In the Matter of a Mail Dispute Between:

DAVID GREENE
and
JACK C. WALDON

P.S. Docket No. MD-120

08/07/91

Grant, Quentin E., Chief Administrative Law Judge

APPEARANCE FOR DISPUTANT DAVID GREENE: NONE

APPEARANCE FOR DISPUTANT JACK C. WALDON: NONE

INITIAL DECISION

The Office of Field Legal Services, Western Division, United States Postal Service, has forwarded this mail dispute for resolution pursuant to Domestic Mail Manual § 153.72 and 39 C.F.R. Part 965.

Both parties have filed submittals under the Rules of Practice. Only Disputant Greene has filed comments permitted by $S965.6. The following findings of fact are based on such submittals and comments together with documentation furnished to the postmaster prior to transmittal of the case to the Judicial Officer.

FINDINGS OF FACT

1. The disputants are David Greene, P. O. Box 660, Rogue River, Oregon 97537 and Jack C. Waldon, 3871 Pleasant Creek Rd., Rogue River, Oregon 97537.

2. The mail in dispute is that addressed to THE LOUDCRIER at 1975 Sykes Creek Road or at P. O. Box 1410, Rogue River, OR 97537.

3. THE LOUDCRIER is a religious periodical published monthly commencing about October 1989.

4. The three persons originally involved with THE LOUDCRIER, in what appears to have been an informal partnership arrangement, were disputants Greene and Waldon and one Kathleen Reeves who resided in California and provided some financing for the publication.

5. Greene and Reeves allowed Waldon to assume control of the business and financial affairs of the publication.

6. Waldon, as general manager of THE LOUDCRIER, filed with the post office at Rogue River, OR an application for a post office box on August 22, 1989. The application was accepted and P. O. Box 1410 was assigned for mail addressed to the publication.

7. On October 10, 1989, Jack Waldon filed with the Oregon Secretary of State an assumed business name registration for THE LOUDCRIER. It contained the names Jack C. Waldon and David Greene as the registrants and what appear to be be their signatures. Disputant Greene says that his signature was not written by him but that Waldon may have signed Greene's name with his consent.

8. Apparently differences about the business arose among Waldon, Greene and Reeves in September and October 1990 which resulted in Waldon's separating from Greene and Reeves and establishing a corporation called "The Little Company" for the purpose, among others, of publishing religious materials. It appears that Waldon transferred the assets of THE LOUDCRIER business to the new corporation. In March 1991, he published a "legal notice" that no business whatsoever was to be conducted under the name THE LOUDCRIER without his written permission and that THE LOUDCRIER was no longer being published.

9. This mail dispute started on March 27, 1991, when disputant Greene filed with the Rouge Postmaster an order (PS Form 3575) purporting to change the mailing address for THE LOUDCRIER from P. O. Box 1410 to his residential address, 1975 Sykes Creek Road. The postmaster refused to honor the order because the box had been rented by Jack Waldon, not Mr. Greene. The disputed mail is now being held at the Rouge Post Office.

10. In an apparent attempt to establish, or reestablish, control over THE LOUDCRIER and mail addressed to the publication, Greene, Reeves and one Lois Smith, on April 23, 1991, filed an amended assumed business name registration for THE LOUDCRIER with the Secretary of State showing themselves as the registrants and Jack Waldon as a withdrawing registrant. Mr. Waldon did not sign this amendment in the space provided for signature of a withhdrawing registrant. Mr. Greene purported to effectuate Waldon's withdrawal as the latter's authorized representative. Waldon did not designate Greene his authorized representative for that purpose.

11. On May 14, 1991, Jack Waldon filed an amendment to the assumed business name registration showing himself as the authorized representative of the business and David Greene as a withdrawing registrant. A signature purporting to be that of David Greene appears as a withdrawing registrant. The Secretary of State appears to have added the names Lois Smith and Kathleen Reeves as withdrawing applicants "per phone call." This notation does not identify the person or persons involved in the phone call but Waldon, presumably, was the recipient thereof because his was the only telephone number shown on the amendment.

12. On May 14, 1991, Jack Waldon also filed with the Oregon Secretary of State an application for a new trade and service mark registration for THE LOUDCRIER consisting of the name LOUDCRIER and a depiction of a man with a bell and scroll and an angel with a trumpet descending from above. Waldon has placed in the record a copy of such application marked by the Office of the Secretary of State "FILED" which, under § 647.045 of the Oregon Revised Statutes Annotated, constitutes a certificate of registration.

13. On June 10, 1991, the Rogue Postmaster called the Office of the Secretary of State and was advised that, pursuant to the amendment filed by Waldon on May 14, 1991, he is the current registrant of the assumed business name THE LOUDCRIER.

CONCLUSIONS OF LAW

The evidence discloses no written agreement between the disputants concerning the ownership and publication of THE LOUDCRIER. The evidence also falls short of proving the terms of an oral agreement. Disputant Greene appears to have allowed disputant Waldon to assume nearly total control of the business and financial aspects of the operation during the time they worked together. Waldon rented P. O. Box 1410 for the business. He filed the original assumed name business registration for THE LOUDCRIER and, according to advice given the postmaster by the Office of the Secretary of State on June 10, 1991, is the current registrant of that assumed name. Waldon is also the certified registrant of the trade or service mark which includes the name THE LOUDCRIER.

Disputant Greene's claim has considerable equitable appeal. However, the preponderance of the evidence, including the application for P. O. Box 1410 and documents filed with the Oregon Secretary of State, gives disputant Waldon the superior right to direct the delivery of the disputed mail.

This decision determines only the right to delivery of the mail in dispute, not the ownership thereof. Should disputant Waldon receive any mail clearly intended for disputant Greene, he will be responsible for forwarding it to him.

The attached proposed order should be issued.