STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ZELLWIN FARMS COMPANY, )
)
Petitioner, )
)
vs. ) CASE NO. 83-1767
)
ZELLWOOD FARMS, INC. & )
DIVISION OF CORPORATIONS, )
)
Respondent. )
)
RECOMMENDED ORDER
This case came on for formal hearing, as noticed before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings on January 11, 1984, at Zellwood, Florida. The appearances were as follows:
APPEARANCES
For Petitioner: Lloyd T. Ashbury, Esquire
Suite 2207 Independent Square One Independent Drive Jacksonville, Florida 32202
For Respondent: Michael P. McMahon, Esquire
AKERMAN, SENTERFITT and EIDSON
Post Office Box 231 Orlando, Florida 32802
This case arose by a request for formal proceeding pursuant to Section 120.57(1), Florida Statutes (1981) filed by Petitioner, Zellwin Farms Company, wherein it alleges that the adoption of the corporate name Zellwood Farms, Inc. by the Respondent, was deceptively similar to the corporate name of Zellwin Farms Company. Petitioner thus alleges that such a deceptively similar name causes serious disruption in the conduct of its business due to incidents of confusion caused by Respondent's adoption of that name. By their prehearing stipulation filed in this proceeding, the parties have agreed that certain instances of confusion relating to the similarity of corporate names have occurred, but disagree as to the ultimate legal effect of those incidents, and the parties agree that Section 607.024, Florida Statutes applies to this proceeding, as well as Rule 1N-104, Florida Administrative Code.
At the hearing the Petitioner presented the testimony of Kenneth Jorgensen, the president and part-owner of Zellwin Farms Company; Delores Miller, a secretarial employee of the Petitioners Hortense Parker, a postal employee at the Zellwood post office; Margaret Sykes, the postmistress at Zellwood, Florida; William Ellington, the Petitioner's assistant purchasing agent and James Staley, the Petitioner's comptroller and secretary-treasurer. Additionally, the Petitioner presented 11 exhibits, all of which were admitted into evidence. The
Petitioner also presented the depositions of Kenneth Floyd Jorgensen and James McDonald Staley which were admitted into evidence.
The Respondent, Zellwood Farms, Inc. presented witnesses Sandra K. Whatley, a secretarial employee of Zellwood Farms, Inc., Robert Brown, its president, and the depositions of Robert Brown, Carol Torman, Dale Alton Davis, Lowell E. Swanberg, Paul Bogardus, and Roy Messer. Respondent also presented five exhibits, all of which were admitted into evidence.
The issue to be resolved concerns whether the identified and agreed-upon incidents of confusion by third parties regarding communications with the two companies are of such frequency, magnitude and quality as to constitute proof or a deceptive similarity in the corporate names of the parties as contemplated by Section 607.024, Florida Statutes, and Rule 1N-104, Florida Administrative Code.
At the conclusion of the proceedings the parties requested an opportunity to file proposed findings of fact and conclusions of law and memoranda, which request was granted. All proposed findings of fact and conclusions of law and memoranda were timely filed on or before January 31, 1984. In its response to the Hearing Officer's pretrial order filed on October 19, 1983, the Respondent, Division of Corporations, acknowledged its issuance of corporate charters to the subject corporations and disclaimed any further Interest in the proceeding and did not participate at the hearing.
FINDINGS OF FACT
The Petitioner, Zellwin Farms Company, was incorporated under the laws of the State of Florida in 1947 and has continually conducted its business under that name in Zellwood, Florida. Zellwin Farms Company is engaged in the production of field produce crops including carrots, radishes, cauliflower, sweet corn, and other crops grown in open fields. It is not engaged in the culture and propagation of mushrooms and has received no customer inquiries by mail or telephone regarding the availability of mushrooms.
The Respondent, Zellwood Farms, Inc., was organized under the laws of the State of Florida in March, 1983. Its sole business Involves a single agricultural product, the production of mushrooms, under controlled climate conditions, indoors, whereby the temperature, humidity, soil, water content and light levels are fully controlled. It produces only mushrooms and has no current plans to expand to other agricultural products, particularly open field crops which is the sole area of agricultural business engaged in by the Petitioner, Zellwin Farms Company. It has indicated an interest in the future In marketing a specialty agricultural product, bean sprouts, which Zellwin Farms does not produce and has expressed no Intention to produce in the future. Zellwood Farms, Inc. does not advertise the raising or production of field crops nor does it advertise its intent to so broaden its business in the future.
The parties agree that, since the incorporation of Zellwood Farms, Inc. in 1983, that items of mail, telephone calls and some deliveries of goods have been misdirected between the two companies. During the same period of time however, there have been many thousands of items of mail, telephone calls and deliveries of goods correctly directed to the two companies, without misdirection difficulties of any type. Zellwin's comptroller, James Staley, in his deposition, established that misdeliveries of goods and invoices have occurred about twice per week on the average. In that connection, Zellwin, the Petitioner, receives about 200 deliveries per month on the average. Telephone
calls and mail misdirections appear to have occurred on approximately the same relatively minor scale initially, but are decreasing.
Records maintained by Zellwood, the Respondent, in evidence, likewise show a small percentage of such misdirections of all telephone calls, mail and goods deliveries it receives. Between October 22, 1983, and January 3, 1984, Zellwood Farms, Inc. received approximately 2,200 pieces of mail. Only seven of these were misdirected, that is, not intended for the Respondent, and of those seven, six of the 2,200 appear to have been intended for Zellwin Farms Company, the Petitioner. Deliveries of goods to Zellwood Farms, Inc. amounted to 223 shipments between October 17, 1983, and January 3, 1984. Only six of these were misdirected. There were 4,170 telephone calls received by Zellwood Farms, Inc. between October 18, 1983, and January 3, 1984. Fifteen of these calls were misdirected, that is, not intended by the caller for Zellwood Farms, Inc. Only three of these 15 misdirected calls were specifically intended for the Petitioner, Zellwin Farms Company.
The parties agreed that they had discovered no harmful effect on relations with their regular customers in the two separate markets which they serve. Postal employee Hortense Parker (testifying for Petitioner) established that in part, the instances of misdirected mail which have occurred are due to the proximity and identical appearance of the post office boxes of the two parties at her post office, which are only two feet apart. Thus, any similarity of the names of the two parties was not shown to be the sole reason for misdirected mail. It was not demonstrated that the misdirected mail or goods shipments resulted from confusion in the minds of the customers or consumers of the two companies' products which would cause a harmful effect on sales, revenues and customer relations, as opposed to possible confusion by suppliers of equipment or other third parties who are not customers or purchasers from either of the parties in the separate and distinct markets which they serve.
Both Zellwin Farms Company and Zellwood Farms, Inc. are substantial, large producers, having significant shares of the respective agricultural product markets they serve. They do not compete with each other for customers since the mushrooms grown by Zellwood Farms, Inc. and the field produce crops grown by Zellwin Farms Company are clearly directed to distinctly separate consuming markets.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of these Proceedings. Section 120.57(1), Florida Statutes (1981).
The controlling statute with regard to the above-stated issue in this proceeding is Section 607.024, Florida Statutes, which provide
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...(Emphasis supplied)
The Department of State has adopted rules defining the term "deceptively similar" and defining what is not to be considered deceptively similar.
Rule 1N-1.04, Florida Administrative Code, defines the term "deceptively similar" as follows:
Corporate names are deceptively similar if upon comparison of the names, or 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 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. Such names shall be rejected by the division and shall not be filed.
That rule then sets forth criteria for arriving at a determination of whether a corporate name is deceptively similar:
The following rules shall be used in determining if a corporate name is deceptively similar. Following each rule are examples
of deceptively similar corporate name styles (unless otherwise indicated)
A difference in the corporate suffix shall not constitute a name difference:
SAMPSON, INC. SAMPSON, CORPORATION SAMPSON, INCORPORATED
An article of speech difference shall not constitute a name difference:
SMITH COMPANY
THE SMITH COMPANY
The use of periods, spaces or symbols shall not constitute a name difference:
AGX, INC.
A G X, INC.
A.G.X., INC.
A*G*X*, INC.
AG&X, INC.
A-GX, INC.
FAIR VIEW REST HONES, INC. FAIRVIEW REST HOME, INC.
The use of a singular, possessive, or plural spelling shall not constitute
a name difference:
GREEN TREE, INC. GREEN TREES, INC.
SMITH CONSTRUCTION, INC. SMITH 'S construction, INC.
Homonyms shall not constitute a name difference:
DEAR HAVEN, INC. DEER HAVEN, INC.
KRISPY KREAM, INC. CRISPY CREAMS, INC.
Numerals as opposed to spelled-out numerical words shall not constitute a name difference:
TWENTY-SEVEN, INC. 27, Inc.
The phrase OF FLORIDA or OF THE STATE OF FLORIDA shall not constitute a name difference unless the applicant is a business subsidiary or associate of
the previously filed corporation.
Unrelated Corporations: OMNI, INC.
OMNI OF FLORIDA, INC.
Related Corporations: OMNI, INC.
OMNI OF FLORIDA, INC.
The addition of OF FLORIDA to the beginning of the title shall he permissible.
A series of initials or symbols, or a series of initials, symbols or words which compose
a word shall not constitute a name difference:
BAR CONSTRUCTION, INC.
B.A.R. CONSTRUCTION
Thus, it can be seen that the two names at issue herein, under the definitional criteria quoted above, are neither visually nor orally the same. The issue is thus whether the name "Zellwood" is deceptively similar to "Zellwin."
Florida courts have dealt with the issue of what constitutes deceptively similar names on several occasions. In many instances the disputes have involved questions concerning similarity of corporate names and trade names. The best statement of the law in this area appears in Federal Securities Company vs. Federal Securities Corporation, 276 P.1100(Ore. 1929), which has been approved on at least four occasions by Florida courts as being an appropriate statement of the law concerning "deceptive similarity.' Junior Food Stores of West Florida, Inc. v. Jr. Food Stores, Inc., 226 So.2d 393 (Fla. 1969); Sun Coast, Inc. v. Shupe, 52 So.2d 805 (Fla. 1941); Lumbermen's Mutual Casualty Company vs. Lumber Mutual Casualty Insurance Company of New York, 17 So.2d 615 (Fla. 1944); City of Coral Gables vs. Rosenthal, 141 So.2d 632 (Fla. 3rd DCA 1962). In the Federal Securities case, the Oregon Supreme Court reviewed a number of cases from many jurisdictions and drew from them the basic legal principles, adopted in these Florida decisions governing this area. Because of the thoroughness of its statement of the law in this area, as since applied in Florida, it is quoted at length:
The foregoing constitutes a review of
all the principal cases cited by counsel, together with a few others which came to
our attention; their number could be readily multiplied. We believe that they justify the conclusion that primarily it is not the name which is protected, but the business; the latter is guarded against injury through a fraudulent traffic in its name by late comers. The business will be protected whether conducted in the name of an individual or that of a corporation; whether
the name is fanciful or not. But, to justify relief, the circumstances must be such that it appears that the business will suffer from a deceptive use of its name, or that by reason of a similar act of unfair competition, the public will be imposed upon.
From Nins on Unfair Competition, 2d edition 98, we quote: "What names are 'calculated
to deceive' and what names are so 'different' or 'dissimilar,' as not to tend
to cause confusion or deceit? What standard can be applied to measure names, to discover whether or not they are conflicting? The House of Lords has said that no witness is entitled to express an opinion as to this.
The names may be put in evidence, together with the facts as to their use, and the circumstances surrounding the choosing of them; but there is no standard, except what the court In each particular case believes has worked fraud, or may work fraud or loss to the plaintiff. The probability of injury resulting from the use of the two names is the test to be applied by the court for the purpose of deciding whether or not the name will conflict.
* * *
The ultimate question is always whether
trade is being unfairly diverted, and whether the public is being cheated into the purchase of something which it is not in fact getting; the courts interfere solely to prevent deception. The law recognizes a right of property in a name, and generally permits each to conduct his business in his own name; these rights are subject to the limitation that they shall not be so disbonestly exercised the public will be misled as to the identity of a business or the source of a piece of merchandise. The sole distinction between a corporate and an individual name, in the application of these principles, is that a second incorporator comes to the name not unconsciously, but by choice, and that
he need not select the name of an already well-established business. Should he do so, he therefore will supply evidence that he intends to palm off his goods as those of the first appropriator. And, as is suggested in
Farmers' Loan & T. Co. vs. Farmers' Loan & T. Co., supra, 'although not technically a trademark, the authorities are In favor of holding that a corporate name deserves the same consideration as a trademark.' The
injury guarded against Is twofold:
Injury to the public by having palmed off upon it a spurious article believing it to
be the product of the old established firm
in which it reposes confidence; (2) Injury to the defrauded corporation by having its trade diverted to the newcomer. The case of Buckspan vs. Hudson's Bay Co. (C.C.A.5th) 22
F. (2d)721, is an Illustration of where the principal beneficiary of the decision.
A greater degree of similarity in names will be tolerated where they are geographical or descriptive than where the first corporation's name is fanciful and arbitrary; the cases of Kansas Mill Co. v. Kansas Flour Mills Co. , supra, and Sweet Sixteen Co. v. Sweet "16' Shop, (C.C.A. 8th) IS F. (2d) 920, are good Illustrations of the application of that principle. As we observed before, the thing protected is the business; good Illustrations are the cases of [citations omitted] . While there is no necessity to prove fraud, yet, when fraud appears, it seems patience ceases to be a virtue and the relief may become broader; good illustrations are [citations omitted].
When it has been found that there is
a similarity of names, a court does not cease its inquiries and at once grant relief, but proceeds to ascertain whether the other facts are such that deception and injury are likely. .
In the Federal Securities case, the Oregon Supreme Court had before it the question of whether Federal Securities Company, an Oregon corporation engaged in the business of buying and selling securities, was entitled to relief against Federal Securities Corporation, an Illinois corporation formed later, to engage in the buying and selling of securities, when both expanded their businesses to include the same geographical area, and the newer company, Federal Securities Corporation, having adopted as a trade name in Oregon, the name "Federal Securities Corporation of Illinois." In that case the evidence shows that there were instances of telephone calls being misdirected, items of mail, telegrams and packages intended for one company being misdirected to the other, and occasions when telegraph companies became confused in making charges for their services. The Court placed no weight on such instances of confusion or misdirection, opining that "we are satisfied, however, that much of this sort of
confusion will disappear as the Postal Department, telegraph companies and deliverymen become acquainted with the two companies The Court, rather, looked to the nature of the businesses of the two companies. One company confined its business largely to dealing on an intimate basis with its clientele in advising and rendering investment advice with regard to securities transactions. The other company advertised "wholesale" transactions in which it originated bond issues and acted as an underwriter of securities. There was no evidence in that case of any significant confusion among customers of the two companies, and no evidence that there was any attempt by either to fraudulently or deceptively create confusion. The Court ultimately concluded that both companies could continue to use their respective names so long as the newcomer acted in good faith and did not act In a manner so as to defraud the other preexisting named company. The Court emphasized that there was no real risk to the established business of either since the two companies did not compete In the same securities market.
The Oregon Supreme Court's emphasis on the interest of a corporation in the sanctity of its name being focused on the protection of its business has been adopted by Florida courts as the appropriate consideration in determining when names which might be considered similar become "deceptively similar." In Sun Coast, Inc. vs. Shupe, supra, Sun Coast, Inc. was engaged in operating an apartment hotel project. Suncoast Properties was engaged In the business of dealing in real estate In the same community. Citing the Federal Securities decision with approval, the Florida Supreme Court emphasized that the two companies were not in competition with one another, and that there was nothing o show that the public would be tricked or the plaintiff company damaged by any confusion. The Court also noted that the words "sun" and "coast," whether used separately or as a single word, are very descriptive of places and characteristics of this state" and could not properly be monopolized by any company. Likewise, in City of Coral Gables v. Rosenthal, supra, the Third District Court of Appeal held that the City of Coral Gables has no standing to enjoin the use of the corporate name "Coral Gables Convalescent Home, Inc." when it was being used by a corporation having no place of business in Coral Gables, because the City of Coral Gables did not compete with the corporation and had not shown any deception which would injure it. Similarly, the Florida Supreme Court in Junior Food Stores of West Florida, Inc. v. Jr. Food Stores, Inc., supra, ruled that both those companies could continue using their respective names despite the fact grocery stores were not actually competing with one another. The Supreme Court found:
However, we find that when the Chancellor noted the existence of 'confusion, he was not referring to the kind of confusion that is recognized by the common law. The Chancellor was referring to the fact that certain invoices and merchandise had been misdirected from stores in one chain to stores in the other by deliverymen and salesmen who were confused by the similarity in names. Testimony indicated that mistakes of this nature had also occurred between the litigants and stores wholly outside of their respective chains. In similar cases decided by other jurisdictions, this kind of error
has not been deemed of sufficient consequence to support an injunction. See Umpqua Broccoli Exch. v. UmQua Broccoli Growers, 117 Or.
678, 245 P. 324(1926); Federal Securities Co.
v. Federal Securities Corp., supra. It is presumed that mistakes such as these are due merely to inattention on the part of those charged with the servicing of the needs of businesses, and that in time the inattention will be rectified. The proper view of the 'customer confusion' test as indicated by the definition set out previously, is that it is concerned, not with provisioners, but with those who seek to do business at the consumer level. In the instant case, no evidence of a diminution in respondent's trade was submitted before the Chancellor, and no customer testimony was proffered.
Thus, the Supreme Court found no basis for granting relief on the ground that the names were "deceptively similar."
The Florida Supreme Court cited with approval in the Junior Food Stores case the case of Umpqua Broccoli Exchange v. Um-Qua Valley Broccoli Growers, supra, which was an Oregon decision dealing with the propriety of two similar corporate names. The Oregon statute involved therein prohibited a corporation from taking a name so similar to the name of another "as to be likely to cause confusion, or when...the name so assumed tends to mislead or deceive the public as to the character, purpose or plan of business of the proposed corporation.... Those two corporations were headquartered in the same town, both dealt in broccoli raised in Umqua Valley, which had become renowned for its agricultural products, and which was sold to them for marketing. The court found that although both companies were competitive, neither had lost any business as the result of the other's use of the similar name. The court noted that in that case there had also been confusion "in delivery of mail, telegrams, and bills of lading; that the railroad company made a mistake In spotting a carload of crates." Since these instances of confusion did not concern purchasers of the company's product, the court did not find them to be evidence of the type of confusion which would support a finding of deceptive similarity in the names.
The Oregon Supreme Court found that the most important issue in the case was the fact that the two companies were using geographic and descriptive names for their corporations, which could not be monopolized unless used fraudulently or if the words had acquired a secondary meaning in the mind of the public such as to be synonymous with a particular company's product. The Oregon Supreme Court stated as follows:
Undoubtedly the word 'Umpqua' or 'Um-Qua' Is a geographical word. 'Broccoli' is a generic term. The plaintiff cannot acquire the exclusive right to the use of either of
these words in its corporate name. The word 'Umpqua' or 'Um-Qua' has no secondary or particular meaning as denoting the business or products of plaintiff. That name, however spelled, pertains to the place where broccoli is raised in large commercial quantities.
In the absence of actual fraud or attempt to deceive the defendant has a right to use the
word in its corporate appellation. 'Broccoli' is merely descriptive of winter cauliflower, or a vegetable, and the word cannot be monopolized as a part of a corporate name.
There is a marked difference in the names of plaintiff and defendant. Plaintiff's name consists of the three words designating an 'exchange.' It buys, ships, and sells broccoli and other similar products.
Defendant's name is composed of four words, two of which have no similarity to any part of plaintiff's name. Its name suggests that it or its organizers and stockholders are 'growers' of broccoli...The public, or any member thereof, by the use of reasonable diligence and discrimination, which is presumed by the law to be used, can
easily distinguish one name from the other. [Citations omitted] Under all the circumstances we do not think there is any probability of anyone being deceived or misled by the similarity of the two names to the injury of plaintiff.
Florida courts have likewise found that the use of a geographic, descriptive or generic word as a part of a corporate name gives rise to no basis to prevent the use of such words in the name of another corporation, where the names are not identical. This principle should be controlling in the instant proceeding: "Zellwood" is a geographic name. "Zellwin" is not an identical name but rather is a fanciful derivation of that geographic name. The parties have agreed that they do not compete with each other in the marketing of their products, and thus, absent the demonstration of an intent to fraudulently use the name chosen by the Respondent to garner business from the Petitioner, there can be no deceptive similarity.
The Florida Supreme Court has noted the importance of not allowing monopolization of descriptive and geographic names in the Sun Coast, Inc. case discussed above. That court also dealt with this issue in Surf Club v. Tatem Surf Club, Inc., 10 So.2d 554 (Fla. 1942), where The Surf Club, a corporation not for profit, attempted to enjoin Tatem Surf Club, Inc. from using the words "surf club" or the word "surf" in connection with any words which would purport to describe a social organization. The Tatem Surf Club, Inc., was a corporation formed in connection with a hotel to provide facilities of a type similar to the facilities of the plaintiff, The Surf Club. The Supreme Court found no deceptive similarity in the names. The Surf Club catered to an "exclusive" membership, while Tatem Surf Club, Inc. sought the general patronage of the public. Since the two corporations were not competing in the same "market," the determinative question became the right of the defendant to use the word "surf." Citing with approval its earlier decision in Addison v. Hooks, 107 So.623 (Fla. 1926), the Supreme Court held that "geographic names are considered common property and may not in ordinary circumstances be appropriated as trade names." The Court then found that both the words "surf" and "club" were descriptive words of broad application which cannot be properly monopolized by any corporation.
In Addison v. Books, supra, followed by the Court in the Surf Club case, two companies were using the trade name "Tampa Mattress Factory." Prior to
1913, there had been two mattress manufacturers in the Tampa area, one using the name "Florida Mattress Factory" and the other the name "Tampa Mattress Factory." Tampa Mattress Factory went bankrupt, and its assets and trade name were purchased by Florida Mattress Factory. Although Florida Mattress Factory continued under Its name, it used the name "Tampa Mattress Factory" on its stationery and received orders sent to "Tampa Mattress Factory." Approximately ten years later, a competing business opened in the Tampa area, doing business under the name "Tampa Mattress Factory," at which time the Florida Mattress Factory sought trademark registration and incorporation under the name Tampa Mattress Factory. When the new company began doing business, confusion resulted regarding mail deliveries as well as confusion by customers. The Florida Supreme Court affirmed the lower court's dismissal of an action brought by Florida Mattress Factory for the reason that the name "Tampa Mattress Factory" was entirely geographical and descriptive. As such it cannot be exclusively appropriated by any one company. Since both of the companies using the name "Tampa Mattress Factory" were located in Tampa, were factories, and manufactured mattresses, neither was committing a fraud or using the name deceptively in the opinion of the court. Since there had been no claim in that case that the new company was using the name "Tampa Mattress Factory" for the purpose of misleading customers or "palming off" its products as being the products of the original user of that name, the Court found no basis for the use of geographical and descriptive names to be prohibited from mutual use by the two companies.
Under the theory of that case, where an intent to confuse customers exists, or the use of the similar name is fraudulent, the new company would be prohibited from using geographic or descriptive names too similar to the preexisting company, but no such intent has been claimed or established in this case and no such unfair competitive effects have occurred.
The Third District Court of Appeal has followed this line of decisions in Consolidated Electric Supply, Inc. v. Consolidated Electrical Distributors Southeast, Inc., 355 So.2d 853 (Fla. 3rd DCAl978). In that case the District Court of Appeal affirmed the dismissal of an action brought by the first user of the similar names on two grounds. The first was that as a matter of law the two names were not sufficiently similar as to allow the first user any right to complain; and secondly, because the word "consolidated" was a generic name.
Zellwood Farms, Inc.'s name is likewise a generic and a geographic name. It describes a corporate agricultural business in Zellwood, Florida. That company only produces mushrooms and has no intent to ever raise field crops. Zellwin Farms Company is not permitted under the legal authority delineated above to monopolize a geographic, generic name. This is especially
true where, as here, there is no competition between the two parties, since they serve distinctly different agricultural product, consumer markets. There has been neither claimed nor proven any intent to mislead by Zellwood Farms, Inc., no diversion of customers and no intended nor actual deception. Zellwood, Florida is a small town, widely known for its agricultural products. Many businesses in Zellwood, Florida, use the town name in their business names.
(See Respondent's Exhibit 16) . The instances of confusion which have been shown to have occurred are not of the type which the courts, in the cases delineated above, found would result in deception, and no deception of either company's business clients has been shown. These are instead, the type of mix- ups or misdirections which will cease in the natural order of things as suppliers and provisioners of goods and services to the two companies become increasingly familiar with the two companies and the nature of their businesses. The decrease in such misdirections and confusion has already been established to be occurring, thus the evidence of record does not show that the two names are
deceptively similar s as to preclude Zellwood Farms, Inc.'s name from continued use by the Respondent. The requested relief should be DENIED.
Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore
RECOMMENDED that the petition of Zellwin Farms Company, seeking to forbid the use by the Respondent of the name Zellwood Farms, Inc. be DENIED.
DONE and ENTERED this 17th day of May, 1984, in Tallahassee, Florida.
P. MICHAEL RUFF Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 1984.
COPIES FURNISHED:
Lloyd T. Asbury, Esquire Suite 2207 Independent Square One Independent Drive Jacksonville, Florida 32202
Michael P. McMahon, Esquire Post Office Box 231 Orlando, Florida 32802
Dana McKinnon, Director Division of Corporations The Capitol
Tallahassee, Florida 32301
Honorable George Firestone Secretary of State
The Capitol
Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Jul. 13, 1984 | Final Order filed. |
| May 18, 1984 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 10, 1984 | Agency Final Order | |
| May 18, 1984 | Recommended Order | Evidence did not establish customer confusion, misdeliveries and other harm envisioned by decision as occurring. Names of two corporations are not deceptively alike. |
