Consolidated Elec., Etc. v. Consolidated Elec. , 355 So. 2d 853 ( 1978 )

355 So. 2d 853 (1978)

CONSOLIDATED ELECTRIC SUPPLY, INC., Appellant,
v.
CONSOLIDATED ELECTRICAL DISTRIBUTORS SOUTHEAST, INC., Appellee.

No. 77-55.

District Court of Appeal of Florida, Third District.

March 7, 1978.

Harold Rosen and Paul S. Berger, Miami Beach, for appellant.

Fleming, O'Bryan & Fleming and William D. Ricker, Jr., Fort Lauderdale, for appellee.

Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.

HENDRY, Judge.

Appellant, Consolidated Electric Supply, Inc., plaintiff below, appeals from an order denying its motion for rehearing. The motion for rehearing was filed in response to the trial court's dismissal of appellant's amended complaint which sought both injunctive relief and damages for deceptive trade name infringement against appellee, Consolidated Electrical Distributors Southeast, Inc., defendant below.

After carefully reviewing appellant's amended complaint and attached exhibits, in light of the applicable case law, it is our opinion that no cause of action for deceptive trade name infringement was established. Firstly, the names Consolidated Electric Supply, Inc., and Consolidated Electrical Distributors Southeast, Inc. are not so similar as to establish the prior registrant with common law trade name protection. See United Life Ins. Co. v. United Ins. Co., 70 So. 2d 310 (Fla. 1954); Richard Store Co. v. Richard's Warehouse Sales & Auction Gallery, Inc., 63 So. 2d 502 (Fla. 1953). Secondly, in apparent realization of the aforementioned dissimilarity, appellant alleged that both corporations had acquired a secondary trade name, "Consolidated," which caused confusion among the parties' suppliers and customers. Assuming such allegation as true, the word "consolidated," being generic in nature, could not be appropriated for trade name purposes. Miller Brewing Company v. G. Heileman Brewing Company, Inc., 561 F.2d 75 (C.A. 7th 1977).

Accordingly, appellant having failed, as a matter of law, in establishing a cause of action for deceptive trade name infringement, the order appealed from is hereby affirmed.

Affirmed.