STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CACHET INTERNATIONAL, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 81-986RX

)

DEPARTMENT OF STATE, STATE )

OF FLORIDA, )

)

Respondent. )

)

FINAL ORDER

This challenge to respondent's Rule 10-1.05(8), Florida Administrative Code, which is brought pursuant to Section 120.56, Florida Statutes (1979), arose out of related proceedings instituted pursuant to Section 120.57, Florida Statutes (1979), viz., Cachet International, Inc. v. Department of State, No.

80-2081. On April 24, 1981, the rule challenge came on for hearing in Tallahassee, Florida, before the Division of Administrative Hearings, by Hearing Officer Robert T. Benton, II, duly designated by order of assignment dated April 8, 1981. Petitioner waived appearance at the final hearing. The parties were represented by counsel:

APPEARANCES

For Petitioner: Jesus Sanchelima, Esquire

2138 Biscayne Boulevard, Suite 204

Miami, Florida 33137

For Respondent: William J. Gladwin, Esquire

Department of State The Capitol, Room 1801

Tallahassee, Florida 32301

The rule provision petitioner challenges states:

A corporate name shall not be the same as

or deceptively; similar to a trademark filed with this Division as provided in the Florida Attorney General's Opinion number 059-38 unless the corporation and trademark owners are the same. Rule 10-1.05(8), Florida Administrative Code. (Semicolon in original.)

In its petition to determine Rule 10-1.05(8), Florida Administrative Code, invalid, petitioner requests that "the facts and stipulations of . . . Case No.: 80-2081" be "incorporat[ed] by reference" into the present proceedings.

Respondent did not oppose this request at the final hearing or at any other time, and the request is hereby granted. Accordingly, stipulations entered into and evidence adduced in Case No. 80-2081 are, in addition to the testimony of

Ms. Nettie Sims adduced at the final hearing in the present case, the basis for the following

FINDINGS OF FACT

1. On or about September 30, 1980, petitioner mailed its application to respondent for registration of the trademark "Cachet". Accompanying the application were a check for fifteen dollars ($15.00) and shoe insoles stamped "Cachet", each bearing an escutcheon and the legend "MADE IN SPAIN".

   
   

2. On October 14, 1980, respondent returned petitioner's application, declining to register "Cachet" as a trademark in the absence of consent by Cachet, Inc., an unrelated active Florida corporation for profit with a Miami address, duly registered with respondent. Cachet, Inc. has not registered any trademark with respondent, and does not sell shoes.

   
   

3. Ms. Nettie Sims, chief of respondent's bureau of corporate records and an employee of respondent for 27 years, testified that this action was in keeping with respondent's policy going back as far as she could remember.

   
   

   CONCLUSIONS OF LAW

   
   

4. Petitioner has standing to bring this challenge to Rule 10-1.05(8), Florida Administrative Code, inasmuch as respondent has relied on the rule as a ground for denial of petitioner's application for trademark registration. Professional Firefighters of Florida, Inc., v. Department of Health and Rehabilitative Services, No. 00-231 (Fla. 1st DCA, April 21, 1981); 4245 Corporation v. Division of Beverage, 348 So.2d 934 (Fla. 1st DCA 1977). This is so even though the rule might arguably be interpreted to cover only the situation in which a corporation or its organizers sought to reserve or register a corporate name similar to an existing trademark. This was the situation addressed in Attorney General's Opinion 059-38, incorporated by reference in Rule 10-1.05(8), Florida Administrative Code. But respondent's interpretation of its own rules is entitled to considerable weight. State ex rel. Biscayne Kennel Club v. Board of Business Regulation, 276 So.2d 823 (Fla. 1973); Miller

   v. Agrico Chemical Co., 383 So.2d 1137 (Fla. 1st DCA 1980). At the 120.57 hearing in Case No. 80-2081, respondent relied on Rule 10-1.05(8), Florida Administrative Code, as authority for denying petitioner's trademark application.

   
   

5. In challenging Rule 10-1.05(8), Florida Administrative Code, petitioner has the burden to demonstrate that respondent has, by adopting the rule,

   
   

   exceed[ed] its authority; that the requirements of a rule are not appropriate to the ends specified in the legislative act; that the requirements contained in the rule are not reasonably related to the purpose of the enabling legislation or that the . . . rule or the requirements thereof are arbitrary or capricious. Agrico Chemical Co. v. State Department of Environmental Regulation, 365 So.2d 759, 763 (Fla. 1st DCA 1978).

   
   

   Petitioner has the burden to establish that "the proposed rule is an invalid exercise of delegated legislative authority." Section 120.54(4)(a), Florida Statutes (1979).

6. Petitioner contends that Rule 10-1.05(8), Florida Administrative Code, is inconsistent with the whole scheme of Chapter 495, Florida Statutes (1979), governing registration of trademarks and service marks. Respondent argues that the challenged provision is authorized by Section 495.021(1)(b), Florida Statutes (1979). Neither party seems concerned about the circumstance that Rule 10-1.05(8), Florida Administrative Code, purports to implement Section 607.024, Florida Statutes (1979), and that no provision of Chapter 495, Florida Statutes, is cited as specific rulemaking authority. See Sections 120.55(1)(b) and 120.54(1), Florida Statutes (1979). In any event, petitioner in no way predicates its challenge on this circumstance.

   
   

7. Administrative rules "must be consistent with the provisions," DeThorne

v. Beck, 280 So.2d 448, 449 (Fla. 4th DCA 1973), of the statutes they implement. Without citing any specific provision, petitioner contends that Florida's trademark statutes allow registration of a trademark similar to or identical with a corporate name so long as the application for registration is not in competition with the corporation. See Sun Coast v. Shupe, 52 So.2d 805 (Fla. 1951). But the statutory provision respondent invoked at the final hearing as authority for promulgation of Rule 10-1.05(8), Florida Administrative Code, reads as follows:

A mark by which the goods or services of any applicant for registration may be distinguished from the goods or services of others shall not be registered if it:

* * *

(b) Consists of . . . matter which may . . . falsely suggest a connection with persons, corporations, firms, institutions

Section 495.021(1), Florida Statutes (1979).

This is sufficient authority for a rule barring registration of a trademark which is the same as or deceptively similar to the name of an unrelated corporation.

It is, accordingly, ORDERED:

The petition to determine invalid Rule 10-1.05(8), Florida Administrative Code, is denied.

DONE and ENTERED this 15th day of May, 1981, in Tallahassee, Leon County, Florida.

ROBERT T. BENTON, II

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 15th day of May, 1981.

COPIES FURNISHED:

Jesus Sanchelima, Esquire Suite 204

2138 Biscayne Boulevard

Miami, Florida 33137

William J. Gladwin, Esquire Department of State

The Capitol, Room 1801 Tallahassee, Florida 32301

The Honorable George Firestone Secretary of State

The Capitol

Tallahassee, Florida 32301

Docket for Case No: 81-000986RX

Orders for Case No: 81-000986RX