n

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TRAVEL UNLIMITED, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 81-1774

)

TRAVEL UNLIMITED OF HARBOR )

BEACH, INC. and DEPARTMENT )

OF STATE, DIVISION OF )

CORPORATIONS, )

)

Respondents )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on October 6,

1981, in Miami, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Maurice Rosen, Esquire

Interama Professional Building Suite 112

16666 Northeast 19th Avenue North Miami Beach, Florida 33162

For Respondents: Robert Kupchak, Vice President Travel Unlimited Travel Unlimited of Harbor

of Harbor Beach, Inc. Beach, Inc.

2198 Southeast 17th Street Fort Lauderdale, Florida 33316

Department of State: Did not appear.

ISSUE

The issue in this case is whether there is a conflict between the corporate names of Travel Unlimited, Inc. and Travel Unlimited of Harbor Beach, Inc.

FINDINGS OF FACT

1. The Petitioner, Travel Unlimited, Inc., is a travel agency doing business in the northern part of Dade County and southern part of Broward County, State of Florida. The corporation, which was chartered in 1973, is physically located in North Miami Beach, Florida.

   
   

2. Petitioner has extensively advertised its travel business for several years in the "Miami Herald," a newspaper of wide circulation in Dade and Broward Counties. It also has circulation in Palm Beach County, Florida.

3. The Respondent, Travel Unlimited of Harbor Beach, Inc., was chartered in December of 1980, and is located approximately 15 to 20 miles from Petitioner in a heavily populated metropolitan area. Telephone calls are toll free between the Hollywood area of Broward County and northern Dade County. In addition to its northern Dade County telephone numbers, Petitioner has maintained for years at additional expense an additional telephone line into Fort Lauderdale. This telephone line provides toll free service between northern Broward County and northern Dade County.

   
   

4. A great deal of confusion has been created by the Respondent travel agency's use of the name Travel Unlimited of Harbor Beach, Inc. Numerous telephone calls have been received by Petitioner which were intended for that Respondent. Mail from various airlines has been received by Petitioner which was intended for that Respondent. An employee of Petitioner was almost denied the right to special agent discounts because an airline confused the Petitioner with the Respondent travel agency despite their different IATA numbers. It appears that in spite of their IATA numbers being different, confusion occurs even with professionals in the industry.

   
   

5. The parties submitted proposed findings of fact, memoranda of law and proposed recommended orders which were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this order they have been specifically rejected as being irrelevant or not having been supported by the evidence.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Department of State is charged with administration of corporation laws of the State of Florida. Section 607.027(3), Florida Statutes, provides:

   
   

   The Department of State may revoke

   any reservation if, after a hearing, it finds that the application therefor or any transfer thereof was not made in good faith.

   
   

7. Section 607.024(1)(b), Florida Statutes, provides that a corporate name shall not be the same or deceptively similar to the name of any domestic corporation existing under the laws of this state.

   
   

8. The record shows that both businesses operate in the same service area, and confusion between the two corporations exists with the public as well as with professionals within the travel business because of the similarity of their names.

   
   

9. Florida generally has adopted the rule that the addition of a geographical name to otherwise qualify or identify identical or similar names is sufficient to avoid confusion to the public. See United Life Insurance Co. v. United Insurance Co., 70 So.2d 310 (Fla. 1954). In that case the court found there were two separate client groups and still required the company seeking access to the Florida market to differentiate itself by the addition of "of Illinois" to its name.

10. In the instant case, both agencies actively seek clients in the same service area. The identification of one of the corporations by a geographic denomination is not sufficient to place the public on notice that they are doing business with a separate corporate entity as opposed to a branch office of the same corporation.

    
    

11. Although there is no evidence of willful encroachment upon Petitioner's name by the Respondent travel agency, clearly the confusion caused by that Respondent's similar name must be eliminated. The Department of State has authority to revoke the reservation of the Respondent travel agency's corporate name, and should do so.

    
    

12. The revocation of a corporate name creates a burden upon a new business just becoming established. This type of corporate name conflict is increasing. Such increase in corporate name conflict indicate the appropriateness of the agency's review of its procedures for reserving corporate names and permitting incorporation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Department of State revoke the reservation for the corporate name Travel Unlimited of Harbor Beach, Inc.

DONE and ORDERED this 25th day of November, 1981, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-967

Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 1981.

COPIES FURNISHED:

Maurice Rosen, Esquire

Suite 112, Interama Professional Building

16666 NE 19th Avenue

North Miami Beach, Florida 33162

Robert Kupchak, Vice President Travel Unlimited of Harbor Beach, Inc.

2198 SE 17th Street

Fort Lauderdale, Florida 33316

Stephen Nall, Esquire

Office of the General Counsel Department of State

The Capitol

Tallahassee, Florida 32301

George Firestone, Secretary Department of State

The Capitol

Tallahassee, Florida 32301

Docket for Case No: 81-001774

Orders for Case No: 81-001774