no objection to the trial

9 Cf. John H. Harland Co. v. Clarke Checks, Inc., 711 F2d 966, 973 (III) (11th

Cir. 1983) (“In this case, the district court properly instructed the jury on the factors

itshould consider in determining whether there was a likelihood of confusion . . . .”).

10

See OCGA § 5-5-24 (b) (“In all cases, at the close of the evidence or at such

earlier time during the trial as the court reasonably directs, any party may present to

the court written requests that it instruct the jury on the law as set forth therein.

Copies of requests shall be given to opposing counsel for their consideration prior to

the charge of the court. The courtshall inform counsel of its proposed action upon the

requests prior to their arguments to the jury but shall instruct the jury after the

arguments are completed. The trial judge shall file with the clerk all requests

submitted to him, whether given in charge or not.”).

6
court’s instructions to the jury.

11 As a result, we review this assertion only for

“substantial error” because, “[n]otwithstanding any other provision of [OCGA § 5-5-

24], the appellate courtsshall consider and review erroneous charges[when]there has

been a substantial error in the charge which was harmful as a matter of law, regardless

of whether objection was made hereunder or not.”12

11

See OCGA § 5-5-24 (a) (“Except as otherwise provided in this Code section,

in all civil cases, no party may complain of the giving or the failure to give an

instruction to the jury unless he objects thereto before the jury returns its verdict,

stating distinctly the matter to which he objects and the grounds of his objection.

Opportunity shall be given to make the objection out of the hearing of the jury.

Objection need not be made with the particularity formerly required of assignments

of error and need only be asreasonably definite asthe circumstances will permit. This

subsection shall not apply in criminal cases.”).

12 OCGA § 5-5-24 (c); see Jones v. Forest Lake Village Homeowners Ass’n,

Inc., 304 Ga. App. 495, 502 (3) (696 SE2d 453) (2010) (“Unless the failure to give

a charge is harmful as a matter of law to the extent that a gross miscarriage of justice

is about to result, the absence of a written request to charge is a waiver of the right

to complain on appeal.” (punctuation omitted)). Maki does not cite to or discuss

OCGA § 5-5-24 (c), instead making only a blanket assertion that the trial court

committed “plain error,” which is the term used in OCGA § 17-8-58, applicable to

criminal trials. See OCGA § 17-8-58 (b) (“Failure to object in accordance with

subsection (a) of this Code section shall preclude appellate review of such portion of

the jury charge, unless such portion of the jury charge constitutes plain error which

affects substantial rights of the parties. Such plain error may be considered on appeal

even if it was not brought to the court’s attention as provided in subsection (a) of this

Code section.”); State v. Kelly, 290 Ga. 29, 32 (1) (718 SE2d 232) (2011) (explaining

that OCGA § 17-8-58 (b) on “plain error” applies to criminal cases while OCGA §

5-5-24 (c) on “substantial error” applies to civil cases).

7
A charge constituting substantial error is one that is harmful as a matter of

law—i.e., “blatantly apparent and prejudicial to the extent . . . it raises the question

of whether the losing party has, to some extent at least, been deprived of a fair trial

because of it, or a grossinjustice is about to result or hasresulted directly attributable

to the alleged errors.”13 Suffice it to say, instances of reversal under OCGA § 5-5-24

(c) “are likely to be very, very rare.”14

 Indeed, generally speaking, if counsel—who

are skilled and trained in the law and who have prepared and tried the case—“fail to

see the error and enter an exception as provided in subsections (a) and (b), it is not

13

Smith v. Norfolk S. R.R. Co., 337 Ga. App. 604, 612 (2) (788 SE2d 508)

(2016) (punctuation omitted); see Williams v. Kennedy, 240 Ga. 163, 164 (2) (240

SE2d 51) (1977) (“The exception to the rule found in [OCGA § 5-5-24 (c)] . . . is

inapplicable unless it appears that the error contended is ‘blatantly apparent and

prejudicial’ and that a gross miscarriage of justice attributable to it is about to result.”

(punctuation & citations omitted)); Mercker v. Abend, 260 Ga. App. 836, 840 (2) (581

SE2d 351) (2003) (“A charge ‘harmful as a matter of law’ is one that is so blatantly

apparent and prejudicial that it raises the question of whether the losing party has

been deprived of a fair trial because of it, or a gross injustice has resulted that is

directly attributable to the alleged error.”).

14

Shilliday v. Dunaway, 220 Ga. App. 406, 410 (8) (469 SE2d 485) (1996)

(punctuation omitted); accord Seabolt v. Cheesborough, 127 Ga. App. 254, 260 (5)

(193 SE2d 238) (1972); Nathan v. Duncan, 113 Ga. App. 630, 638 (6) (149 SE2d

383) (1966); see Waller v. Rymer, 293 Ga. App. 833, 836 (1) (668 SE2d 470) (2008)

(“We have held that instancesfalling within the exception contemplated in subsection

(c) are very rare, and should be applied, and appellate review performed, only when

it appears that a gross injustice has resulted or will result from the alleged error.”

(punctuation omitted)).

8
to be regarded as harmful.”15 Nevertheless, it is the duty of the trial court, whether

requested or not, to “give the jury appropriate instructions on every substantial and

vital issue presented by the evidence, and on every theory of the case.”16

Here, the instructions given by the trial court tracked the language of the

relevantCode sections nearly verbatim.

17 But the “central inquiry” in an infringement

case is “whether there is a ‘likelihood of confusion’ on the part of consumers between

15 Nathan, 113 Ga. App. at 638 (6); accord Central of Ga. R.R. Co. v. Luther,

128 Ga. App. 178, 180 (1) (196 SE2d 149) (1973).

16 Almassud v. Mezquital, 345 Ga. App. 456, 458 (1) (811 SE2d 110) (2018);

see Robinson v. State, 278 Ga. 836, 838 (5) n.7 (607 SE2d 559) (2005) (citing with

approval Davis & Shulman, Georgia Practice & Procedure, § 21-3, for the proposition

that “[i]t isthe duty of the court, whether requested or not, to give the jury appropriate

instructions on every substantial and vital issue presented by the evidence, and on

every theory of the case”); Hill v. State, 237 Ga. 523, 524 (3) (228 SE2d 898) (1976)

(“It is, of course, the duty of the trial court, whether requested or not to give the jury

appropriate instructions on every substantial issue in the case which is raised by the

evidence[.]”).

17

See OCGA § 10-1-372 (a) (1), (2), (3), (12) (“A person engages in a

deceptive trade practice when, in the course of his business, vocation, or occupation,

he: (1) Passes off goods or services as those of another; (2) Causes likelihood of

confusion or of misunderstanding as to the source, sponsorship, approval, or

certification of goods or services; (3) Causes likelihood of confusion or of

misunderstanding as to affiliation, connection, or association with or certification by

another; . . . or (12) Engagesin any other conduct which similarly creates a likelihood

of confusion or of misunderstanding.”); OCGA § 10-1-372 (b) (“In order to prevail

in an action under this part, a complainant need not prove competition between the

parties or actual confusion or misunderstanding.”).

9
the names and symbols used by the two parties,”18 which is reflected by repeated

reference to the “likelihood of confusion” in the statute itself.19 And the extent to

which two marks are confusingly similar cannot be assessed “without considering all

seven factors to ensure that the determination is made in light of the totality of the

circumstances.”

20

Thus, because of this clear mandate, the omission from the charge of the seven

“likelihood of confusion” factors was so blatantly apparent and prejudicial that it

raises the question of whether Maki was deprived of a fair trial.

21 The sole issue in

18 Corps Grp. v. Afterburner, Inc., 335 Ga. App. 138, 144 (1) (779 SE2d 383)

(2015) (punctuation omitted).

19

See OCGA § 10-1-372 (a) (2), (3), (12) (quoted supra in note 17).

20 Corps Grp., 335 Ga. App. at 145 (1) (punctuation omitted) (emphasis

supplied); accord Sovereign Military Hospitaller Order of St. John of Jerusalem of

Rhodes & of Malta v. Fla. Priory of Knights Hospitallers of Sovereign Order of St.

John of Jerusalem, Knights of Malta, the Ecumenical Order, 702 F3d 1279, 1293 (III)

(B) (11th Cir. 2012); Wesco Mfg., Inc. v. Tropical Attractions of Palm Beach, Inc.,

833 F2d 1484, 1488 (II) (C) (11th Cir. 1987).

21 Cf. Ford Motor Co. v. Conley, 294 Ga. 530, 541 (2) (757 SE2d 20) (2014)

(“If the error alleged was not materially prejudicial—if the party was not thereby

deprived of a fair trial—then there is no justification for requiring another trial of the

same case.”); Mercker, 260 Ga. App. 841 (2) (“Having reviewed the record, including

the entire jury charge, we hold that the omission of the cited language was not so

blatantly apparent and prejudicial that it raises the question of whether [appellant]

was deprived of a fair trial.”).

10
this case—whether there was a likelihood of confusion between the parties’

names—was erroneously presented because the instructions were incomplete, which

necessarily hampered the jury’s deliberations.

22 This, in turn, hinders our analysis of

the jury’s verdict.

23 Accordingly, although we are certainly troubled by the failure of

22 Foskey v. Foskey, 257 Ga. 736, 737 (2) (363 SE2d 547) (1988) (“Reversals

by reason of erroneous jury charges to which no exceptions are taken are generally

those in which (1) ‘there was an erroneous presentation of the sole issue for decision’

or (2) ‘it is of a kind which would have been likely to influence the jury either to find

against the defendant or to return a larger verdict than it might have otherwise done’

or (3) it is ‘blatantly apparent and prejudicial to the extent that it raises the question

of whether the losing party has, to some extent at least, been deprived of a fair trial

because of it’ or (4) ‘a gross injustice is about to result or has resulted directly

attributable to the alleged errors.’” (citation & punctuation omitted)); Brown v.

Garrett, 261 Ga. App. 823, 826 (1) (584 SE2d 48) (2003) (explaining that

“substantial error” occurs when “(1) the sole issue for decision was erroneously

presented; (2) the error was likely to influence the jury to find against the defendant

or return a larger verdict; (3) the error was so blatantly apparent and prejudicial that

it raises the question whether the losing party received a fair trial; or (4) a gross

injustice resulted, directly attributable to the error”).

23

See Corps. Grp., 335 Ga. App. at 145 (1) (“In performing our review of

whether there exists a likelihood of consumer confusion in a trademark infringement

case under the Lanham Act, this Court must consider and evaluate the evidence

supporting each of the [seven] factors and consider the weight to be accorded to each

of the factors under the totality of the circumstances.”); see also Sovereign Military

Hospitaller, 702 F3d at 1294 (III) (B) (“[W]hen a district court completely disregards

the proper [seven-factor] analysis in making its determination of confusion, we may

vacate its ruling and remand for consideration of the claim using the proper

framework. “ (punctuation omitted)); Wesco Mfg., 833 F2d at 1489 (II) (C) (“[T]he

district court completely disregarded the proper [seven-factor] analysis, and we are

left with an insufficient basisfor determining whether itsfinding that “Surfari” is not

11
trial counsel to request this additional instruction or otherwise notice its omission,

24

we must reverse and order that a new trial be conducted because the error in this case

was harmful as a matter of law.25

confusingly similar to “Sun Fari” is clearly erroneous.”).

24 We can readily distinguish this case from the circumstances in Moody v.

Dykes, 269 Ga. 217 (496 SE2d 907) (1998), which REEA repeatedly discusses and

cites. In that case, our Supreme Court concluded that counsel induced the

complained-of error or acquiesced in the instructions given by the trial court because

the appellant challenged the inclusion of allegedly erroneous instructions, not the

omission of a charge that, by all indications in the record, was never considered by

any party or the court for inclusion in the instructions. Id. at 220 (3) (“These facts

compel the conclusion that the [appellants] expressly acquiesced in both the court’s

instruction on worldly circumstances and in the jury’s consideration of them.”

(footnotes omitted));see Irvin v. Oliver, 223 Ga. 193, 196 (2) (154 SE2d 217) (1967)

(“We construe [OCGA § 5-5-24 (c)] to refer only to the failure to make objection to

the charge, and not to those instances where the giving of an instruction, or the failure

to give an instruction, is induced by counsel for the complaining party during the

course of the trial, or specifically acquiesced in by counsel. It is always the duty of

counsel, as officers of the court, to aid the trial judge in presenting the issues to the

jury, and it should never be their purpose to mislead the judge in any statement made

in regard to the issuesinvolved in the case, or the law.”). Cf. Daniels v. State, 306 Ga.

App. 577, 583 (3) (703 SE2d 41) (2010) (appellant waived issue of trial court’s

failure to charge the definition of “attempt” when appellant did not request the charge

and actually opposed the State’s request that the court define “attempt” and did not

object when the State withdrew its request).

25 Cf. Am. Ass’n of Cab Cos., Inc. v. Parham, 291 Ga. App. 33, 38 (3) (b) (661

SE2d 161) (2008) (“When an instruction imposes an erroneously high burden of

proof on a civil plaintiff, thereby shifting that burden on a primary issue, a new trial

is the only remedy, even if the plaintiff obtained a judgment at the previous trial. We

conclude that the trial court’s instruction imposing a ‘clear and convincing’standard

12
2. Based on our decision in Division 1, we need not address Maki’s remaining

enumerations of error.

Judgment reversed. Rickman, P. J., and Brown, J., concur

of proof on [appellee’s] civil RICO claims was erroneous and harmful as a matter of

law.” (footnotes omitted)); Pendarvis Const. Corp. v. Cobb Cnty.-Marietta Water

Auth., 239 Ga. App. 14, 17 (2) (520 SE2d 530) (1999) (“The error in this case was an

error of law and it was prejudicial because it went to the primary issue in the case, the

value of the property. The charge shifted the burden of proof on that issue, and the

jury awarded only $426 more than the $5,400 sought by the [appellee], less than

one-half of one percent of what [appellant]sought over and above that amount. Thus

the charge may well have affected the outcome of the case and deprived [appellant]

of a fair trial. The charge was not corrected by the charge as a whole. It wasseparated

from the earlier charge giving the [appellee’s] burden and it may have taken on an

importance in the jurors’ minds separate from the earlier charge.”).

13