STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI YACHT SALES, INC. )

)

Petitioner, )

)

vs. ) CASE NO. 84-0443

) MIAMI YACHT BROKERAGE, INC. & ) DEPARTMENT OF STATE, DIVISION OF ) CORPORATIONS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James F. Bradwell, held a public hearing in this case on June 28, 1984, in Miami, Florida.

APPEARANCES

For Petitioner: Eduardo Gutierrez-Falla, Esquire

1395 Coral Way

Miami, Forida 33145

For Respondent Miami Yacht

Brokerage, Inc.: No appearance

For Respondent Carole Barice, Esquire Department of Department of State State, Division The Capitol

of Corporations: 1/ Tallahassee, Florida 32301

ISSUE

The issue presented herein is whether or not the names Miami Yacht Sales, Inc. and Miami Yacht Brokerage, Inc. are deceptively similar.

FINDINGS OF FACT

1. Based upon my observation of the witness and his demeanor while testifing, documentary evidence received, pleadings and responses, and the entire record compiled herein, I hereby make the following relevant factual findings.

   
   

2. On 0ctober 7, 1977, Respondent, Division of Corporations, issued Charter number F40099 permitting the use of the corporate name Miami Yacht Sales, Inc. to the Petitioner in reliance on Chapter 607, Florida Statutes.

3. On January 3, 1984, Respondent, Division of Corporations, issued Charter number 087231 permitting, the `use of the corporate name Miami Yacht Brokerage, Inc. to the Respondent in reliance on Chapter 607, Florida Statutes.

   
   

4. Petitioner is engaged in the business of selling new and used boats and yachts. Petitioner conducts its business at 2122 N. River Drive, Miami, Florida. Petitioner, through its president, Larry Stevens, related one incidence of a telephone communique from Merrill Stevens Brokerage, a competitor which was seeking information respecting one of Respondent, Miami Yacht Brokerage, Inc., salesmen. Mr. Stevens also related at least one instance wherein a supplier misdelivered a package which was destined for the Respondent's business, end Petitioner rerouted that package to Respondent. Petitioner, through Mr. Stevens, generally alluded to "confusion, client-wise" which he believed would continue as soon as Respondent, Miami Yacht Brokerage, Inc., was able to get an advertisement in the Yellow Pages of the Miami telephone directory.

   
   

5. Petitioner pointed to no specific acts of confusion or other deceptive practices by Respondent, Miami Yacht Brokerage, Inc.. example, Petitioner did not substantiate that any of its customers went to the Respondent's business and had to ultimately be directed to Petitioner's business. Likewise, Petitioner did not allege or otherwise claim that the name Miami Yacht Brokerage, Inc. was selected by Respondent based on an attempt to deceive or otherwise defraud the consuming public.

   
   

6. As stated herein, Respondent, Miami Yacht Brokerage, Inc., did not appear at the hearing herein although it was properly noticed by copy of a notice of hearing filed May 28, 1984 scheduling this matter for hearing on June 28, 1984. However, the evidence reveals that Respondent, Miami Yacht Brokerage, Inc., is also engaged in the business of selling new and used boats and yachts and its business is situated approximately four miles from Petitioner's business site.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

8. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

9. 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 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 has in effect a registration of its corporate name as provided in this act,....

   The Department of State has adopted rules defining the term "deceptively similar" and defining what is not to be considered deceptively similar.

   
   

10. 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 or not. Rule 1N-1.O4r, Florida Administrative Code.

    
    

11. A comparison of the two names at issue herein, under the definition or criteria quoted above, are neither visually nor orally the same. Companies using geographic and descriptive names for their corporations cannot monopolize that name unless the names are used fraudulently or if the words have acquired a secondary meaning in the mind of the public such as to he synonymous with a particular company's product. No such showing has been made herein and there does not appear to he a basis to prevent Respondent, Miami Yacht Brokerage, Inc., from using its name since the Respondent's name is not identical with Petitioner. There has been no demonstration of an intent by Respondent to fraudulently use its name to garner business from Petitioner and no attempt to mislead customers or otherwise "palm off" its products as being the products of the Petitioner. See, for example, Consolidated Electric Supply, Inc. v. Consolidated Electric Distributors Southeast, Inc., 355 So.2d 853 (Fla. 3rd DCA 1978). The Florida Supreme Court has held that "geographic names are considered common property and may not in ordinary circumstances be appropriated as trade names." Addison v. Hooks, 107 So.2d 623 (Fla. 1926). Petitioner's further claims of misdeliveries are considered to have been caused by inattention on the part of deliverymen and others servicing business needs which, in time, the attention will be rectified. Absent any showing of deception and given the limited number of mix-ups or misdeliveries which in time will cease, and the failure on Petitioner's part to demonstrate that the two names are deceptively similar when measured against the criteria in Section 607.024(1)(b) , Florida Statutes or Rule Sections 1N-1.O4 and .041, Florida Administrative Code, the relief requested by Petitioner should be denied.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is therefore recommended that the petition of Miami Yacht Sales, Inc., seeking to forbid the use by the Respondent of the name Miami Yacht Brokerage, Inc., be DENIED.

Recommencded this 13th day of November, 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 13th day of November, 1984.

ENDNOTE

1/ The Division of Corporations was only a nominal party in this proceeding. As such, the Division, through its counsel, filed a written response dated June 12, 1984 advising, inter alia, that the Division would not present any evidence or testimony at the hearing and that it would, and did, provide for a tape recording of the proceedings herein.

COPIES FURNISHED:

Eduardo Gutierrez-Falla, Esquire 1395 Coral Nay

Miami, FL 33145

Carole Barice, Esquire Department of State The Capitol Tallahassee, FL 32301

Sarah Elizabeth Sarver Director

Miami Yacht Brokerage, Inc. c/o Ace Industries, Inc.

54 Northwest 11 Street Miami, FL 33136

Dana McKinnon Director

Division of Corporations The Capitol

Tallahassee, FL 32301

Docket for Case No: 84-000443

Orders for Case No: 84-000443