980616.docx

DECISION MEMORANDUM
TO:COMMISSIONER HANSEN
COMMISSIONER NELSON
COMMISSIONER SMITH
MYRNA WALTERS
TONYA CLARK
DON HOWELL
STEPHANIE MILLER
DAVE SCHUNKE
RON LAW
DAVID SCOTT
WORKING FILE
FROM:BRAD PURDY
DATE:June 16, 1998
RE:CASE NO. M-8357-1
APPLICATION OF ROY & NILA JACKSON, DBA CAPITOL COURIERS FOR A CERTIFICATE OF MOTOR CARRIER AUTHORITY/PROTEST OF CAPITOL COURIERS, INC.
On February 24, 1998, Roy and Nila Jackson, DBA Capitol Couriers (The Jacksons) filed an Application for a Motor Carrier permit.  On April 15, 1998, a protest to the Jacksons Application was filed by Capitol Couriers, Inc.  According to the protest, Capitol Couriers, Inc. is an Idaho Corporation (incorporated on February 28, 1997) currently operating as a motor carrier in the state of Idaho under Commission Permit No.8288  issued on May 13, 1997.  Moreover, Capitol Couriers, Inc. has a certificate of registration of trademark-service mark, effective March 3, 1997.
Capitol Couriers, Inc. objects to the Jacksons attempted use of its name.  Capitol Couriers, Inc. contend that the Jacksons must file an application for an assumed business name certificate under current law with the Secretary of State by January 1, 1999 but that Capitol Couriers, Inc. is exempt from such requirement because it is a “formally organized or registered entity” under Title 53, Chapter 5 of the Idaho Code.
Capitol Couriers, Inc. argues that the use of the name “Capitol Couriers” by the Jacksons under a Certificate issued by this Commission would constitute an infringement of not only the certificate of authority previously granted to Capitol Couriers, Inc. but also an infringement of the rights of Capitol Couriers, Inc. under Title 48, Chapter 5 of the Idaho Code.
On June 15, 1998, the Jacksons faxed to the Commission their response to the protest of Capitol Couriers, Inc.  According to the Jacksons, they filed a “Certificate of Assumed or Fictitious Name” identified as filing number 8962335, with Ada County on December 12, 1989, under the name “Capital Couriers.”  The Jacksons further state that they “rerecorded the name with the Secretary of State’s office” last month noting that the Secretary of State recently assumed the function of receiving assumed business name filings from the counties approximately a year and one-half ago.  The Jacksons state they have conducted business in the city of Boise continuously every day since December 12, 1989.  The Jacksons further contend that when they initiated their business, they reviewed this Commission’s filing requirements and determined at that time that because their business was confined to the Boise metropolitan area, the Commission’s regulations did not apply to them.
The Jacksons state that their business is limited to transporting paper products.  They do not haul cargo.  Because they have recently had occasion to make deliveries to Nampa, they have decided to seek motor carrier authority from this Commission.  As a result, the Jacksons sought and obtained temporary motor carrier authority from this Commission which expired June 13, 1998.
The Jacksons contend that Capitol Couriers, Inc.’s business was initiated in January of this year and that it was only after the Jacksons sent a letter to Capital Couriers, Inc.’s representative, Mark  Kramer, demanding that Capitol Couriers, Inc., cease using that name that Capitol Couriers, Inc. made its filing with the Secretary of State for a trademark.  The Jacksons indicate that this matter may eventually result in civil litigation.
Staff Analysis
Staff notes that the Jackson’s were conducting business under the assumed name of Capitol Couriers prior to February 28, 1997, when Capitol Couriers, Inc. was incorporated .  It is Staff’s opinion that any issues related to the rights granted to a motor carrier by the issuance of a trademark (relevant statutes are found in Title 48, Chapter 5 of the Idaho Code) fall outside the scope of this Commission’s jurisdiction.  Following the implementation of the Interstate Commerce Commission Termination Act, the Commission’s  regulation of motor carriers has been reduced to matters pertaining to safety and insurance.  
Moreover, the Commission does not have any rules, nor are there any relevant statutes, pertaining to the business names that an applicant for a motor carrier permit may choose to use.  It is Staff’s position that it would not create any administrative difficulties if the Commission were to issue a permit to “Roy and Nila Jackson, DBA Capitol Couriers.”  The Jacksons are not incorporated so the term “Inc.” does not appear following the name Capitol Couriers.  Moreover, any proceedings that are initiated or any actions that are taken by this Commission with respect to a motor carrier reference that motor carrier’s permit number.
Commission Decision:
How does the Commission wish to rule on this case?

Brad Purdy
cm\M:m83571.bp