5D00-334 Tortoise v. Tortoise

SUPREME COURT CASES

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D00-334

Case Date: 07/09/2001

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2001

TORTOISE ISLAND HOMEOWNERS ASSOCIATION, INC., Appellant, v. TORTOISE ISLAND REALTY, INC., etc., Appellee. ______________________________/ Opinion filed July 13, 2001 Appeal from the Circuit Court for Brevard County, Charles M. Holcomb, Judge. Allan P. Whitehead of Frese, Nash & Hansen, P.A., Melbourne, for Appellant. Pamela Huddleston and Elise A. Singer of Huddleston & Palumbo, P.A., Melbourne, for Appellee. ON MOTION FOR REHEARING AND INCORPORATED MOTION FOR REHEARING EN BANC ON MOTION FOR CLARIFICATION SHARP, W., J. We deny appellee's motion for rehearing and incorporated motion for rehearing en banc. We grant appellee's motion for clarification to the limited extent of correcting a typographical error in the first sentence of the second full paragraph on page thirteen of the opinion. Accordingly, we withdraw our prior opinion and replace it with the following. CASE NO. 5D00-334

Tortoise Island Homeowners Association, Inc. appeals from a judgment denying it relief in its suit to enjoin the infringement and dilution of its trade name/service mark.1 Although the words trade name, trademark, and service mark are often used interchangeably, they are different. A trade name is descriptive of the dealer or person and applies to a business and its good will; a trademark refers to vendible commodities and a service mark to services provided. Blanding Automotive Center, Inc. v. Blanding Automotive, Inc., 568 So.2d 490 (Fla. 1st DCA 1990). In this case, we are dealing with the protectability of the trade name "Tortoise Island" and infringement and dilution by Tortoise Island Realty, Inc. In denying relief, the trial court ruled that the name "Tortoise Island" is "geographic," denoting an exclusive, high quality residential subdivision located in Satellite Beach, Florida, that its use by the plaintiff, as well as the defendant, had failed to garner a "secondary meaning," and that use of the picture of a tortoise or turtle in the Realty company's business sign, which was similar but not identical to the Association's logo and entrance sign, was not sufficiently similar to cause confusion as to services performed or potential injury to the Association's business reputation or dilution. We disagree and reverse. The facts in this case are not in substantial dispute. The name, Tortoise Island, was one selected by the developer/owner of the spoil island and lands, which eventually became the community for which the Homeowners Association was formed to serve. Prior to its development, the area had no name. The owner/developer chose the name because when he first purchased the

Trade name means any word, name, symbol, character, design, drawing, or device or any combination thereof adopted and used by a person to identify his or her business, vocation or occupation, or to distinguish it from the business, vocation or occupation of others.

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