86-003986 William Lineberger, D/B/A Jet Oil Co. vs. Department Of Agriculture And Consumer Services Status: Closed Recommended Order on Thursday, July 16, 1987.

Summary: Petitioner failed to prove that the labels or decals on the petitioner's and intervenor gasoline dispensers or the registered names are so similiar so as to mislead

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM LINEBERGER, d/b/ a )

JET OIL COMPANY , )

)

Petitioner , )

)

vs. ) CASE NO. 86-3986

)

DEPARTMENT OF AGRICULTURE AND )

CONSUMER SERVICES , )

)

Respondent , )

and )

)

CONOCO, INC. , )

)

Intervenor . )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D.

Tremor, Hearing Officer with the Division of Administrative Hearings, on April

21, 1987, in St. Petersburg, Florida. The issue for determination in this

proceeding is whether Conoco, Inc.'s "JET " liquid petroleum brand name

registration should be cancelled.

APPEARANCES

For Petitioner : David W. Pettis, Jr., Esquire

Pettis & McDonald, P.A.

Post Office Box 1528

Tampa, Florida 33601

,For Respondent: Harry L. Michaels, Esquire

Room 513, Mayo Building

Tallahassee, Florida 32399-0800

For Intervenor : Lee J. Keller, Esquire

600 North Dairy Ashford

McLean 2068

Houston, Texas 77079

INTRODUCTION

In support of his contention that the respondent Department of Agriculture

and Consumer Services improperly permitted Conoco to register the name "JET "

as a liquid fuel brand name, petitioner William Lineberger testified in his own

behalf and also presented the testimony of his son, Ian Lineberger and John

Whitton , Chief of the respondent's Bureau of Petroleum Inspection. Petitioner's

Exhibits 1 through 16 were received into evidence.

The intervenor Conoco presented the testimony of Dennis Reilley, the Vice

President of Operations for Kayo Oil Company, and Rod Pearcy, Kayo's Director of

Construction. The intervenor's Exhibits 1 through 9 were received into

evidence, as was Hearing Officer's Exhibit 1.

The respondent Department presented no oral or documentary evidence at the

hearing.

Subsequent to the hearing, counsel for the petitioner and for the

intervenor submitted proposed findings of fact and proposed conclusions of law.

To the extent that the parties' proposed factual findings are not included in

this Recommended Order, they are rejected for the reasons set forth in the

Appendix hereto.

FINDINGS OF FACT

Based upon the oral and documentary evidence adduced at the hearing, the

following relevant facts are found:

1. Petitioner William Lineberger, doing business as Jet Oil Company, has,

since 1950, continuously used the brand name "Jet" for identifying gasoline sold

by him in the State of Florida. At one time, petitioner owned or operated some

thirteen stations in various locations in Florida. Since 1980, he has operated

only three stations, all located in Pinellas County-- two in St. Petersburg and

one in Pinellas Park.

2. Pursuant to Chapter 525, Florida Statutes, the respondent Florida

Department of Agriculture and Consumer Services first issued petitioner a liquid

fuel brand name registration for the name "JET" in 1973.

3. Pursuant to Chapter 495, Florida Statutes, the Florida Secretary of

State issued petitioner mark registration number 922,820 on August 11, 1980, for

the mark "JET" as a trademark and a service mark to be used in connection with

gasoline and oil product convenience store items.

4. Kayo Oil Company (Kayo) is a Delaware corporation and a wholly-owned

subsidiary of Conoco, Inc. Kayo operates a chain of retail gasoline and

convenience stores in 22 states. It has approximately 465 locations

concentrated mainly in the southeast portion of the country, with 38 locations

in Florida, including one in Pinellas Park. Kayo currently has plans for

further expansion in Florida. It's fixed asset base in Florida is approximately

$10 million. The typical Kayo retail gasoline outlet in Florida has four

multiple product dispensers, sells 500 to 600 different convenience items inside

an 800 to 1600 square foot building, markets fast food products and employs a

color scheme of black on yellow on its signage and building facade.

5. Conoco, Inc. first began using the "JET" trade name in Europe in the

1960's when it acquired a large chain of European retail gasoline outlets

selling under that brand name. It currently operates about 2,000 units under

the brand name "JET" in Europe. In the United States, Kayo has used various

trade names in the operation of its outlets, including "Kayo" and "JET". In the

early 1980's, Kayo made the decision to standardize the name it traded under

throughout the United States, and selected the name "JET". In most instances,

it accomplished the conversion of its stations from "Kayo" to "JET", with the

black on yellow color scheme, during the period from the early 1980's through

1984.

6. The intervenor initially sought to obtain from the Florida Department

of Agriculture and Consumer Services the liquid fuel brand name "JET". That

request was denied for the reason that "JET" had been previously registered to

the petitioner. Thereafter, the Department issued to the intervenor the liquid

fuel brand name registration, "JET " on April 27, 1981. Kayo is required to

display the "JET " liquid fuel brand name on its dispensers or pumps. 1/ With

the exception of two of its Florida locations, Kayo uses the word "JET" on its

street and building signage. At its Pinellas Park and Clearwater stations, it

has retained the name "Kayo". Being an independent brand marketer, Kayo

attempts to dedicate the majority of its signage to display the price of

gasoline, as opposed to the gasoline brand name. It is Kayo's marketing

philosophy that the consumer is more influenced by low prices and location than

by the fuel brand name.

7. In 1984, the physical appearance of petitioner's three stations did not

resemble the physical appearance of the typical Kayo station in Florida.

Subsequent to 1984, petitioner did some remodeling work at its Pinellas Park

station which included yellow and black signage and the name "JET" in black

block letters on a yellow background, resembling Kayo's style of lettering on

both its pump decals and its signage in areas outside Pinellas County.

8. The yellow pages of the St. Petersburg telephone directory lists both

Kayo's Pinellas Park station and petitioner's Pinellas Park station under the

heading of Jet Oil Company. In February or March of 1987, a local cigarette

supplier attempted to deliver and present an invoice for cigarettes ordered by

Kayo to one of petitioner's facilities. This occurred again with the same

supplier in March of 1987. In January of 1987, a Motor Fuel Marketing Complaint

against the "Jet" business at 7091 Park Boulevard was filed with the Division of

Consumer Services, Department of Agriculture and Consumer Services. Although

this is the address of the Kayo station in Pinellas Park, the Consumer Services

Consultant, Division of Consumer Services, forwarded the complaint to "Jet Oil

Company" at 7879 - 49th Street North, the petitioner's station, for a response.

Petitioner presented evidence that other instances of confusion between its

stations and Kayo stations had occurred with respect to bills, bank inquiries,

and a newspaper article. Also, on one occasion, petitioner was ordered by the

Pinellas Park police to close its stations because a bomb threat had been made

against Jet Oil. Petitioner did not produce any evidence that the source of any

of the incidents related was attributable to the liquid fuel brand names

utilized by it or the intervenor.

CONCLUSIONS OF LAW

9. The registration of liquid fuel brand names falls within the authority

of the Department of Agriculture and Consumer Affairs and is governed by

Chapters 525 and 526 of the Florida Statutes, and Rule 5F-2.003 of the Florida

Administrative Code. The only real guidance in those statutory and regulatory

provisions as to the exercise of the Department's responsibilities and

discretion when issuing brand name registrations is found in Rule 5F-2.003(2)

and (3), Florida Administrative Code. In pertinent part, those regulations

require that "each gasoline and kerosene shall have a different brand name..."

and that "the Department will refuse the registration of any product under a

name that would be misleading to the purchaser of the product."

10. It would appear from the regulatory scheme set forth in Chapters 525

and 526, Florida Statutes, that the purpose of requiring liquid fuel brand name

registration with the Department is actually twofold. One purpose is to enable

the Department to fully perform its inspection, investigative and enforcement

responsibilities with regard to the sale of gasoline and oil products in this

State. By requiring registration under "different" names, the Department will

have a complete inventory of products sold so that such products can be

monitored in a manageable fashion. The second purpose is to prevent consumers

from being misled as to the type or manufacturer of the product they are

purchasing.

11. As applied to the facts of this proceeding, the liquid fuel brand

names "JET" and "JET " are "different" so as to enable the Department to manage

its duties with respect to products sold in this State. With regard to the

second objective, petitioner has not demonstrated that any purchaser has been

misled by the similarity in the names of petitioner's products and Kayo's

products.

12. While petitioner did present evidence of some instances of confusion

between its places of business and Kayo's station in Pinellas Park, it was not

demonstrated that the fuel brand names displayed on the pumps at the different

establishments was the source of the confusion. Rather, it appears that the

source of confusion in those instances was either the listing in the telephone

directory, clerical error apparent on the face of the documents received into

evidence, or, possibly, the similarity of the two competitors' street signage or

color schemes. Moreover, the instances of confusion cited by the petitioner did

not involve purchasers or purchases of gasoline at either facility. The

confusion related more to site or location than to the fuel being offered for

sale at either location.

13. Even if one were to utilize the broader standard which applies to the

Secretary of State's registration of trademarks and service marks, the

petitioner has failed to demonstrate that the intervenor's use of the name "JET

" on its fuel pumps so resembles petitioner's use of "JET" on its pumps as to

be likely "to cause confusion or mistake or to deceive". See Section

495.021(1)(f), Florida Statutes. Petitioner presented no evidence that any

consumer intending to patronize its station instead bought from Kayo's station

(or vice versa) through confusion, mistake or deceit caused by the similarity of

the fuel names appearing on the gas pumps.

14. In summary, it has not been demonstrated that the labels or decals on

the petitioner's and intervenor's gasoline dispensers, or the registrations by

the Department of the names "JET" or "JET ," are so similar as to either

frustrate the duties and responsibilities of the Department or to mislead,

confuse or deceive consumers. While beyond the scope of issues in this

proceeding, it bears mention that Kayo has attempted to minimize the instances

of mistaken identification of locations complained of by petitioner by retaining

the Kayo signage at its facilities in Pinellas County. There being no

demonstration that the Department abused its discretion in registering "JET "

as the liquid fuel brand name of the intervenor, cancellation of that

registration is not warranted.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it

is RECOMMENDED that petitioner's request for a hearing challenging the issuance

of the "JET " registration to the intervenor be DISMISSED.

DONE and ORDERED this 16th day of July, 1987, in Tallahassee, Florida.

___________________________________

DIANE D. TREMOR

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 16th day of July, 1987.

ENDNOTE

1/ The petitioner presented evidence that Kayo displayed the word "JET" without

the "" on the pumps at the Pinellas Park station. The evidence further

established that that situation has since been corrected. In any event, such an

occurrence is reason, petitioner's post-hearing motion to submit additional

evidence regarding a Kayo station in St. Augustine, Florida, has been denied.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3986

The proposed findings of fact submitted by the petitioner and the

intervenor have been fully considered and have been accepted and/or incorporated

in this Recommended Order, except as noted below.

Petitioner

7. Accepted as fact, but

irrelevant and immaterial to

the issue in dispute in this

proceeding.

8 - 10. Rejected; not supported by

competent, substantial

evidence.

Respondent

4. Accepted with respect to Kayo,

but no such evidence with

respect to petitioner.

COPIES FURNISHED:

David W. Pettis, Jr., Esquire

Pettis & McDonald, P.A.

Post Office Box 1528

Tampa, Florida 33601

Harry L. Michaels, Esquire

Office of General Counsel

Room 513, Mayo Building

Tallahassee, Florida 32399-0800

Lee J. Keller, Esquire

600 North Dairy Ashford

McLean 2068

Houston, Texas 77079

The Honorable Doyle Conner

Commissioner of Agriculture

The Capitol

Tallahassee, Florida 32399-0810