BEFORE THE WASHINGTON UTILITIES AND TRANSPORTATION COMMISSION WORLD WIDE MOVERS, INC. ) Complainant ) DOCKET NO. TV-991491 vs. ) ) INITIAL ORDER ON BRIEF ADJUDICATIVE EMERY INC. WORLDWIDE MOVING ) PROCEEDING DENYING COMPLAINT Respondent. ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ) 1 HEARING: The Washington Utilities and Transportation Commission (Commission) commenced a hearing to afford the parties the opportunity for oral statements in the Brief Adjudicative Proceeding in this docket at Olympia, Washington, on March 2, 2000, before Administrative Law Judge Lois Ellen Gold of the Washington Utilities and Transportation Commission upon due and timely notice to all interested parties. 2 PROCEEDING: World Wide Movers, Inc. (World Wide) filed a formal Complaint against Emery Inc. Worldwide Moving (Emery) on September 22, 1999, alleging that Respondent’s use of the name “Emery, Inc. Worldwide Movers” will mislead the public into believing that they are dealing with the Complainant and thereby will damage the Complainant and/or result in unfair competitive practices, contrary to the provisions of WAC 480-15-390. The Complaint requests that the Commission order Emery to cease and desist use of the name “Worldwide” in its business of operating as a motor freight carrier, including household goods, for compensation over the public highways within the state of Washington. 3 Emery filed an Answer to the Complaint on October 19, 1999, and a Written Statement on February 2, 2000. The Written Statement alleged that the Complaint was time-barred under RCW 81.04.235, but even if the Commission finds that the Complaint survives the time limitations of RCW 81.04.235, Respondent claims it is not in violation of WAC 480-15-390. 4 APPEARANCES: Gregory W. Haffner, attorney, Kent, Washington, represents Complainant World Wide Movers, Inc. Brian L. McCoy, attorney, Puyallup, Washington, represents Respondent Emery, Inc. Worldwide Moving. 5 CONCLUSION: The Commission has jurisdiction over this matter under Title 81 RCW, specifically Title 81.80 RCW, and chapter 480-15 WAC, having legal authority to regulate the rates, services, and practices of motor freight carriers, including household goods, providing services for compensation over the highways within the state of Washington. 6 The Complaint is Denied. The Complainant failed to show that Respondent’s use of the name “Emery, Inc. Worldwide Moving” will mislead the shipping public into believing that they are dealing with the Complainant and thereby will damage the Complainant and/or result in unfair competitive practices, contrary to the provisions of WAC 480-15-390. The Complaint is denied for these reasons in accordance with RCW 81.80.130 and RCW 81.80.340. MEMORANDUM 7 World Wide filed a Complaint against Emery on September 22, 1999, alleging that World Wide has operated for a period in excess of 50 years as a motor common carrier of household goods in the state of Washington under certificated authority issued by the Commission. Complainant states that it has spent considerable money, time, and effort in establishing the name “World Wide” in the household moving business throughout the state of Washington. 8 The Complaint alleges that Respondent recently obtained temporary authority from the Commission to operate as a motor carrier of household goods in the state of Washington and that Respondent’s use of the name “Emery, Inc. Worldwide Movers” will mislead the public into believing that they are dealing with the Complainant and thereby will damage the Complainant and/or result in unfair competitive practices, contrary to the provisions of WAC 480-15-390. World Wide requests that the Commission order Emery to cease and desist the use of the name “Worldwide” in its business of operating as a motor common carrier of household goods in intrastate commerce in the state of Washington. 9 On January 12, 2000, the parties conferred by telephone and agreed to conduct the Complaint as a Brief Adjudicative Proceeding. Pursuant to WAC 480-09-500, RCW 34.05.482, and RCW 34.05.485, the Commission determined that a Brief Adjudicative Proceeding was appropriate for resolving the issues raised in this proceeding. Prior to the hearing, each party submitted written statements of its view of the matter, as well as responses thereto, pursuant to WAC 480-09-500(2). On March 2, 2000, the parties presented oral statements by telephone. 10 There are two issues in this proceeding: Whether the Complaint is barred by the Statute of Limitations, pursuant to RCW 81.04.235 and whether Respondent’s name is deceptively similar to Complainant’s so as to mislead the shipping public, in violation of WAC 480-15-390. Is the Complaint barred by the Statute of Limitations? 11 Respondent cites RCW 81.04.235 as the basis for its claim that the Complaint is time barred. RCW 81.04.235 provides that “. . . All complaints against public service companies for recovery of damages not based on overcharges shall be filed with the Commission within six months from the time the cause of action accrues. . .” In a convoluted argument Respondent asserts that although the “Complaint is not for ‘the recovery of damages’ per se, it is intended to prevent future damage allegedly resulting from the use of a similar name”, and therefore RCW 81.04.235 is applicable to this proceeding. Respondent’s Written Statement, page 6. 12 The Respondent submits that Emery has been operating out of Graham, Washington, under its interstate authority for four years and under its temporary intrastate authority since March 30, 1999, notice of which was published in the Commission Docket April 12, 1999. Therefore, World Wide knew or should have known that Emery was operating in and around Pierce County for over four years, long before six months prior to filing its Formal Complaint with the Commission on September 22, 1999. 13 As support for its contention, Respondent asserts that “in 1998 Emery hauled a load of household goods to World Wide Movers’ Tacoma warehouse on behalf of Lynn Moving & Storage, (Lynn Moving) acting as subcontractor for World Wide and that Lynn Moving would have and did identify for World Wide the driver who would be hauling the load.” Respondent’s Written Statement, page 6 14 Although Respondent filed no evidence to show that Lynn Moving would have and did identify to World Wide that Emery would be hauling the load, the issue of what World Wide knew or didn’t know in 1998 is not controlling. The Complaint is not against a public service company to recover damages. Therefore, the Complaint does not come within the purview of RCW 81.04.235 and the Statute of Limitations contained therein does not apply to this proceeding. 15 For the reasons stated, Respondent’s request that the Commission dismiss the Complaint as untimely is denied. Will Respondent’s name mislead the shipping public into believing that they are dealing with the Complainant and thereby damage the Complainant and/or result in unfair competitive practices? 16 The gravamen of the Complaint is that Respondent’s use of the name “Emery, Inc. Worldwide Moving” will mislead the public into believing that they are dealing with “World Wide Movers, Inc.” and thereby will damage the Complainant and/or result in unfair competitive practices. Statutes and rules involved include WAC 480-09-500 and WAC 480-15-390. 17 As evidence that the shipping public will be mislead by Respondent’s name into believing that they are dealing with the Complainant, the Complaint includes as an appendix a Declaration of Dennis White, Secretary of World Wide. Mr. White states that during his twenty years of service with World Wide he has seen many examples of confusion on behalf of customers and creditors regarding the name of World Wide, and that these customers and creditors often refer to World Wide Movers as World Wide Moving. Declaration at page 1. Mr. White attaches two Exhibits to demonstrate his assertion. EA-1 is a Statement for Service from the Tacoma Public Utilities billed to World Wide Moving at its Tacoma address. Exhibit A-2 is a Statement for Services from the Tacoma Public Utilities billed to World Wide Mover, Inc. at the same address. 18 Complainant offers no probative support for the assertion that the shipping public, the consumer, will be mislead by the name of Respondent. In his Declaration Mr. White states that during the twenty years he has been employed by World Wide, he has seen many examples of confusion on behalf of customers and creditors regarding World Wide’s name. This confusion cannot be held to be specific to Emery, which has been at the Graham, Washington, address for only four years, and would give support to the Respondent’s claim that the phrases “World Wide Movers/Moving” and “Worldwide Movers/Moving” are descriptive terms and generic to the industry of motor freight carriers, including household goods, for compensation over the public highways within the state of Washington. 19 The Respondent’s February 2, 2000, Written Statement attached exhibits which included photocopies of the following documents: Certificate of Incorporation issued to Emery, Incorporated, Worldwide Moving; Federal Highway Administration Permit issued to Emery Inc., Worldwide Moving; Motor Carrier Permit No. TCC-11854 issued to Emery Inc. Worldwide Moving, signed by the Secretary of the Washington Utilities and Transportation Commission; a letter from Commission Staff to Respondent wherein Staff stated that a complaint had been filed by World Wide Movers, Inc. of Lynnwood, Washington, and offered suggestions as to options available to the parties to facilitate resolution of the matter prior to an evidentiary proceeding; and yellow page advertisements from the sections in the Tacoma, Washington, and Graham, Washington, telephone directories which listed motor transport companies that move household goods. 20 The Commission takes the official action of issuing a permit only after the applicant’s name and qualifications have been reviewed. The subsequent letter from Commission Staff notifying Respondent that a complaint had been filed and suggesting options for a negotiated resolution of the matter is not an official act of the Commission and is no indication as to whether the Commission agrees or disagrees with the Complainant’s allegations. 21 A review of the Respondent’s exhibits of motor transport company advertisements in telephone directories reveals that several business entities use variations of the words “Worldwide Movers/Moving and World Wide Movers/Moving”. This fact was discussed in Oral Statements. Complainant asserted that companies using these terms, other than Worldwide Movers, were interstate carriers and the advertisements were not probative of the Respondent’ s position that the term “Worldwide and/or World Wide” was of common usage in the industry and therefore could not be proprietory to any specific carrier. However, there is no indication in the advertisements whether a carrier operates under interstate and/or intrastate authority. For example, Mayflower Worldwide Moving Service’s advertisement in the Tacoma, Washington, yellow pages includes what appears to be two apparently affiliated carriers, Conrad Moving & Storage and World Wide Movers, Inc. There is no explanation or indication in the advertisement whether Mayflower is an interstate carrier and subcontracts to the two listed carriers or which of the listed companies has what kind of certificated authority, intrastate and/or interstate. Wheaton World Wide Moving and Stevens Worldwide Van Lines have similar multi-company advertisements in the Tacoma directory. The Olympia and Seattle yellow pages list various companies that use the terms “World Wide/Worldwide” in one form or another. 22 The use of a name that is the distinctive feature of a trade name already in use by another is not permissible if such use tends to confuse, in the shipping public’s mind, the business of such person with that of the other. Seattle Endeavors, Inc. v Mastro, 123 WN.2d 339, 346, 868 P.2d 120 (1994). However, when a phrase or word in various forms is of common usage in an industry it is not proprietory, but descriptive, and is considered a term of the trade. 23 For the reasons stated the Complaint is denied. FINDINGS OF FACT 24 1. On September 22, 1999, World Wide filed a Formal Complaint against Emery, alleging that respondent’s use of the name “Emery, Inc. Worldwide Movers” will mislead the public into believing that they are dealing with the Complainant and thereby will damage the Complainant and/or result in unfair competitive practices, contrary to the provisions of WAC 480-15-390. The Complaint requests that the Commission order Emery to cease and desist use of the name “Worldwide” in its business of operating as a motor common carrier, including household goods, in intrastate commerce in the state of Washington. 25 2. On October 19, 1999, Emery filed an Answer to the Complaint denying that it was in violation of WAC 480-15-390. 26 3. On February 2, 2000, Emery filed a Written Statement, alleging that the Complaint was time-barred under RCW 81.04.235. 27 4. Emery failed to present probative evidence that World Wide’s Complaint is for recovery of damages as contemplated by RCW 81.04.235 and therefore should be dismissed as time-barred under RCW 81.04.235. 28 5. World Wide failed to show through the testimony of public witnesses or by other competent evidence that the public will be mislead by Emery’s use of the word “Worldwide” in its name and believe that they are dealing with the Complainant, thereby damaging the Complainant and/or resulting in unfair competitive practices, contrary to the provisions of WAC 480-15-390. CONCLUSIONS OF LAW 29 1. The Washington Utilities and Transportation Commission has jurisdiction under RCW 81.80 and other authority both over the subject matter of and the parties to this proceeding. 30 2. Complainant World Wide Movers, Inc. requests that the Commission order Respondent Emery, Inc. Worldwide Moving to cease and desist use of the name “Worldwide” in its business of operation as a motor common carrier of household goods in intrastate commerce in the state of Washington. The evidence does not support such an Order. RCW 81.80.130, RCW 81.80.340, and WAC 480-15-390. 31 3. The Respondent fails to present convincing argument that the Complaint comes within the purview of WAC 480-15-390 and offers no probative evidence to support the request that the Commission dismiss the Complaint as time barred by WAC 480-15-390. ORDER IT IS ORDERED That 32 1. The Formal Complaint of Complainant World Wide Movers, Inc. is denied. 33 2. The request of Respondent Emery, Inc. Worldwide Moving that the Complaint be dismissed is denied. DATED at Olympia, Washington, and effective this 8th day of March, 2000. WASHINGTON UTILITIES AND TRANSPORTATION COMMISSION LOIS ELLEN GOLD Administrative Law Judge 34 Notice to parties: Administrative reviews of Brief Adjudicative Proceedings are governed by RCW 34.05.488 and 491, and by WAC 480-09-500. Any party may request review of an initial order in a brief adjudication by stating the request to the Commission within 21 days after service of the initial order. A request for review should contain an explanation of the party’s view of the matter, with a statement of reasons why the initial order is incorrect, and a statement that the party has sent a copy to all other parties. Responses may be filed within 10 days after service of a request for review.