In the Matter of a Mail Dispute ) July 11, 1997 Between ) ) WORLDWIDE PRODUCTS AND SERVICES, ) INC. ) ) and ) ) JOSEPH BURKE ) P.S. Docket No. MD 97-158 APPEARANCE FOR WORLDWIDE Shari L. Soloway, Esq. PRODUCTS and SERVICES, INC.: Platzer, Fineburg & Swergold 150 East 52nd Street New York, NY 10022-6017 APPEARANCE FOR JOSEPH BURKE: Mitchell Cantor, Esq. 36 West 44th Street, Suite 111 New York, NY 10036-8102
This mail dispute has been docketed pursuant to Postal Operations Manual, Issue 7, August 1, 1996 ("POM"), Section 616.21, which requires the chief field counsel to forward certain unresolved mail disputes to the Judicial Officer for resolution. The mail in dispute is that addressed to Burke & Burke or Joseph Burke, 485 Madison Avenue, New York, NY 10022-5803. The mail is currently being held by the New York Postmaster.
Both parties submitted sworn statements and supporting documents.
1. For some time before March of 1996, Joseph Burke, through a corporation, operated a delicatessen at 485 Madison Avenue under the name Burke & Burke, and he continues to operate delicatessens under that name at other locations in New York City.
2. "Burke & Burke" is a trade name registered with the United States Patent and Trademark Office by Burke & Burke USA, Ltd., a Delaware corporation.
3. The corporation that operated the Burke & Burke delicatessen at 485 Madison Avenue became the subject of a Chapter 7 bankruptcy proceeding, and in a sale approved by the Bankruptcy Court, the bankruptcy trustee sold the business to Worldwide Products and Services, Inc. ("Worldwide"), in March of 1996. Worldwide acquired all the assets of the business, including the lease of the premises, equipment, inventory and supplies, permits, accounts, goodwill and signs. Although the bankruptcy trustee disclaimed any warranty regarding the trade name, he also conveyed all of the bankrupt's interest in connection with use of the name "Burke & Burke" to Worldwide.
4. Since March 1996, Worldwide has operated a delicatessen at 485 Madison Avenue under the name Burke & Burke. During that period, Joseph Burke has had no connection with the business at that address.
5. Worldwide does not claim mail addressed to Joseph Burke at 485
Madison Avenue.
Worldwide, as the owner and operator of the business at 485 Madison Avenue, is entitled to control delivery of its mail. It is undisputed that Worldwide has operated at 485 Madison Avenue under the name Burke & Burke since March 1996, and it is likely that persons sending mail addressed to Burke & Burke at that address intend that it be received by Worldwide and not by Joseph Burke, who has had no connection with any business at that address for at least sixteen months.
Mr. Burke contends that Worldwide has no legal right to use the name "Burke & Burke", but that is not an issue that needs to be resolved in this proceeding. In ascertaining the likely wishes of those sending mail to Burke & Burke at 485 Madison Avenue, substantial weight is given to Worldwide's business use of the name for sixteen months, and whether such use was authorized does not affect our conclusion that senders of mail so addressed likely intended that it be delivered to the business being operated by Worldwide under the name Burke & Burke.(1)
Worldwide has conceded that any mail addressed to Joseph Burke at 485 Madison Avenue may be delivered to him.
This decision addresses only delivery of mail addressed to Burke & Burke or Joseph Burke at 485 Madison Avenue. Mail addressed otherwise to that address is not affected by this decision and should be delivered as addressed. Also, this decision does not determine ownership of the contents of any mail. If Worldwide receives mail that is obviously intended for Joseph Burke, it is to forward it to him promptly.
The attached order should be issued.
Norman D. Menegat Administrative Judge
1. Additionally, Mr. Burke has not shown that he is authorized to assert any rights of Burke & Burke USA, Ltd., the company that registered the Burke & Burke name.