In the Matter of a Mail Dispute ) November 30, 1993 Between: ) ) NATIONAL LIFE CENTER, INC. ) PRES. MS. DENISE COCCIOLONE ) ) and ) ) BIRTHRIGHT ) DIR. TERRY WEAVER ) P. S. Docket No. MD-201 APPEARANCE FOR DISPUTANT Robert J. Brooks, Esq. NATIONAL LIFE CENTER, INC. Federal Bar Building PRES. DENISE COCCIOLONE: 1815 H Street, NW., Suite 900 Washington, DC 20006-3604 APPEARANCE FOR DISPUTANT John C. Williams, Esq. BIRTHRIGHT, P. O. Box 29724 DIR. TERRY WEAVER: Atlanta, GA 30359-0724
This mail dispute has been docketed pursuant to Domestic Mail Manual Transition Book (DMM) § 153.721(c), which requires the Chief Field Counsel to forward certain unresolved mail disputes to the Judicial Officer for resolution. The mail in dispute, which is addressed to Birthright, Inc., and Birthright of Woodbury, Inc., or contains the name Birthright, 686 N. Broad Street, Woodbury, NJ 08096-1607, is presently being held by the Postmaster, Woodbury, New Jersey. Both Disputants have submitted the sworn statements required by 39 C.F.R. § 965.5. Disputant National Life Center, Inc., has also submitted written comments on the other party's statement, as permitted by 39 C.F.R. § 965.6. The following findings of fact and conclusions of law are based upon all such submissions.
1. Disputant Demise Cocciolone is the president of National Life Center Inc., formerly Birthright, Inc., a New Jersey non-profit corporation located at 686 N. Broad Street, Woodbury, New Jersey 08096. Ms. Cocciolone also controlled and directed Birthright of Woodbury, Inc., also a New Jersey non-profit corporation located at the same address. Birthright of Woodbury, Inc., is presently non-operative. Both entities have operated from the 686 N. Broad Street address for the last 12 years.
2. Prior to January 15, 1992, Birthright, Inc., and Birthright of Woodbury, Inc., were affiliated with Birthright, a Canadian non-profit corporation. Birthright, Inc., was the United States national office for Birthright, and Ms. Cocciolone was Birthright's United States national director. Birthright of Woodbury, Inc., was a chartered member of Birthright with the right to use the Birthright name.
3. The Birthright movement with Birthright (the Canadian Corporation) as the controlling entity is comprised of non-profit, charitable, interdenominational, and non-political organizations that provide emergency services to counsel women with crisis pregnancies in accordance with the Birthright charter and Birthright Board policy directives.
4. Birthright, Inc., raised funds for a national crisis hotline (800 number) by means of a national direct mailing campaign mailed on letterhead using the Birthright name and logo.
5. In September 1991, as the result of differences over the implementation of Birthright fund-raising policies, Birthright dismissed Ms. Cocciolone as its United States national director. Disputant Terry Weaver was appointed national director and the national office of Birthright was moved to Atlanta, Georgia. Thereafter on January 15, 1992, the Birthright Board terminated the authorization for Birthright, Inc., to use the "Birthright" name and logo. The charter of Birthright of Woodbury, Inc., was revoked at that time.
6. After the termination of its authorization to use the "Birthright" name and logo Birthright, Inc., continued to use the "Birthright" name and logo in soliciting funds for the national crisis hotline and continued to collect donations sent to it as the result of solicitations utilizing such name and logo.
7. Birthright thereafter brought suit against Birthright, Inc. and Birthright of Woodbury, Inc., in the United States District Court for the District of New Jersey. On June 30, 1993,1/ the Court entered judgment in favor of Plaintiff Birthright holding that (1) the Defendants had violated sections 32, 43(a)(1)(A) and 43(a)(1)(B) of the Lanham Act, 15 U.S.C. § § 1051 et seq. and (2) the Defendants had engaged in conduct constituting unfair competition in violation of New Jersey common law. The court enjoined Defendants from using the "Birthright" name and logo and required Defendant Birthright, Inc., to account for and pay Plaintiff Birthright all monies received by Birthright, Inc., after January 15, 1992, in response to all fund-raising letters sent out under the "Birthright" name and/or logo. The Court did not address entitlement to mail bearing the name "Birthright" addressed to 686 N. Broad Street, Woodbury, New Jersey.
8. On July 12, 1993, Disputant Cocciolone filed an amendment of the certificate of incorporation of Birthright, Inc., changing the corporation's name to National Life Center, Inc. Subsequent to that date National Life Center, Inc., notified all those on the Birthright, Inc., mailing list (approximately 37,000) of the change in name.
9. During the 12 years that Birthright, Inc., operated from the 686 N. Broad Street, Woodbury, New Jersey address, no mail received at that address contained donations to or funds intended specifically for Birthright (the Canadian corporation) or any Atlanta, Georgia, Birthright affiliate. If a local Birthright Chapter was designated by the donor the check was sent by Birthright, Inc., to the designated chapter. All other funds received were used to support the national hotline, which the National Life Center continues to operate.
10. Birthright, the Canadian corporation, has never operated a business, or performed any of its corporate functions at 686 N. Broad St., Woodbury, New Jersey.
11. On August 23, 1993, Disputant Terry Weaver filed a PS Form 3575 "Change of Address Order" with the Postmaster, Woodbury, New Jersey, requesting that all mail addressed to Birthright, 686 N. Broad Street, Woodbury, New Jersey, be forwarded to P. O. Box 98363, Atlanta, Georgia 30359-2063. Disputant National Life Center, Inc., opposes the request, contending that all mail addressed to 686 N. Broad St., Woodbury, New Jersey should be delivered as addressed. The Woodbury Postmaster is currently holding all mail which contains any form of the name Birthright addressed to 686 N. Broad Street.
1. The final United States District Court Order did not address the issue of right to receive mail at the 686 N. Broad Street address. It enjoined Birthright, Inc., and Birthright of Woodbury, Inc., from using the "Birthright" name and logo as service marks, and required Birthright, Inc., to pay Birthright all monies received after January 15, 1992, in response to fund-raising letters sent out under the "Birthright" name and/or logo. The judgment has not been modified.
2. In changing its name to National Life Center, Inc., and advising all those on its mailing list of the name change it appears that Birthright, Inc., has taken reasonable measures to assure that all mail addressed to 686 N. Broad St., Woodbury, New Jersey is intended for National Life Center, Inc., and not for Birthright or any Birthright affiliate.
3. All mail addressed to 686 N. Broad Street, Woodbury, New Jersey, should be delivered as addressed, since the most probable intended recipient is at that location. The factors taken into consideration in this conclusion include the name change and notice referred to above; the fact that Birthright, Inc., and Birthright of Woodbury, Inc., have operated at 686 N. Broad Street for the last 12 years; the fact that no mail received at that address has contained donations for or funds specifically intended for Birthright (the Canadian corporation) or any Atlanta, Georgia, Birthright affiliate; and the fact that Birthright (the Canadian corporation) has never operated a business, or performed any of its corporate functions at the 686 N. Broad Street address.
4. Resolution of this dispute determines only the right to delivery of the mail. If Ms. Cocciolone on behalf of National Life Center, Inc., receives any mail intended for Birthright, any Birthright affiliate, or Birthright's national director Terry Weaver, Ms. Cocciolone is responsible for the forwarding of such mail.
5. This decision in no way should be interpreted as modifying the obligations and duties of Birthright, Inc., as set forth in the judgment of the United States District Court, as well as the prohibitions contained therein.
6. The attached mail delivery Order should be issued.
James D. Finn, Jr. Administrative Judge