In the Matter of the Complaint Against

VITAHAIR
Box 1344 at
Hallandale, Florida 33009

P.S. Docket No. 6/76;

01/16/79

Cohen, James A.

APPEARANCE FOR COMPLAINANT:
H. Ric hard Hefner, Esq.
Law Department U.S. Postal Service
Washington, D.C. 20260

APPEARANCE FOR RESPONDENT:
Joel Heim
1420 Diplomat Parkway
Hollywood, Florida 33019

POSTAL SERVICE DECISION
ON PETITION FOR SUPPLEMENTAL ORDER

In accordance with the Order on Motion for Extension and Postal Service Decision dated october 10, 1978, a mail stop order of the same date was issued against Vitahair at Box 1344, Hallandale, Florida 33009. By subsequent order the return portion of the mail stop order was stayed during the pendency of various motions filed by Respondent. On November 1, 1978, Complainant filed a Petition for Supplemental Order under 39 C.F.R. § 952.30. The petition alleges that Respondent is evading the terms of Mail Stop Order No. 78-46 by selling the product Vitahair through Box 1347, employing essentially the same advertising claims which had been previously adjudged false.

Respondent has filed a reply to the Petition for Supplemental Order. Respondent alleges that (1) the Complaint has been brought against the name of a product which is a non-entity and therefore should be dismissed; (2) in this proceeding Complainant has waived its right to bring this action on the advertisement giving rise to the petition; (3) the advertisement giving rise to the petition differs from the advertisements which were the subject of the Postal Service Decision and therefore a new action must be brought; (4) the distribution of the advertisement predates the issuance of the mail stop order; and (5) Respondent has been hampered in its reply to the petition because it has not received copies of the exhibits. As a result Respondent requests a full hearing, which if not granted it alleges would deprive it of property without due process of law.

The Complaint was filed against the trade name or trade style Vitahair. A trade name is a commercial signature applying to a business and its good will. Cf. Southwestern Bell Telephone Co. v. Nationwide Independent Directory Service, Inc., 371 F. Supp. 900 (W.D. Ark. 1974); Chayt v. Darling Retail Shops Corp., 175 F. Supp. 462 (D. Md. 1959) (which discuss the use of trade names). The use of the trade name was sufficient to place Diet Lake, Inc., through its president, Joel Heim, on notice of the filing of the Complaint and subsequent proceedings. Diet Lake, Inc., identified through its trade name, Vitahair, is a person within the meaning of 39 C.F.R. § 932.5 and the mail stop order as issued applies to the corporation and its principals.

The advertisement which is the subject of the Petition for Supplemental Order was not one of the advertisements attached to the Complaint. However an identical exhibit except for the postal box number was introduced and received into evidence as Complainant's Exhibit 9. By the receipt of Exhibit 9 into evidence it became a part of the record on which the initial and final agency decisions were based. There was thus no waiver by Complainant with respect to Exhibit 9. Moreover even if Exhibit 9 was not the subject of these decisions its contents are so nearly identical to the contents of the exhibits attached to the Complaint that the conclusions regarding the representations of all three of the exhibits are equally applicable.

Respondent's assertion regarding access to the exhibits had been considered previously, and has been considered again in connection with the Petition for Supplemental Order. The exhibits have at all times been available to Respondent. The alleged lack of availability of the exhibits serves as no basis to deny the Petition for Supplemental Order.

Regardless of when Respondent's advertisement bearing the address of Box 1347 was distributed, Respondent is engaged in a similar enterprise at a different address, which constitutes an evasion of the effect of Mail Stop Order No. 78-46. Under such circumstances a supplemental order is an appropriate remedy.

The petition establishes a prima facie case which has not been rebutted by Respondent's reply and no matters of fact are in dispute. Therefore an oral hearing is not required.

Accordingly a supplemental order under 39 U.S.C. § 3005 will be issued forthwith as requested, with the return portion stayed pending a decision on Respondent's Motion for Reconsideration.