STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA GOLFWEEK, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 83-1904

) FLORIDA WOMEN'S OPEN, 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, WILLIAM B. THOMAS, held a formal hearing in this case on October 18, 1983, in Tampa, Florida. No transcript was ordered, and the parties waived their right to submit proposed findings of fact and conclusions of law.

APPEARANCES

For Petitioner: Randall G. Blankenship, Esquire

Post Office Box 917

Winter Haven, Florida 33882

For Respondent: W. T. Green, Esquire Florida Women's Route 1, Box 403

Open, Inc.: Crystal River, Florida 32629

Richard S. Fitzpatrick, Esquire

213 North Apopka Avenue Inverness, Florida 32650

For Respondent:

Department of State, Division

of Corporations: None

By letter dated June 2, 1983, the Petitioner requested the Division of Corporations of the Department of State to set a hearing to enjoin the alleged wrongful use of the name "Florida Women's Open" by the Respondent, Florida Women's Open, Inc., for the reasons that the Petitioner has the exclusive right to use this name, and that the Respondent's use of this name is deceptive and misleading to the general public. The Department of State referred the controversy to the Division of Administrative Hearings on June 10, 1983, for the scheduling of a formal administrative hearing.

The Petitioner filed its Petition for Relief on September 6, 1983, alleging substantially the same facts as set forth in its June 2nd letter to the

Department of State, and seeking the cancellation of the Respondent's corporate name Florida Women's Open, Inc., for the reason that its wrongful use is deceptive and misleading to the general public, and has caused confusion in the golf industry.

The issue to be determined is whether the Respondent, Florida Women's Open, Inc., is entitled to use this corporate name.

The Petitioner presented one witness, its corporate president, who is also the publisher of the publication "Florida Golfweek." Six exhibits were offered, five of which were received in evidence. The Respondent elected not to present evidence.

FINDINGS OF FACT

1. The Petitioner, Florida Golfweek, Inc., was incorporated in March of 1975. During the year 1975 it began to publish "Florida Golfweek" which is a weekly publication concerning the golf industry in Florida. The Petitioner has published "Florida Golfweek" continuously since 1975, and it now has approximately 10,000 paid subscribers from every state and some foreign countries. Eighty-five to ninety percent of these subscribers are Florida residents.

   
   

2. The Petitioner started a golf tournament called "Florida Women's Open" in 1978. This tournament was held at Errol Estate at Apopka in 1978, and in 1979, at Rolling Hills at Fort Lauderdale in 1980, at Plantation Inn in Crystal River in 1981 and 1982, and at Grenelefe Resort in Haines City in 1983.

   
   

3. The Petitioner sets the dates for this tournament each year, and engages the golf courses. The event is publicized in its publication "Florida Golfweek," and in daily newspapers throughout the state, as well as on radio stations. Posters are printed and are circulated for display at golf courses. Entry blanks for the tournament are published in "Florida Golfweek" and these are sent to all Florida golf courses, about 60 of them. The entry blanks show the entry fee and where it should be mailed, normally to the Petitioner's address in Winter Haven, Florida.

   
   

4. Both professionals and amateurs from the State of Florida play in this tournament, which has been established for Florida women golfers. A total of

   260 played in the 1983 event. There has never been a fee charged for spectators, and the tournament has never been named anything but "Florida Women's Open."

   
   

5. The Petitioner pays the prize money to the tournament winners, checks to the professionals and merchandise to the amateurs. It arranges for cocktail parties, and bears all of the expenses of the tournament including the golf course, carts, and green fees since 1978. The Petitioner makes a profit from this tournament, and as the field of players grows the profit potential will increase. There is a projection that a total of 400 golfers will participate in this tournament eventually. The Petitioner does not intend to abandon either the tournament or its name "Florida Women's Open."

   
   

6. The Petitioner moves the tournament around Florida so as to return some business to golf courses and organizations which advertise in "Florida Golfweek," and also in deference to the participants, to get the event into their area.

7. In March of 1983 the Petitioner learned that Plantation Inn at Crystal River intended to put on a similar tournament which had been named "Florida Women's Open," and that a corporation had been formed with the name Florida Women's Open, Inc. This tournament was put on by the Respondent at Plantation Inn at Crystal River in October of 1983.

   
   

8. The Petitioner's president received a brochure about the Respondent's tournament, and he saw this brochure at a number of golf courses in Florida. He received telephone calls at the office of "Florida Golfweek" about the two opens, inquiring which is which. He also saw articles in the St. Petersburg Times publicizing the Respondent's tournament. These are the facts which have been found as a result of the Petitioner's proof.

   
   

9. From the pleading presented by the Department of State's Division of Corporations, it is also found that the Respondent was issued Charter No. G11537 permitting the use of the corporate name Florida Women's Open, Inc., on December 3, 1982, and that on April 19, 1983, Mark Registration No. 929223 was issued to the Petitioner, Florida Golfweek, Inc., permitting the use of the trademark "Florida Women's Open" by the Petitioner.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this case. Section 120.57(1), Florida Statutes. The Department of State is authorized to reserve and approve the use of corporate names (Chapter 607, Florida Statutes), and to issue certificates of registration of trademark and tradenames (Chapter 495, Florida Statutes).

    
    

11. Section 607.024(1)(b), Florida Statutes, provides in part:

    
    

    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 cor- poration 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 registration of its corporate name as provided in this act,...

       
       

12. There was presented no evidence to show that the Petitioner ever incorporated the name "Florida Women's Open." Thus, the proscription in the above statute against two corporations with the same name is inapplicable. The Respondent's corporate name is not the same as the Petitioner's corporate name.

    
    

13. Section 607.027(1), Florida Statutes, provides in part:

    
    

    1. The exclusive right to the use of a corporate name may be reserved by any person or corporation, foreign or domestic, by filing with the Department

       of State an application, executed by the applicant, to reserve a specified cor- porate name....

14. There was presented no evidence to show that the Petitioner ever reserved the exclusive right to use the name "Florida Women's Open" by filing an application with the Department of State in accordance with the above statute.

    
    

15. There was no evidence presented to show that when the Respondent applied for and received its corporate charter in the name of Florida Women's Open, Inc., on December 3, 1982, any other party had ever incorporated under this name, or had reserved this corporate name, or had applied for approval to use this corporate name.

    
    

16. Section 495.031, Florida Statutes, authorizes any person who adopts and uses a trademark to apply for registration with the Department of State.

    The Petitioner applied for and received Mark Registration No. 929223 for the trademark "Florida Women's Open," but this was done on April 19, 1983, over four months after the issuance of the corporate charter to the Respondent authorizing the use of the name Florida Women's Open, Inc. Thus, the Petitioner did not take this step which was available to it to protect its use of the name "Florida Women's Open" until after the Respondent had incorporated with this name.

    
    

17. There was not offered in evidence the Certificate of Registration, Mark Registration No. 929223. This would have shown the date claimed for the first use of the name Florida Women's Open" anywhere, and the date claimed for the first use of the name in Florida. Section 495.061, Florida Statutes. There was not sufficient evidence presented to support a conclusion that the name in question had not ever been used prior to the first use by the Petitioner in 1978.

    
    

18. There was insufficient evidence presented to support a conclusion that the Respondent's incorporation under the name Florida Women's Open, Inc., was wrongful or done in bad faith, or that the Respondent's use of this name has been deceptive and misleading to the general public or has caused confusion in the golf industry, or that the Petitioner had the exclusive right to use the name "Florida Women's Open" when the Respondent incorporated under this name.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of State enter its Final Order finding that

on the evidence presented the Respondent is entitled to use the corporate name Florida Women's Open, Inc., and that the Petition of Florida Golfweek, Inc., be denied.

THIS RECOMMENDED ORDER entered on this 26th day of October, 1983, in Tallahassee, Florida.

WILLIAM B. THOMAS, 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 26th day of October, 1983.

COPIES FURNISHED:

Randall G. Blankenship, Esquire Post Office Box 917

Winter Haven, Florida 33882

W. T. Green, Esquire Route One, Box 403

Crystal River, Florida 32629

Carole J. Barice, Esquire General Counsel Department of State

The Capitol

Tallahassee, Florida 32301

George Firestone Secretary of State The Capitol

Tallahassee, Florida 32301

Docket for Case No: 83-001904

Orders for Case No: 83-001904