STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

COMPUTER TRENDS, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 84-3201

) COMPUTER TRENDS INTERNATIONAL, ) INC., AND DIVISION OF )

CORPORATIONS, )

)

Respondents. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice in Tampa, Florida on January 30, 1985, by Stephen F. Dean assigned Hearing Officer, of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: S. Thomas Padgett, Esquire

Post Office Box 737 Tampa, Florida 33601

For Respondent: Robert E. Mansback, Jr., Esquire (Computer Trends Post Office Box 3000

International) Orlando, Florida 32802

For Respondent: Not represented and did not appear. (Division of

Corporations)

STATEMENT OF THE ISSUES

The issue in this case is whether the two corporate names and service/trademarks are so similar that they create confusion in the minds of the public and at Department of State.

PRELIMINARY STATEMENT

The Petitioner, Computer Trends, Inc., filed a timely petition challenging the issuance to Respondent, Computer Trends International, Inc., of a service mark and certificate of incorporation in that name by the Division of Corporations, Department of State. The Petitioner contended that it has the sole right to use any corporate name with the words "Computer Trends" in the corporate name together with a similar right to any registered service or trademarks. The Respondent contended that the word "International" makes a substantial difference between the two names thereby differentiating between the two corporations sufficiently to permit both corporations to retain their existing corporate names and trade/service marks.

FINDINGS OF FACT

1. The Petitioner, Computer Trends, Inc., filed articles of incorporation with the Department of State on April 16, 1984. Petitioner held its organizational meeting, used the corporate name, trademark, and tradename Computer Trends, Inc., on May 1, 1984.

   
   

2. The Petitioner is engaged in the retail business of selling personal computers, peripherals, and computer supplies to individuals and small businesses. The system price of a typical sale is between $1,000 and $6,000. The Petitioner has one business location located in Port Richey, Florida. The Petitioner advertises statewide by various methods. The Petitioner has plans to open additional stores on the west coast of Florida.

   
   

3. The Respondent Computer Trends filed its Articles of Incorporation with the Department of State on May 24, 1984 and registered "Computer Trends" as a trade and service mark on August 14, 1984. Computer Trends International, Inc., de-registered the trademark and service mark "Computer Trends" on December 11, 1984, and registered the trademark and service mark for Computer Trends International, Inc., on December 12, 1984.

   
   

4. Computer Trends International is in the retail business of selling personal computers, peripherals, and computer software primarily to businesses. At present, Computer Trends International, Inc. has its business location in Orlando, Florida. It plans to expand its business operations to include state, national, and international offices. Computer Trends International's Business Plan Recap Summary for 1984 and Business Plan 1984/85 states Respondent intends to build numerous stores in 1985 and 1986 to include an outlet in Tampa, Florida. The intended market of Computer Trends International is the small business market which it projects will make up 80 percent of its total sales.

   
   

5. There is no evidence that Computer Trends International utilized the words "Computer Trends" in its corporate name and trade/service marks with knowledge of the existence of Computer Trends, Inc., or any intent to infringe on its business.

   
   

6. Computer Trends, Inc., and Computer Trends International, Inc., sell many of the same brand name computers and peripherals. Although the Petitioner sells computers for home use, at least 50 percent of the market is in small business computers. The Petitioner has a statewide WATS line, advertises statewide, and has intentions of expanding to other cities on the lower west coast of Florida.

   
   

7. An operator in the Tallahassee Office of the Division of Corporations, Department of State, was queried about informational trends by Cynthia Armstrong, Vice-President of Computer Trends, Inc. The operator asked Armstrong, "which one, Computer Trends or Computer Trends International?" This was the only credible evidence of incidents related to confusion of corporate names presented by the Petitioner.

   
   

8. The Petitioner and Respondent are both engaged in the retail sales of computers. The two corporations provide some of the same or similar types of goods and services. Both corporations use similar types of advertising media and maintain a substantial statewide business presence with an overlap of market area in the Tampa Bay area of Florida.

9. The trade/service mark of the two corporations have very little in common except the words "Computer Trends." The trade/service marks use different colors, different style type, and different logos. The likelihood of confusion between the two trade/service marks is minimal.

   
   

10. The two corporations while engaging in retail sales of computers and peripherals aim at different levels of the computer market place. The Petitioner's target market is home personal computers and personal computers utilized by small businesses. The target market for the Respondent is medium and large businesses using higher capacity personal computers.

    
    

    CONCLUSIONS OF LAW

    
    

11. This Recommended Order is entered pursuant to the authority of Section 120.57(1), Florida Statutes. The Department of State regulates the incorporation of businesses pursuant to Chapter 607, Florida Statutes. Section 607.024(1)(b), Florida Statutes provides that "a corporate name shall not be the same as or deceptively similar to the name of any other domestic corporation existing under the laws of the state." Section 1N-1.021(4), Florida Administrative Code, provides that the corporate name filed with the Department of State shall "not be the same as or deceptively similar to any existing corporate name." Rule 1N-1.04, Florida Administrative Code, defines a deceptively similar name. It provides that if a comparison of the names shows an apparent difference but that the difference is of such character that the names are likely to be confused by persons giving oral or written information to the Department of State, or confused by persons attempting to receive written or oral information from the Department of State, or would be confusing to judicial or law enforcement officers, or confusing to the general public or consumers that the names are deceptively similar.

    
    

12. Although the facts reveal that both corporations have been in business almost a year and that both corporations engage in similar businesses, there was no evidence of any confusion on the part of the general public, on the part of the Department of State, or on the part of anyone seeking information on the two corporations.

    
    

13. The case law in Florida and the majority position in the country is that the use of similar generic words in corporate names is not deceptive. The court held in the case of Continental Insurance Company v. Continental Fire Association, 101 F. 255 (5th Circuit 1900) that Continental Insurance Company had no exclusive right to use the word "Continental" in the name of an insurance company although both companies competed in the same state in the sale of fire insurance policies because there was no attempt to deceive the public as to the identity of the two companies and no deception in fact had been demonstrated. Similar results were reached in the case of Majestic Manufacturing Company v. Majestic Electric Appliance Company, Inc., 172 F. 2d 862 (6th Circuit 1949) in which the court held that the trademark and tradename "Majestic" was not so strong a word or mark that it would be afforded protection. Both "computer" and "trends" are generic words which are not "strong" words. Therefore, in the absence of any evidence of existing confusion and in the absence of any evidence of any intent to infringe upon the corporate name of Petitioner, there is no evidence that the two corporate names are deceptively similar.

    
    

14. Both parties submitted posthearing findings of fact, which were read and considered. Those findings not incorporated herein are found to be subordinate, cumulative, immaterial, unnecessary, or not supported by the evidence.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED:

That the Department of State should dismiss the petition.

DONE and RECOMMENDED this 11th day of March, 1985 in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1985.

COPIES FURNISHED:

S. Thomas Padgett, Esquire Post Office Box 737

Tampa, Florida 33601

Robert E. Mansback, Jr., Esquire Post Office Box 3000

Orlando, Florida 32802

Docket for Case No: 84-003201

Orders for Case No: 84-003201