In the Matter of a Mail Dispute
Between:                                                               )
                                                                               )
EDWIN G. BLAKE                                                   )
                                                                               )
and                                                                         )
                                                                               )
SONJA HAAG-DUCHARME                                    )    P. S. Docket No. MD-197

APPEARANCE FOR DISPUTANT BLAKE:               Edwin G. Blake, Pro Se
P. O. Box 207
North Granby, CT 06060-0207

APPEARANCE FOR DISPUTANT DUCHARME:       Bruce M. Read, Esq.
Shepard & Read
P. O. Box 1092
Kennebunkport, ME 04046-1092

INITIAL DECISION

This mail dispute was forwarded for resolution pursuant to Domestic Mail Manual Transition Book § 153.72, which requires Regional Counsel to forward certain unresolved mail disputes to the Judicial Officer for decision. The mail in dispute is addressed to Idlease, P.O. Box 3086, at Kennebunk, ME 04043-3086 and Idlease, P.O. Box 3086, at Kennebunkport, ME 04046-3086. Edwin G. Blake ("Disputant Blake") filed a timely submittal as required under 39 C.F.R. § 965.5. He has also filed comments as permitted under 39 C.F.R. § 965.6 and a number of motions that will be considered during the course of this initial decision.

Counsel for Sonja Haag-Ducharme ("Disputant Ducharme") filed an untimely submittal which should have been mailed by September 23, 1993, but which bears a postmark of September 26, 1993. I have given discretionary consideration to the Ducharme submittal in reaching a decision in this matter, since it was received before the expiration of the comment period and Disputant Blake had the opportunity to file comments on it.^1/ I have not relied upon the comments and accompanying documentation filed by counsel for Disputant Ducharme on October 19, 1993, since they were untimely filed and, in any event, add nothing of substance to the evidence already in the record.^2/

The following findings of fact and conclusions of law are based upon the submittals and accompanying documentation filed by the parties, the comments filed by Edwin Blake, and the documentation forwarded by the Office of Field Legal Services.

FINDINGS OF FACT

1. Prior to May 1988, the Idlease Guest Resort located at Route 9, Kennebunk, Maine, was owned and operated under that name by Joseph N. and Margaret A. Sawyer.

2. On May 17, 1988, Edwin G. and Sandra R. Blake ("the Blakes"), as trustees of Gordon's Family Trust No. 9, entered into a Mortgage and Security Agreement with Maine National Bank for the purchase of "The Idlease Guest Resort" (Mortgage and Security Agreement, Schedule A ).^3/ In addition to the real estate, the Mortgage and Security Agreement included all of the items of personal property "situated on or affixed to" the property (id.). The financial arrangements also included as security, "Debtor's good will, name, trade names, trade marks, trade secrets, customer lists," etc. (Financing Statement dated May 17, 1988, filed with the York County Registry of Deeds and recorded at Book 4074, Page 011, signed by the Blakes and identifying Gordon's Family Trust No. 9 and the Blakes as Debtors).

3. The Blakes retained the name Idlease Guest Resort and took over P.O. Box 3086 in Kennebunk to receive mail addressed to the resort. On November 15, 1988, Sandra Blake, who gave her title as assistant manager, applied for a Kennebunkport post office box in the name of the Idlease Guest Resort. Mrs. Blake, who indicated that the box would be used for doing business with the public, was assigned box number 3086 (P.S. Form 1093).

4. On May 21, 1991, the Blakes filed a voluntary petition in U.S. Bankruptcy Court, District of Maine (Portland). On November 4, 1991, creditor New Maine National Bank moved to substitute the Federal Deposit Insurance Corporation in its place. On January 8, 1992, the Bankruptcy Court granted the motion of the U.S. Trustee to convert the case from a voluntary action under Chapter 11 to an involuntary proceeding under Chapter 7 (Bankruptcy Court docket sheets).

5. On December 27, 1991, Edwin Blake filed change of address forms (P.S. Form 3575) directing that mail addressed to the Idlease Guest Resort at either P.O. Box 3086, Kennebunkport, or 241 Wells Road, Kennebunk, be forwarded to P.O. Box 570, Unionville, Connecticut.

6. On January 10, 1992, Disputant Blake filed a Business Registration form in Kennebunk, Maine, registering "The Idlease, Idlease Guest Resort, and Idlease Off-Season", as hotel reservations and marketing businesses owned by Edwin Blake-GFT (presumably referring to Gordon's Family Trust) as sole proprietorships. The location of the businesses was left blank and the mailing address of the businesses was given as P.O. Box 3086, Kennebunk, Maine. A notation at the bottom, apparently made by the clerk who accepted the form, states:

"This is an information form only. Sole Proprietorship/business name form never filed."

7. On February 25, 1992, Recoll Management Corporation, as attorneys-in-fact for Federal Deposit Insurance Corporation, as receiver of New Maine National Bank, conveyed all of its "right, title, and interest" in the real estate "with all of the buildings and improvements thereon" which comprises the Idlease Resort property to Bradley S. Ducharme and Sonja E. Haag-Ducharme (Quitclaim Deed Without Covenant).

8. On or about February 26, 1992, William Howison, the Trustee in the Blake bankruptcy proceeding, submitted a Notice of Abandonment Of Personal Property to the Bankruptcy Court. The Notice stated in pertinent part as follows (Notice Of Abandonment Of Personal Property By The Trustee) :

Trustee ... hereby abandons any interest of the Estate of Edwin G. and Sandra R. Blake in any personal property located on property known as the Idle-Ease Resort, located in Kennebunk, Maine. The reason for the abandonment is that the Federal Deposit Insurance Corporation, as the successor to Maine National Bank, has as (sic) security interest in the personal property pursuant to a Mortgage and Security Agreement recorded at Book 4074, Page 011 of the York County Registry of Deeds.... The Trustee also abandons any interest which the Estate of Edwin G. and Sandra R. Blake may have in the ... telephone number for the Idle-Ease Resort and the post office box used in connection with the operation of the Idle-Ease Resort.

9. On February 28, 1992, Sonja Haag-Ducharme executed two business documents. One was a State of Maine form entitled "Certificate Of Sole Proprietor Adopting Name Other Than His Own". On that form, Disputant Ducharme stated that she intended to engage in the motel business under the name "Shorelands Guest Resort". The other form was a Business Registration form filed in Kennebunk, registering "Shorelands Guest Resort", a motel located at Route 9, Kennebunk, and having a mailing address of P.O. Box 3086, Kennebunkport, as a sole proprietorship owned by Disputant Ducharme.

10. On March 16, 1992, Sonja Haag-Ducharme filed an application for post office box service (P.S. Form 1093) in the name of the "Idlease and Shorelands Guest Resort" located at Route 9, 241 Wells Road, Kennebunk. She was assigned box number 769 by the Kennebunkport Post Office. On May 4, 1992, Disputant Ducharme filed a change of address form with the post office directing that mail addressed to Idlease Guest Resort, P.O. Box 3086, Kennebunkport, be forwarded to P.O. Box 769, Kennebunkport.

11. On June 28, 1992, Edwin Blake filed change of address forms directing that mail addressed to his family, to the Idlease, or to GFT, Inc., at 241 Wells Road, P.O. Box 3086, Kennebunk/Kennebunkport, be forwarded to 51 Pleasant Street, P.O. Box 570, Burlington, Connecticut.

12. In January and February of 1993, Edwin Blake filed various forms in Maine and Connecticut, registering or seeking to protect the names "Idlease", "Idlease Guest Resort", "Getaway For Two in Kennebunkport, Maine" and "Idlease Off-Season."^4/ On each of these documents Mr. Blake described his business as providing lodging, lodging reservations, and related services, sometimes adding "and incidental goods".

13. On January 28, 1993, Edwin Blake filed another change of address form with the post office directing that mail addressed to Idlease, P.O. Box 3086, Kennebunk, be forwarded to 51 Pleasant Street, Burlington, Connecticut commencing February 1, 1993.

14. Currently, Disputant Blake uses the name "Idlease (TM)" in the advertising brochures he uses to promote the sale of vacation packages, which include lodging and dining in the Kennebunkport area. The ads employ the slogan "Getaway For Two in Kennebunkport Maine (TM)", and include an address of P.O. Box 3086, Kennebunkport. The stationery Disputant Blake uses in his business is headed "The Idlease Guest Resort (TM)" and employs the slogan "Getaway For Two in the Kennebunks of Maine." The address of P.O. Box 570, Unionville, Connecticut, is printed as the "Winter Address."

Sonja Haag-Ducharme advertises in tourist industry publications under the name "Idlease & Shorelands Guest Resort", giving the address of Route 9, P.O. Box 769, Kennebunkport, Maine.^5/

CONCLUSIONS OF LAW

1. Both Edwin G. Blake and Sonja Haag-Ducharme claim that they are entitled to mail addressed to Idlease at Box 3086 in Kennebunk and Kennebunkport, Maine. Box 3086 has been used by the owners of the Idlease Guest Resort for business mail concerning the resort for many years. The current owners of the property that has been known as the Idlease Guest Resort are Bradley S. Ducharme and Sonja E. Haag-Ducharme. After the Ducharmes purchased the resort property in 1992, Disputant Ducharme began operating it under the name Idlease and Shorelands Guest Resort.

2. Since 1992, Edwin Blake has operated a lodging reservations and related service business for the Kennebunk and Kennebunkport area, using the name Idlease and variations thereof, such as Idlease Guest Resort and Idlease Off-Season.^6/

"[W]here, as here, there is a mail dispute between businesses with the same name, delivery is to be made to the business that is the most likely recipient intended by the sender, which is usually the business operating for the longer time under the common trade name." Safeguard Business Systems, Inc. and Jim and Cathy Clement, P.S. Docket No. MD-136, sl. op. at 5 (February 7, 1992), and cases cited. Disputants Blake and Ducharme both operate businesses which use the name Idlease or some variation thereof. It is most likely that mail addressed to Idlease at Box 3086 is intended for the motel property owned by the Ducharmes, which has been called the Idlease and has used Box 3086 for business for many years, rather than the reservation service begun by Disputant Blake in 1992.

3. Disputant Blake claims that he has the sole legal right to use the name Idlease, alleging that the name Idlease Guest Resort did not convey to the Ducharmes as part of their purchase of the resort property from Recoll Management Corporation. While the attorney who represented the Federal Deposit Insurance Corporation in the foreclosure sale of the resort property has stated his opinion that the name Idlease Guest Resort conveyed with the property (Exhibit 5 to Disputant Ducharme's submittal), there is no specific mention of such conveyance in the evidence in this record.^7/ However, even assuming, arguendo, that Disputant Blake is correct in alleging that the name Idlease was not purchased with the resort, that does not necessarily mean that the right to use the name belongs exclusively to Disputant Blake.

Part of Disputant Blake's claim to sole ownership of the name Idlease is premised on various forms that he has filed with the governments of Maine and Connecticut, registering Idlease and certain variations thereof, as trade names, trade marks, or names under which he is conducting business. The statutes underlying such business registrations make it clear that the registrant must already have the sole right to the use of the name before he or she can properly register that name with the governmental entity. See, for example, Me. Rev. Stat. Ann., tit. 10 § 1522, 2D (1980). Accordingly, I find that Disputant Blake has not established an exclusive right to the use of the name Idlease.

4. In any event, I find it unnecessary to resolve the issue of ownership of the name Idlease in the context of this proceeding. It is well established that a mail dispute determination "is only for the purpose of discharging the Postal Service's delivery of mail responsibilities in the absence of an agreement of the parties or a court order." Johnnie W. Dillehay and Charles W. D'Ary , P.S. Docket No. MD-37. sl. op. at 5 (October 31, 1988). See also Domestic Mail Manual Transition Book § § 153.71, 153.721.^8/ Any dispute between the parties concerning ownership of the name Idlease should be resolved in another, appropriate forum.

5. I find that all mail addressed to Idlease at P.O. Box 3086 Kennebunk, ME 04043-3086, or P.O. Box 3086, Kennebunkport, ME 04046-3086, should be delivered as instructed by Sonja Haag-Ducharme.^9/ Any mail addressed to Edwin Blake, to members of his family, or to GFT, Inc., at those same post office boxes, without mention of the name Idlease, should be delivered as directed by Edwin Blake.

6. This decision only determines the right to delivery of the mail in dispute, and not its ownership.^10/ In the event that Disputant Ducharme receives mail clearly intended for Disputant Blake, she is responsible for assuring that such mail is forwarded to him.^11/

Judith A. Dowd
Acting Chief Administrative Law Judge

1/ Disputant Blake's Motion For Default Judgment which was filed on September 24 and resubmitted on September 27, 1993, is denied. Under the rules of practice governing mail dispute proceedings, the entry of a default judgment for failure to file a timely submittal is discretionary with the presiding officer. 39 C.F.R. § 965.7. See also, Celia Schmidt and Richard C. Kenyon, P.S. Docket No. MD-44, sl. op. at 1 (February 1, 1989); Atlas Communications Systems, Inc. and John and Wendy Olesky, P.S. Docket No. MD-172, sl. op. at 4 (March 31, 1993). For the reasons stated above, I have chosen to give discretionary consideration to Disputant Ducharme's submittal.

2/ Since I am excluding Disputant Ducharme's comments and accompanying documentation as untimely filed, I find it unnecessary to rule on Disputant Blake's Motion To Exclude Exhibit filed on October 22, 1993, seeking to exclude from the record the Maine Department of Labor Unemployment Insurance Commission decision which was attached as Exhibit 1 to Disputant Ducharme's comments.

3/ Edwin Blake's Motion To Exclude Exhibit filed on September 27, 1993, seeking to exclude the Mortgage and Security Agreement from the record as irrelevant and prejudicial is denied. The standard for admission of evidence in mail disputes is relevance and materiality, unless the probative value of the evidence is "substantially outweighed by the danger of unfair prejudice" or considerations such as needless presentation of cumulative evidence. 39 C.F.R. § 965.9. The Mortgage and Security Agreement, which reflects upon the history of the ownership of the Idlease Guest Resort, is relevant to the issues raised herein and is not unfairly prejudicial, as that term is used in the procedural rules. In any event, Disputant Blake specifically identified the Mortgage and Security Agreement as being part of the record and argued its legal significance in his submittal.

4/ The documents Edwin Blake executed during this period of time include the following: (1) January 11 -- an "Application For Registration Of Marks" with the state of Maine seeking to register the name "Idlease", which was granted on January 13; (2) January 12 -- a Maine "Certificate Of Sole Proprietor Adopting Name Other Than His Own" with the county of Hartford, Connecticut, certifying that Disputant Blake intended to engage in business under the names "the Idlease(TM)" and "the Idlease Guest Resort (TM)"; (3) January 25 -- an " Application For Registration of Marks" with the state of Maine, applying for the registration of the name "Idlease Guest Resort" which was granted on January 27, 1993; (4) February 3 -- an "Application For A Certificate Of Registration Of Trade Or Service Marks" with the state of Connecticut, registering and recording the mark "Idlease" which was granted on February 5, 1993; and (5) February 6 -- a Maine "Certificate Of Sole Proprietor Adopting Name Other Than His Own" filed in Farmington, Connecticut, registering the names "Getaway For Two In The Kennebunks of Maine (TM)" and "Getaway For Two In Kennebunkport, Maine (TM)".

5/ Disputant Blake filed motions to compel interrogatories on September 27, 1993, and October 12, 1993, apparently seeking authority to file interrogatories directed toward Disputant Ducharme and certain Postal Service officials. These motions are denied on the ground that the rules of practice governing mail disputes do not provide for the filing of interrogatories. See, 39 C.F.R. Part 965. Furthermore, the rules provide that the undersigned, as presiding officer, has the authority, inter alia, to "[t]ake such action as may be necessary to preside properly over the proceeding and render decision therein" 39 C.F.R. § 965.4. Under this authority, I find that the taking of interrogatories by either party to this dispute would unnecessarily prolong this proceeding and would not aid in the resolution of the issues properly before me in this matter. The evidence already in this record is sufficient to enable me to render a decision on the relevant issues raised herein.

6/ Disputant Blake contends in his submittal that he has been engaged in the same reservations service business that he is currently conducting since 1989. Similarly, in a letter dated February 8, 1992, to attorney Eric J. Uhl, Disputant Blake stated: "I intend to continue to operate the business [and] since I have lost the use of the property on 241 Wells Rd.--on 9 January, 1992 I re-registered the business as a sole proprietorship lodging referral and consulting service ... making personal service agreements with other hotels to accommodate the Kennebunk area visitors who are continuing to contact me."

There is no evidence in the record to show that Blake conducted a general reservation service prior to his loss of the Idlease Resort property. As far as the record shows, Edwin Blake was exclusively engaged in managing the Idlease Guest Resort prior to the property's sale to the Ducharmes. Contrary to Disputant Blake's contention, I find that his current business of conducting a reservation and related services business for the Kennebunks is a different business enterprise from managing the Idlease Guest Resort, even though managing the resort undoubtedly included handling room reservation requests from potential guests of the resort.

Disputant Blake's contention (submittal, p. 5) that his Exhibit marked (AJ) shows a listing for "the Idlease reservations service, Idlease Marketing Service" for 1989, under telephone number 985-4460, is without merit. The only listing under Idlease on the undated telephone book page that comprises Exhibit (AJ) is the Idlease Guest Resort, Rt 9, Kennebunk, phone 985-4460. Furthermore, the earliest business registration form filed by Blake seeking to register or protect the name Idlease or some form thereof, as a hotel reservation service, was filed in January 1992.

7/ Disputant Blake's Motion To Exclude Exhibit filed on October 7, 1993, seeking to exclude attorney Perkins' letter from the record, is denied. Although I have chosen not to rely on Mr. Perkins' opinion as controlling with respect to the question of the ownership of the name Idlease, it is certainly relevant to the issues in this matter and it is not unfairly prejudicial to Disputant Blake.

8/ Disputant Blake's assertion in his submittal (p. 5) that this mail dispute proceeding encompasses an adjudication of his claims of civil liability against the Postal Service for alleged injuries to himself and damage to his business is, therefore, erroneous. The undersigned has no jurisdiction over such claims.

9/ In light of my decision in favor of Disputant Haag-Ducharme, I am necessarily denying Disputant Blake's Motion For A Summary Judgment on the merits, filed on September 21, 1993, and resubmitted on September 27, 1993.

10/ Accordingly, I deny Disputant Blake's Motion For A Summary Decision filed on October 12, 1993, in which he argues that this mail dispute proceeding unconstitutionally deprives him of his property right in mail addressed to him, as unmeritorious.

11/ The remaining motion filed by Disputant Blake -- a Motion To Exclude Exhibit -- filed on October 7, 1993, seeking to exclude a letter from Postal Service Attorney Mark Corbly, dated August 11, 1992, addressed to Rick Zaccaro, Associate Office Coordinator, U.S. Postal Service, which was attached as Exhibit 1 to Disputant Ducharme's submittal, is denied. While I have not relied on Mr. Corbly's statement of facts or legal analysis in reaching a decision in this case, his letter is clearly relevant to the issues raised herein, and it is not unfairly prejudicial to Disputant Blake's position in this matter.