Judges: R. T. CARPENTER
Agency: Department of State
Latest Update: Sep. 25, 1990
Summary: Respondent is found to have a corporate name deceptively similar to that of Petitioner. Recommended that Department of State revoke name registration of Respondent.
84-2074STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
AMERICAN PRECAST CORPORATION )
)
Petitioner, )
)
vs. ) CASE NO. 84-2074
) AMERICAN PRECAST CORPORATION & ) DEPARTMENT OF STATE )
)
Respondent. )
)
RECOMMENDED ORDER
This matter came on for hearing in Miami, Florida, on October 10, 1984 before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter. The parties were represented by:
For Petitioner: Miranda Franks, Esquire
MAGUIRE, VOORHIS & WELLS, P.A.
Post Office Box 633 Orlando, Florida 32802
For Respondent Pedro P. Echarte, Esquire
America Precast 81 Ponce DeLeon Boulevard, Suite 204 Corporation: Coral Gables, Florida 33134
For Respondent
Department of State: No appearance.
This matter arose on American Precast Corporation's petition for proceedings to determine whether Respondent, America Precast Corporation, has registered a name which is deceptively similar to Petitioner's name. Petitioner submitted proposed findings of fact and conclusions of law. To the extent these proposed findings have not been adopted or otherwise incorporated herein, they are found to be subordinate, cumulative, immaterial, unnecessary or not supported by the evidence.
FINDINGS OF FACT
On July 26, 1971, Respondent Department of State issued Charter No. 385888 permitting the use of the corporate name American Precast Corporation to Petitioner.
On July 22, 1980, Respondent Department of State issued Charter No. 676744 permitting the use of the corporate name America Precast Corporation to Respondent America Precast Corporation.
At present, the two companies operate in separate service areas and manufacture only one common item, parking bumpers. However, Petitioner, who does business in Central Florida, plans to expand into the South Florida market when a non-compete agreement with a third party expires in 1987. Respondent operates exclusively in South Florida.
Petitioner was recently named as defendant in a civil suit involving a matter where Respondent was the proper party. Thus, there has been at least one instance of public confusion regarding the names at issue here.
Respondent America Precast Corporation carried its name to Florida after many years in business in Cuba under that name. Respondent points out that it followed prescribed name registration procedures and opposes the registration withdrawal sought by Petitioner.
CONCLUSIONS OF LAW
Section 607.024, Florida Statutes, provides in part:
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. .
Rule IN-1.O6, Florida Administrative Code, provides:
Names are not similar if a comparison of the names, written as above, reveals no similarity. A proposed corporate name which is deemed to be not similar will be available and will be filed upon
compliance with other filing requirements.
A comparison of the two names at issue reveals obvious similarity, with only one letter preventing name identity. It would be difficult to imagine a more conspicuous example of deceptive name similarity.
Respondent Department of State took no part in these proceedings and its reason for allowing Respondent America Precast Corporation to register its current name in 1980 is not known. However, such registration was permitted in violation of the above provisions and must therefore be withdrawn.
Petitioner became entitled to statewide protection of its name upon registration in 1971. The existence of separate business areas within Florida is not a proper basis upon which a corporation can be authorized to register or, as here, continue to use a deceptively similar name. However, Respondent America Precast Corporation registered its name in good faith and has conducted business in Florida under this name for more than four years. It should therefore be granted a reasonable period to phase out and replace its established name.
RECOMMENDATION
From the foregoing, it is
RECOMMENDED that the Department of State enter a Final Order withdrawing the registration of the name America Precast Corporation effective December 31, 1985.
DONE and ENTERED this 28th day of November, 1984 in Tallahassee, Florida.
R. T. CARPENTER 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 28th day of November, 1984.
COPIES FURNISHED:
Miranda Franks, Esquire MAGUIRE, VOORHIS & WELLS, P.A.
Two South Orange Plaza Orlando, Florida 32801
Pedro P. Echarte, Esquire 814 Ponce DeLeon Boulevard Suite 204
Coral Gables, Florida 33134
Carole J. Barice, Esquire Department of State
The Capitol
Tallahassee, Florida 32301
The Honorable George Firestone Secretary of State
The Capitol
Tallahassee, Florida 32301
Docket for Case No: 84-002074
Orders for Case No: 84-002074
| Issue Date |
Document |
Summary |
|
Jan. 10, 1985 |
Agency Final Order
|
|
|
Nov. 28, 1984 |
Recommended Order
|
Respondent is found to have a corporate name deceptively similar to that of Petitioner. Recommended that Department of State revoke name registration of Respondent.
|
