Garrido v. Burger King Corporation

558 So.2d 79 (1990)

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Nature of the Case

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Facts

Garrido telephoned Kupciunas, D's Vice President of Marketing, offering to make a presentation of a proposed advertising campaign. D employees agreed to meet with P. Garrido and two of his employees made their presentation to Kupciunas and two other D employees. The presentation focused on reaching the general fast food consumer market, and specifically, Hispanic consumers. P presented various written and visual materials, including a television storyboard, a series of slides, a demonstration tape of a musical jingle, and a creative strategy statement. The campaign was 'to impress on the consumer's mind the specific notion that 'everywhere you go in America there is a Burger King town.'' The campaign themes were, 'It's my Whopper, it's by Burger King' and 'It's my town, it's my Burger King.' Kupciunas told P to contact him in seven weeks. P called Kupciunas several times but never spoke again with Kupciunas. Nine months later, D began an advertising campaign called 'Burger King Town.' P sued for misrepresentation, breach of implied contract, misappropriation, conversion, theft pursuant to section 812.014(1), Fla. Stat. (1985), and conspiracy. D moved for summary judgment on the ground that all the claims were preempted by the Copyright Act of 1976, 17 U.S.C. section 301. Summary judgment was granted and P appealed.