STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DUPONT REALTY INVESTMENT, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1352

)

DUPONT REALTY, INC., and ) SECRETARY OF STATE, DIVISION ) OF CORPORATIONS, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a final hearing in this case on August 20, 1981, in Miami, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Charles M. Fahlbusch, Esquire

Weiner and Walton

2121 PonceDeLeon Boulevard, Suite 1040 Coral Gables, Florida 33134

For Respondent, Bob Silverang, Esquire Secretary of State, Secretary of State's Office Division of The Capitol

Corporations: Tallahassee, Florida 32301

For Respondent, Michael Blacker, Esquire Dupont Realty, 160 Northeast 40th Street Inc.: Miami, Florida 33136

ISSUES

Whether or not the corporate names Dupont Realty Investment Corporation and Dupont Realty, Incorporated, are deceptively similar to each other and, if so, whether or not pertinent rules and regulations of the Department of State require the latter chartered corporation to amend its Articles of Incorporation and registration to reflect a new name.

FINDINGS OF FACT

1. Based upon the testimony adduced at the hearing, the documentary evidence received and the entire record compiled herein, the following relevant facts are found.

2. Petitioner, Dupont Realty Investment Corporation, was issued charter No. 535008 on April 27, 1977. Petitioner is a for-profit corporation which has remained active since April of 1977.

   
   

3. Respondent, Dupont Realty, Inc., was issued charter No. 680928 on August 4, 1980, and has been permitted the use of that corporate name by Respondent, Secretary of State, Division of Corporations (Secretary) based on the Secretary's reliance on Chapter 607, Florida Statutes, and Rule Chapter 10- 1, Florida Administrative Code.

   
   

4. The Secretary takes the position that the Petitioner and Respondent, Dupont Realty, Inc., were properly granted name clearances inasmuch as there exists a major word difference within the style of their name. That is, the compound "Realty Investment" denotes something entirely different from "Realty." (Letter dated April 27, 1981, from D. W. McKinnon, Director, Division of Corporations, to Anthony R. LaRossa, Petitioner's registered agent.)

   
   

5. Petitioner, in urging that there is no difference in the subject corporate names, also points out that it has spent substantial monies in advertising; that the subject corporations are engaged in the same business (sale of real estate); are serving the same locality and are operating in the same postal areas. Using that criteria, and the guides set forth in Chapter 607.024, Florida Statutes, and Rule Chapter 10-1.04, Florida Administrative Code, Petitioner argues that Respondent, Dupont Realty, Inc.`s name is deceptively similar to its (Petitioner's) name.

   
   

6. Both corporations operate within Dade County and are engaged in the real estate business. Petitioner's salesmen answer their telephone in the abbreviated form "Dupont Realty." According to Charles Yaritz, a salesman, Petitioner's customers refer to it as "Dupont Realty." Petitioner claims that it has received telephonic inquiries of properties about which it has no knowledge. Salesman Yaritz admitted that its business activities are primarily that of the sale of commercial properties due to "high interest rates" which are now prevalent in the area. (Testimony of salesman Yaritz and Anthony R. LaRossa, salesman and registered agent/broker for Petitioner, respectively.)

   
   

7. Petitioner uses advertising signs which contain the caption "For Sale Dupont Realty Investment Corporation" and a telephone number. Petitioner also uses a silk screen which is different from any advertising legend used by Respondent, Dupont Realty, Inc. (See Petitioner's Exhibits 2 and 3.)

   
   

8. Robert Silverang, an employee of Respondent, Secretary of State, examines name requests pursuant to the authority contained in Chapter 607, Florida Statutes, and Rule Chapter 10-1, Florida Administrative Code. Messr. Silverang reiterated the Secretary's position that the word Investment is regarded as a major name change/difference, the existence of which permitted the Secretary to grant the subject corporate name clearance to Respondent, Dupont Realty, Inc. Messr. Silverang also offered the opinion that when there is a major name difference, locality is not considered as a factor in either granting or denying a name clearance.

   
   

9. Respondent, Dupont Realty, Inc., chose the name Dupont Realty because "Dupont" is her 1/ "legal" name. Respondent is engaged almost exclusively in the sale of residential property and caters to clientele consisting of approximately 95 percent French-Canadian.

10. In further support of its claimed "confusion," Petitioner referred to the fact that it received an order of checks intended for Respondent, Dupont Realty, Inc., and retained custody of same for approximately one (1) month prior to the hearing herein. (Petitioner's Exhibit 6.)

    
    

11. Respondent's property listings are in areas different from the areas in which Petitioner lists and sells property. Respondent advertises on signs approximately twice the size of the signs utilized by Petitioner. Respondent, Dupont, has no phone listing in the Dade County telephone directory and has not been advised by her customers of any "confused" calls. Both firms have spent approximately the same amount of funds for advertising purposes. However, the two corporations use different medians to carry out their advertising. Thus, Petitioner caters to publications which attempt to reach the commercial client, whereas Respondent, Dupont Realty, Inc., aims at reaching French-Canadians who are primarily interested in the purchase and sale of residential properties.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes (Supp. 1980).

    
    

13. Section 607.024(1)(b), Florida Statutes (1979), which is part of the Florida General Corporation Act, provides in part that:

    
    

    1. The corporate name:

       * * *

       (b) Shall not be the same as, or deceptively similar to the name of any domestic corpora- tion existing under the laws of this state or any foreign corporation authorized to transact business in this state, a name the exclusive right to which is, at the time, reserved in the manner provided in this act, or the name of a corporation which has in effect a regi- stration of its corporate name as provided in this act . . . .

       
       

14. By Rule Section 10-1.04, Florida Administrative Code (1980), the Department of State has defined "deceptively similar." The rule states:

    
    

    Corporate names are deceptively similar if on comparison of the names, written as above pro- vided, there is an apparent diffence, but the difference or differences are of such character that the names are likely to be confused by persons giving oral or written information to this office, or by persons in the Office of the Secretary of State who are attempting to enter into or retrieve from the records of this office corporate information, or by persons attempting to receive written or oral information from

    the Office of the Secretary of State, or by judicial or law enforcement officers, or by persons in the general public who are attempting to identify a corporation solely

    on the basis of written or oral communications

    concerning its name, or by consumers who could be easily confused by similar names Confusion can exist even though one or both parties to an oral or written communication has infor- mation concerning only one of the names which might, on comparison be found to be decep- tively similar. Such names shall be rejected by the Division and shall not be filed.

    
    

15. Under the above statute and rule, the corporate name Dupont Realty Inc., chartered August 4, 1980, is not deceptively similar to Petitioner's name, Dupont Realty Investment Corporation. At the outset, the Secretary has administratively determined that the compound "Realty Investment" denotes something entirely different from "realty." Additionally, while a blanket general statement can be made that the subject corporations are engaged in the same business in the same area, a closer examination of the facts herein reveal that the subject corporations, while engaged in the business of selling real estate in Dade County, are in actuality engaged in selling different kinds of real estate, i.e., commercial versus residential to corporate prospects versus individual French-Canadian prospects.

    
    

16. The subject corporations also use different advertising media. While Petitioner introduced an order for checks which were intended for Respondent and were misdelivered to Petitioner, that misdelivery was not sufficient to rise to the level of deceptive similarity as envisioned by Rule Section 10-1.04, Florida Administrative Code. All the evidence of any confusion appears to rest only in the mind of Petitioner. Here, unlike the situation that existed in Dunes of Panama Association, Inc. and Dunes of Panama Rental Management Association, Inc., wherein the two corporations were offering exactly the same rental service to condominium owners, the subject corporations therein are not so engaged. And here, unlike the situation that existed in Grove Towers, Inc. v. Towers in the Grove, Inc., 3 FALR 285A (Florida Secretary of State Final Order; January 15, 1981) there was no clear demonstration of any confusion by Petitioner's potential customers due to the claimed similarity of the corporate names. And here, unlike the situation that existed in Florida Hotel and Motel Association, Inc. v. Florida Hotel and Motor Hotel Association, Inc. and Secretary of State,

3 FALR 283A (Florida Secretary of State Final Order; December 29, 1980), there is no confusion by the public; the two organizations do not have similar goals and objectives and are not competing for the same group of prospective clients.

Based on the foregoing, it is concluded that the name Dupont Realty Investment Corporation is not deceptively similar to the name Dupont Realty, Inc., and the, grant of the same is permitted by Section 607.024(1)(b), Florida Statutes (1979) 2/

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the grant of the name Dupont Realty, Inc., to Respondent

be UPHELD in that said name is not deceptively similar to that of Petitioner.

DONE and RECOMMENDED this 20th day of October, 1981, in Tallahassee, Florida.

JAMES E. BRADWELL

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 20th day of October, 1981.

ENDNOTES

1/ Maud Dupont is the Director and President of Dupont Realty, Inc.

2/ In view of this conclusion, further discussion regarding what action most betaken by the latter chartered corporation to amend its Articles of Incorporation and registration to reflect a new name is unnecessary.

COPIES FURNISHED:

Charles M. Fahlbusch, Esquire Weiner and Walton

2121 Ponce de Leon Boulevard Suite 1040

Coral Gables, Florida 33134

Bob Silverang, Esquire Secretary of State's Office The Capitol

Tallahassee, Florida 32301

Michael Blacker, Esquire

160 N.E. 40th Street Miami, Florida 33136

Honorable George Firestone Secretary of State

The Capitol

Tallahassee, Florida 32301

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF STATE

DUPONT REALTY INVESTMENT,

Petitioner,

vs. CASE NO. 81-1352

DUPONT REALTY, INC., and SECRETARY OF STATE, DIVISION OF CORPORATIONS,

Respondents.

/

FINAL ORDER

This case was heard by a duly designated Hearing Officer of the Division of Administrative Hearings pursuant to Chapter 120, Florida Statutes. Pursuant to said hearing, the Hearing Officer submitted a Recommended Order which included Findings of Fact and Conclusions of Law. Furthermore, in accordance with Section 120.57(1)(b)(8), Florida Statutes, the Department of State has allowed each party at least ten days in which to submit written exceptions to the Recommended Order; no such written exceptions were filed. Therefore, based upon said Recommended Order and on the evidence presented

IT IS ORDERED THAT:

The Recommended Order of the Hearing Officer is hereby adopted and that the grant of the name Dupont Realty, Inc. to Respondent is upheld since said name is not deceptively similar to that of Petitioner.

Thomas E. Gardner

Assistant Secretary of State

I hereby certify that a copy of the foregoing Final Order has been sent by

U.S. Mail to Charles M. Fahlbusch, Esquire, Suite 1040, 2121 Ponce de Leon Boulevard, Coral Gables, Florida 33134 and Michael H. Blacker, Esquire, 160 Northeast 40 Street, Miami, Florida 33136 this 23rd day of November 1981.

Stephen Nall, General Counsel Department of State

The Capitol

Tallahassee, Florida 32301

(904) 488-3680

Docket for Case No: 81-001352

Orders for Case No: 81-001352