STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEARN 'N PLAY, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 84-1558

) A CHILD'S LEARN & PLAY CENTER, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Tallahassee, Florida, on June 21, 1984, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter. The parties were represented by:

Petitioner: No Appearance

Respondent: W. Bradley Monroe, Esquire

107 South Bronough Street Tallahassee, Florida 32301

This matter arose on Petitioner's complaint that Respondent's registered name was deceptively similar to Petitioner's business name. Petitioner was not represented at the hearing and thus presented no evidence. Respondent presented the testimony of its president.

FINDINGS OF FACT

1. Respondent has been in the child care business for eight weeks and is advertising its name and services locally. There have been no instances of confusion between the businesses of Petitioner and Respondent within the knowledge of Respondent's president.

   
   

2. Respondent registered its name with the Department of State, Division of Corporations prior to opening for business. The registration was accepted and duly recorded.

   
   

   CONCLUSIONS OF LAW

   
   

3. Section 607.024, Florida Statutes (1983) provides in part:

   
   

   1. The corporate name:

      * * *

      (b) Shall not be the same as, or deceptively similar to, the name of any domestic corporation existing under the

      laws of this state or any foreign corporation authorized to transact business in this state.

4. Rule 1N-1.06, Florida Administrative Code, provides:

   
   

   Names are not similar if a comparison of the names, written as above, reveals no similarity. A proposed corporate name which is deemed to be not similar will be available and will be filed upon

   compliance with other filing requirements.

   
   

5. The above provisions protect corporate names which are registered with the Department of State from use of deceptively similar corporate names. Since Respondent's corporate name was accepted by the Department of State, Petitioner had the burden of showing that Respondent's name is deceptively similar. "The general rule is that, as in court proceedings, the burden of proof, apart from statute, is on the party asserting the affirmative of an issue before an administrative tribunal." Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349, 350 (Fla. 1st DCA 1977)

   
   

6. Since Petitioner presented no evidence, it has failed in its burden of demonstrating the alleged deceptive similarity in names.

RECOMMENDATION

From the foregoing, it is

RECOMMENDED that the Secretary of State enter a Final Order denying the petition.

DONE AND ENTERED this 21st day of June, 1984, at Tallahassee, Florida.

R. T. CARPENTER, Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301 904/488-9675

FILED with the Clerk of the Division of Administrative Hearings this 21st day of June, 1984.

COPIES FURNISHED:

Larry Scoma, President Learn `N Play, Inc.

2425 Spoonwood Drive

Tallahassee, Florida 32303

W. Bradley Munroe, Esquire

107 South Bronough Street Tallahassee, Florida 32301

Carole J. Barice, Esquire Department of State

The Capitol, LL10 Tallahassee, Florida 32301

Honorable George Firestone Secretary of State

The Capitol

Tallahassee, Florida 32301

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEARN 'N PLAY, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 84-1558

) A CHILD'S LEARN & PLAY CENTER ) INC. & DEPARTMENT OF STATE )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter, in Tallahassee, Florida on June 21, September 6, and October 24, 1984. The parties were represented by:

For Petitioner: Larry Scoma, President

Learn 'N Play, Inc. 2425 Spoonwood Drive

Tallahassee, Florida 32303

For Respondent: W. Bradley Monroe, Esquire A Child's Learn 107 South Bronough Street & Play Center Tallahassee, Florida 32301

For Respondent: No Appearance Department of State

This matter arose on Petitioner's complaint that Respondent's registered name is deceptively similar to Petitioner's registered name. Petitioner failed to attend the first hearing and a Recommended Order was entered recommending dismissal of the petition.

Subsequently, on Petitioner's claim that it failed to receive notice of the first hearing, the matter was remanded by the Assistant Secretary of State.

Both Petitioner and Respondent were present at the reconvened hearing on September 6, 1984. At that time, Petitioner introduced evidence subject to

cross examination. However, Respondent's only witness was not avail- able due to illness, and the matter was continued to afford Petitioner its right to cross examine this witness on her prior testimony.

On October 23, 1984, counsel for Respondent, A Child's Learn & Play Center, Inc., contacted the Division of Administrative Hearings to advise that the company had gone out of business - and that it would not participate further in these proceedings. However, the hearing was convened as scheduled on October 24, 1984. 1/

Petitioner was present and participated in the October 24, 1984 hearing.

Neither Respondent appeared nor was anyone present to preserve testimony as required by Subsection 120.57(1) (b)6, Florida Statutes (1983). 2/ However, no substantive evidence was received and Petitioner's participation was limited to final argument. In view of the recommendation herein which proposes grant of the petition, it does not appear that failure to record the October 24, 1984, proceedings is a material consideration.

FINDINGS OF FACT

1. Petitioner's name, Learn 'N Play, Inc., was registered with the Department of State in October, 1977. Respondent's name, A Child's Learn & Play Center, Inc., was similarly registered in April, 1984. Thus, Petitioner's name registration preceded Respondent's.

   
   

2. Petitioner introduced exhibits which demonstrate that Respondent has locally advertised its business as "A Child's Learn & Play Center" consistent with its registered name, and that the former has advertised its business as "Learn `N Play" followed by the words "Child Care Center," for at least seven years.

   
   

3. Petitioner's president related three instances where it was mistakenly contacted by individuals seeking to contact Respondent. The first such contact was an accident inquiry and the other instances involved responses to a football game baby- sitting service advertised by Respondent.

   
   

4. Petitioner and Respondent offer the identical services implicit in their names. The words "Learn (and) Play" are common to both names and reference to "Child" or "Child Care" is necessarily included in advertisements and signs. Both services are located in the Tallahassee metropolitan area. Thus, there is a significant potential for confusion of these businesses by members of the public.

   
   

   CONCLUSIONS OF LAW

   
   

5. Section 607.024, Florida Statutes (1983) provides in part:

   
   

   1. The corporate name:

      * * *

      (b) Shall not be the same as, or deceptively similar to, the name of any domestic corporation existing under the laws of this state or any foreign corporation authorized to transact business in this state. .

6. Rule IN-1.06, Florida Administrative Code, provides:

   
   

   Names are not similar if a comparison of the names, written as above, reveals no similarity. A proposed corporate name which is deemed to be not similar will be available and will be filed upon compliance with other filing requirements.

   
   

7. The above provisions protect corporate names registered with the Department of State from the use of deceptively similar corporate names. A comparison of Petitioner's and Respondent's names reveals a deceptive similarity due to the presence of the phrase "Learn (and) Play." Because both parties offer the same service in the same geographical area, the deceptive similarity of their names is aggravated.

   
   

8. Respondent, A Child's Learn & Play Center, Inc., argues that it proceeded in good faith to determine through the Department of State that no entity had previously registered its proposed name or one that was deceptively similar, and that it should not now be put to the expense and inconvenience of changing its name.

   
   

9. Since Respondent, Department of State, took no part in these proceedings, its response to this argument is not known. However, the evidence adduced herein demonstrated that Respon- dent's name is deceptively similar to Petitioner's name and its registration should therefore be withdrawn.

RECOMMENDATION

From the foregoing, it is

RECOMMENDED that the Secretary of State enter a Final Order withdrawing its registration of Respondent's name "A Child's Learn & Play Center, Inc.

DONE and ENTERED this 25th day of October, 1984, in Tallahassee, Florida.

R. T. CARPENTER Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 1984.

ENDNOTE

1/ The matter at issue requires resolution since no action has been taken to preclude respondent or its successor from resuming business under the challenged name (or conversely, to remove the cloud from this name).

2/ The cited provision states in part: "The agency shall accurately and completely preserve all testimony in the proceeding..."

COPIES FURNISHED:

Larry Scoma, President Learn 'N Play, Inc.

2425 Spoonwood Drive

Tallahassee, Florida 32303

W. Bradley Munroe, Esquire

107 South Bronough Street Tallahassee, Florida 32301

Carol J. Barice, Esquire Department of State

The Capitol, LL10 Tallahassee, Florida 32301

Honorable George Firestone Secretary of State

The Capitol

Tallahassee, Florida 32301

Docket for Case No: 84-001558

Orders for Case No: 84-001558