STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PORT ST. LUCIE REALTY, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 83-1036

) PSL REALTY, INC., and DEPARTMENT ) OF STATE, DIVISION OF CORPORATIONS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on October 12, 1983, in Fort Pierce, Florida.

APPEARANCES

For Petitioner: James F. Gray, Esquire

220 South Second Street Fort Pierce, Florida 33450

For Respondent: Douglas E. Gonano, Esquire

Citizens Federal Building

1600 South Federal Highway, Suite 200 Fort Pierce, Florida 33450

STATEMENT OF THE ISSUE

The issue presented for decision herein is whether or not the Respondent's, PSL Realty, Inc., registered name is deceptively similar to Petitioner's registered name, Port St. Lucie Realty, Inc. Ultimately, Petitioner seeks an Order cancelling Respondent's registered name.

FINDINGS OF FACT

Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings.

1. On November 20, 1972, Respondent, Department of State, Division of Corporations, issued Charter number 413260 permitting the use of the corporate name Port St. Lucie Realty, Inc., to the Petitioner in reliance on Chapter 608, Florida Statutes (1971).

   
   

2. On March 11, 1983, Respondent, Department of State, Division of Corporations, issued Charter number G27456 permitting the use of the corporate name PSL Realty, Inc., to the Respondent in reliance on Chapter 607, Florida Statutes.

3. Since Petitioner's incorporation during 1972, Petitioner has used the acronym PSL in advertising signs for more than ten (10) years. Since approximately April, 1983, several calls and inquiries have been made to brokers and salesmen in the Petitioner's office respecting rental properties.

   Petitioner has listed rentals on an extremely limited basis. Since Petitioner became aware of Respondent, PSL's, incorporation during approximately March 1983 Petitioner has stopped using the logo PSL on advertising signs, etc., pending the outcome of this administrative hearing. In its advertising, Petitioner always lists its phone number. Additionally, there have been isolated instances of misdeliveries by United Parcel Service and fielding of complaints by a local homeowner's association known as Windmill Point. (Testimony of Ann Chambers, Petitioner's President and a real estate broker, and Mrs. Robert Nesbitt, a member of the Property Owner's Association of Windmill Point.)

   
   

4. Since Respondent, PSL, became registered on March 11, 1983, it has only used specific blue and white business cards and its phone number is listed correctly on all advertising materials. Respondent, PSL's, salesmen do not misrepresent or pass themselves off as being representatives of any real estate company other than as a representative of PSL Realty, Inc. (Testimony of Kenneth Benzenhafer, Incorporator, Registered Agent and Salesman for Respondent; Harold P. Partenheimer, Vice-President and Broker for PSL Realty, Inc.; and the deposition testimony of Bertha Hensley [Petitioner's Exhibit A].)

   
   

5. The acronym, PSL, is used extensively by commercial advertisers as well as local community service and governmental agencies including the City Council.

   
   

6. Petitioner conceded that it has not attempted to seek any protection by means of consequent "third-party" and/or constructive notice available under the trademark service mark collective mark statute, i.e. Chapter 495, Florida Statutes, for the acronym PSL. Nor has there been any showing that the Petitioner has made filings under the fictitious name statutes, Section 865.09, Florida Statutes. Therefore, by using the acronym PSL in its advertising materials, it appears that any confusion has been largely caused by the Petitioner in this cause.

   
   

7. The name Port St. Lucie Realty, Inc., is not deceptively similar to the name PSL Realty, Inc.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

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

   
   

   1. The corporate name:

      (b) Shall not be the same as nor deceptively similar to, the name of any domestic corporation 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 as in

      effect the registration of this corporate name as provided in this act, . . .

      
      

      Additionally, the Department of State has defined "deceptively similar" by rule. Section 10-1.04, Florida Administrative Code.

      
      

10. An examination of the facts herein when contrasted with the above statutory and rule provisions reveals that the corporate name Port St. Lucie Realty, Inc., is not deceptively similar to PSL Realty, Inc. Admittedly, there has been some confusion based on the similarity of the names, however this similarity does not rise to the level of "deceptive similarity" as contemplated in Rule Section 10-1.04, Florida Administrative Code, or the guiding statute, Section 607.024(1)(b), Florida Statutes (1981). Furthermore, the confusion has been created in large part by the Petitioner's use of the acronym "PSL." Petitioner's use of that acronym in the circumstances herein did not bestow on it any rights or other protections under Section 607.024(1)(b), Florida Statutes (1981).

RECOMMENDATION

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

That the Secretary of State enter a Final Order denying Petitioner's request for the relief requested in the form of requiring the Respondent, PSL Realty, Inc., to amend its articles of incorporation and registration with the Department of State to reflect a name other than as registered, PSL Realty, Inc.

DONE AND ENTERED this 8th day of April 1984 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 9th day of April 1984.

COPIES FURNISHED:

James F. Gray, Esquire

220 South Second Street Ft. Pierce, Florida 33450

Douglas E. Gonano, Esquire Citizens Federal Building Suite 200

1600 South Federal Highway Ft. Pierce, Florida 33450

Carole Barice, Esquire Department of State The Capitol

Tallahassee, Florida 32301

Docket for Case No: 83-001036

Orders for Case No: 83-001036