STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GRO MOR CO., INC., )

)

Petitioner, )

)

vs. ) CASE NO. 82-3033

) GRO-MORE FARM SERVICE CENTER, ) INC., and DEPARTMENT OF STATE, ) DIVISION OF CORPORATIONS, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative

Hearings, by its duly designated Hearing Officer, William B. Thomas, held a formal hearing in this case on April 1, 1983, in Gainesville, Florida. No transcript was ordered, but the parties requested and were allowed 30 days after the hearing to submit proposed findings of fact and conclusions of law. Those filed by the Petitioner have been considered. Where not adopted, they were found not to be supported by the weight of the evidence, and have thus been rejected. Nothing has been received from the Respondents.

APPEARANCES

For Petitioner: David H. Galloway, Esquire

Post Office Box 1119 Plant City, Florida 33566

For Respondent: George J. Ellis, Jr., Esquire Gro-More Farm 1721 Memorial Park Drive Service Center, Inc. Jacksonville, Florida 32204

For Respondent: None Department of State, Division of Corporations

The issue to be resolved is whether the names Gro Mor Co., Inc. and Gro- More Farm Service Center, Inc. are so deceptively similar as to require that Gro-More Farm Service Center, Inc. amend its Articles of Incorporation and

registration so as to reflect another name. In support of the contention of Gro Mor Co., Inc. that the two corporate names are deceptively similar, it presented the testimony of its vice-president/general manager, and five exhibits which were received in evidence. Two representatives of Gro-More Farm Service Center, Inc. testified in opposition.

FINDINGS OF FACT

1. The Petitioner, Gro Mor Co., Inc., has been engaged in the fertilizer, seed and pesticide business in Florida since approximately the year 1933.

2. On January 2, 1958, the Department of State issued to the Petitioner Charter No. 208744 permitting the use of the corporate name Gro Mor Co., Inc.

   
   

3. In 1968 the Petitioner registered "Gro Mor" as a trademark with the Florida Department of Agriculture, and it now has some 265 registered fertilizer mixes which are protected under the "Gro Mor" trademark, in addition to approximately 20 registrations of unmixed materials.

   
   

4. Gro Mor Co., Inc. has annual gross revenue of approximately 1.1 million dollars. It is presently operating in 11 Florida counties, some of which overlap with counties where Gro-More Farm Service Center, Inc. does business.

   
   

5. On November 7, 1980, the Department of State issued Charter No. F04615 to the Respondent, permitting the use of the corporate name Gro-More Farm Service Center, Inc.

   
   

6. Although Gro Mor Co., Inc. and Gro-More Farm Service Center are both in the fertilizer business, they do not compete directly with each other because the product mix of the two companies is different. Gro-More Farm Service Center, Inc. is a custom-blend fertilizer plant, and in general each company has its own customers for its own products. On occasion, however, Gro-More Farm Service Center, Inc. has done business with some companies which also deal with Gro Mor Co., Inc.

   
   

7. Sometime in 1980, the representative from Gro Mor Co., Inc. became aware that the Respondent was doing business as Gro-More Farm Service Center, Inc. Since 1980, the Petitioner has received four invoices which should have been directed to the Respondent, and one invoice which was received late because it was mailed to the Respondent instead of to the Petitioner. These invoices were introduced and received in evidence; other instances of customers misdirecting invoices have been disregarded as self-serving assertions not corroborated by evidence that is available to the Petitioner. Moreover, the Petitioner admitted that it has regularly received properly addressed invoices from the same firms which sent the misdirected invoices to Gro Mor Co., Inc.

   
   

8. On one occasion when the Petitioner's representative requested information on the Petitioner company from the Department of Agriculture, he received information on both Gro Mor Co., Inc. and Gro-More Farm Serviced Center, Inc. No evidence was presented to indicate that this happened more than once.

   
   

9. When Gro-More Farm Service Center, Inc. was in the incorporation process, the attorney for the company was directed to select a name and draw up the charter. The incorporators had no knowledge of the existence of Gro Mor Co., Inc. Since the corporate purpose was to engage in the fertilizer business, the name Gro-More Farm Service Center, Inc. was selected because fertilizer makes crops grow more.

   
   

10. In the two or more years the Respondent has been operating as Gro-More Farm Service Center, Inc., its representatives cannot recall getting invoices which should have been directed to Gro Mor Co., Inc.

    CONCLUSIONS OF LAW

    
    

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

    
    

12. Section 607.024(1)(b) , Florida Statutes, 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 corporation existing under the laws of this state or any foreign corporation authorized to transact busi- ness 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 registration of its corporate name as provided in this act

       
       

13. By Rule Section IN-1.04, Florida Administrative Code, the Department of State has defined "deceptively similar." This rule states:

    
    

    Corporate names are deceptively similar if on comparison of the names, written as above provided, there is an apparent difference,

    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 Se- cretary of State, or by judicial or law en- forcement officers, or by persons in the general public who are attempting to iden- tify 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 information concerning only one of the names which might, on comparison be found to be deceptively similar. Such names shall be rejected by the Division and shall not be filed.

    
    

14. In addition, Rule Section IN-1.05(8), Florida Administrative Code, prohibits the use of a corporate name which is "the same as or deceptively similar to a trademark" filed with the Division of Corporations. Thus, under these rules and the above statute, the names Gro Mor Co., Inc. and Gro-More Farm Service Center, Inc., although similar, must be deceptively similar so as to create confusion, in order to require the latter to adopt a new corporate name.

15. There is no evidence to show that the apparent differences between the two corporate names in this case are likely to be confused by persons giving information to the Department of State, or by persons in the Department who are attempting to enter into or retrieve information from the records of that office. There is no evidence of confusion among judicial or law enforcement officers. The only evidence of any confusion that exists in the general public or among customers dealing with the two corporations is in the form of five invoices which were misdirected over the course of more than two years. No customers or members of the general public were presented to testify on the issue of confusion between the similar corporate names, nor did the Petitioner offer as evidence any written complaints to support its contention that confusion exists. Evidence such as this should be presented in order to demonstrate that the two corporate names are likely to be confused; confusion cannot be inferred.

    
    

16. Consequently, there is not sufficient evidence to find that the two corporate names involved in this case are deceptively similar, requiring a change in the name of Gro-More Farm Service Center, Inc.

RECOMMENDATION

From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petition of Gro Mor Co., Inc. be DENIED.

THIS RECOMMENDED ORDER entered this 9 day of June, 1983, in Tallahassee, Florida.

WILLIAM B. THOMAS, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

Filed with the Clerk of the Division of Administrative Hearings this 9th day of June, 1983.

COPIES FURNISHED:

David H. Galloway, Esquire Post Office Box 1119

Plant City, Florida 33566

George J. Ellis, Jr., Esquire 1721 Memorial Park Drive Jacksonville, Florida 32204

William S. Stevens, III, Esquire General Counsel

Department of State The Capitol

Tallahassee, Florida 32301

Docket for Case No: 82-003033

Orders for Case No: 82-003033