Jet Air Freight v. Jet Air Freight Delivery, Inc.

• Decision Date: 13 June 1972
• Docket Number: No. 71--1022,71--1022
• Citation: 264 So.2d 35
• Parties: JET AIR FREIGHT, a California corporation, Appellant, v. JET AIR FREIGHT DELIVERY, INC., a Florida corporation and Jet Air Freight, Inc., a Florida corporation, Appellee.
• Court: Florida District Court of Appeals

Page 35

264 So.2d 35

175 U.S.P.Q. 298

JET AIR FREIGHT, a California corporation, Appellant, v. JET AIR FREIGHT DELIVERY, INC., a Florida corporation and Jet Air Freight, Inc., a Florida corporation, Appellee.

No. 71--1022.

District Court of Appeal of Florida, Third District.

June 13, 1972.

Rehearing Denied July 7, 1972.

Smathers & Thompson and Linwood Anderson, Miami, for appellant.

Fromberg, Fromberg & Roth, Miami, for appellee.

Before BARKDULL, C.J., and PEARSON and HENDRY, JJ.

PER CURIAM.

Jet Air Freight Delivery, Inc., and its wholly owned subsidiary, Jet Air Freight, Inc., both freight cartage companies, brought suit in the Circuit Court of Dade County, to enjoin the defendant, Jet Air Freight, an air freight forwarder, licensed by the Civil Aeronautics Board, from using the name Jet Air Freight in Dade and Broward Counties, Florida. Appellant-defendant seeks review of the final judgment and amended final judgment; appellee-plaintiff has filed a cross-appeal from the amended final judgment.

A firm which assembles and ships air freight is called an 'air freight forwarder' and is sometimes described as an 'indirect air carrier.' Airborne Freight Corporation v. Civil Aeronautics Board, 103 U.S.App.D.C. 206, 257 F.2d 210, 211 (1958). The federal regulations state in 14 C.F.R. § 296.2 (1971):

'There is hereby established a classification of air carriers, having the attributes of, and which are designated as, 'indirect air carriers'. Such classification shall include the following sub-classifications:

'(a) 'Air Freight Forwarder' means any indirect air carrier which, in the ordinary and usual course of its undertaking, assembles and consolidates or provides for assembling and consolidating such property or performs or provides for the performance of break-bulk and distributing operations with respect to consolidated shipments, and is responsible for the transportation of property from the point of receipt to point of destination and utilizes for the whole or any part of such transportation the services of a direct air carrier.'

A freight cartage company is essentially a trucking business performing a pick up and delivery service. It appears that the plaintiff is licensed by the Florida Public Service Commission.

Appellant-defendant, Jet Air Freight filed its answer denying appellee-plaintiffs' allegations for relief. It also filed a counter-claim against the appellee-plaintiffs asking for damages and that they be enjoined from using the name Jet Air Freight.

Upon trial of all the issues the trial judge made findings of fact and adjudicated the issues, all of which were set forth or incorporated by reference in the amended final judgment. The findings of fact which are incorporated in the amended final judgment by reference are summarized below.

Plaintiffs Jet Air Freight Delivery, Inc. (incorporated in Florida in 1960) and its wholly owned subsidiary Jet Air Freight, Inc. (formed in Florida in 1969) have done business in Florida continuously, exclusively as air freight cartage agents. They have acted for many air freight forwarders and the general public directly.

Plaintiffs refer to themselves as Jet Air Freight (except for telephone listings under the parent's name). They registered the fictitious name of Jet Air Freight in Dade and Broward Counties in 1969. Plaintiffs developed a substantial cartage business and excellent business reputation, as several witnesses testified. They became known throughout the trade and industry as Jet Air Freight.

Until 1969 defendant had no identity in Florida; it did not advertise or attempt to solicit business in Florida. It incorporated in California in 1959 as Jet Transportation, Inc. but changed its name to Jet Air Freight in 1967. Defendant is a nation-wide air freight forwarder which can and does perform the services of an air freight cartage agent. It first purchased cargo space on airlines destined for Miami in 1960, simply shipping cargo on air waybills with Jet Air Freight Delivery as consignee. Initially its Miami shipments were insignificant, and defendant utilized exclusively the cartage services of the plaintiffs. This arrangement lasted from 1960 until October, 1970, when defendant decided to perform its own cartage services here.

In June, 1969 defendant first attempted to register with the Florida Secretary of State to do business here as Jet Air Freight. Permission was denied apparently due to the similarity of these parties' names.

Nonetheless, defendant in September, 1969, first obtained a listing in the yellow and white pages of the local telephone directory as Jet Air Freight. This listing appeared directly above the Plaintiffs'. The same is true for the 1970 directories. Defendant, without obtaining any occupational licenses, also began and still is advertising and soliciting business under the name Jet Air Freight in Dade County.

The revenues defendant earns from performing its own cartage services throughout the country constitutes a small portion of its overall revenues, and Florida cartage revenues are only a minor portion of its total cartage revenues. Over the years, defendant acquired companies performing cartage services, which are now wholly owned subsidiaries. Defendant utilizes these subsidiaries and independent cartage agents, to perform some of its cartage work in various parts of the country. Defendant could use any of these corporations, or form a new corporation, to do its cartage work in Florida. However, it would prefer to use its own corporate name.

Presently, defendant competes directly with the plaintiffs for cartage business in Dade and Broward Counties. Since defendant can service plaintiffs' customers (even though defendant also acts as a freight forwarder) any solicitation or advertising by the defendant under the name Jet Air Freight can only hurt the plaintiffs' business. The defendant has a nation-wide vertically integrated operation as opposed to the plaintiffs' local family-owned horizontal operation.

Until 1969, the name Jet Air Freight was identified only with the plaintiffs, who developed an excellent business reputation, in Florida.

In 1969, plaintiffs' business was damaged as a result of the defendant's decision to perform its own cartage services under its own similar name and to list itself in the Greater Miami telephone directories, due to confusion and mix-ups. Testimony showed instances where shipments consigned to plaintiffs came into defendant's possession, and that it took several days to rectify the situation, resulting in a serious delay. Since the cartage business is highly competitive, this type of delay could result in the loss of a customer. Also, other freight forwarders, for whom plaintiffs performed cartage services, were deeply concerned about the similarity in names because they were competitors of the defendant. If the competing freight forwarders' shipments wound up in the defendant's hands, defendant could see who their customers were and solicit them. Plaintiffs would lose substantial revenues if any of its forwarders decided to use another cartage agent because of such confusion.

In addition, mail deliveries were mixed up, even when a post office box was used. Testimony further showed that plaintiffs would be forced out of business if defendant continued to be allowed to use the name Jet Air Freight in Dade and Broward counties. (The record contains no testimony that either party was presently doing business in any other part of Florida).

The lower court concluded that the plaintiffs have, over the years, used, developed and become identified by the trade name Jet Air Freight. The plaintiffs appropriated said name in Dade and Broward Counties approximately nine years prior to the defendant. Substantial confusion and turmoil and likelihood of additional confusion has resulted from the defendant's decision to advertise and solicit business under the name Jet Air Freight. If defendant is allowed to continue to use that name in Dade and Broward counties, plaintiffs will suffer grievous financial injuries. The same confusion would result even if the plaintiffs used the name Jet Air Freight Delivery, Inc. or Jet Freight, Inc. because of the similarity of the names.

See: 14 C.F.R. §§ 215.1--215.4 (1971).

The amended final judgment in pertinent part states:

'In addition, upon rehearing the Court is of the opinion that it is required by virtue of the operating authority issued to the defendant by the Civil Aeronautics Board under the name JET AIR FREIGHT to allow said defendant to carry out its interstate forwarding business, exclusive of local pickup and delivery services attendant thereto:'

'It is accordingly ORDERED AND ADJUDGED as follows:

'1. The Court finds that the equities are with the Plaintiffs and against the Defendant.

'2. The Plaintiffs are entitled to use the name JET AIR FREIGHT and the initials JAF as well as their corporate names for any and all business purposes in Dade County and Broward County, Florida. This includes, but is not limited to, advertisements, signs, solicitations, public relations and the white and yellow (regular and classified) pages of the telephone directories.

'3. The Defendant is hereby enjoined from using directly or indirectly the name JET AIR FREIGHT or the initials JAF for any business activity in Dade County or Broward County, Florida. However, this does not preclude the defendant from transporting freight into or out of Dade and Broward Counties under their own airbill stock with the name JET AIR FREIGHT imprinted thereon, nor is the Defendant precluded from showing JET AIR FREIGHT as the shipper on inbound freight or as the consignee on outbound freight on airline airbills covering its consolidations as a forwarder. However, once a shipment arrives in Dade or Broward Counties, the name JET AIR FREIGHT (unless it refers to the Plaintiffs) cannot be used by the Defendant in connection with any pickup or delivery services to or...