text:
The Complainant is Dubizzle Limited BVI of Road Town, Tortola, British Virgin Islands, Overseas Territory of the United Kingdom and Northern Ireland, represented by CSC Digital Brand Services AB, Sweden.
The Respondent is Rana Anabtawi of Fujairah, United Arab Emirates.
The disputed Domain Name <dubyzzle.com> is registered with GoDaddy.com, LLC (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 27, 2016. On April 28, 2016, the Center transmitted, by email, to the Registrar a request for registrar verification in connection with the disputed Domain Name. On April 28, 2016, the Registrar transmitted, by email, to the Center its verification response confirming that the Respondent is listed as the registrant and also providing the contact details.
In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and that the proceedings commenced on May 4, 2016. In accordance with the Rules, paragraph 5, the due date for Response was set to May 24, 2016. Upon the Respondent’s request dated May 24, 2016, the due date for Response was automatically extended until May 28, 2016. A Response was not filed with the Center.
The Center appointed Peter L. Michaelson as the sole panelist in this matter on June 3, 2016. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. Due to exceptional circumstances, the due date for the Panel’s decision to be submitted to the Center was extended from June 17, 2016 to June 24, 2016.
As reflected in the registration record for the disputed domain name in the WhoIs database (a copy of the record appears in Annex 2 to the Complaint), the disputed domain name <dubyzzle.com> was registered on December 31, 2014 and is due to expire on December 31, 2016.
This mark is registered for use in connection with: “Computer rental; installation and maintenance of computer software; computer programming and computer design services; all services in this class relating to computers, computing apparatus and equipment, computer programming and computer design; design, drawing and commissioned writing services for the compilation of web pages on the Internet; creating and maintaining websites; hosting the websites of others; all services in this class relating to or concerned with the Internet or provided online from the Internet; information services included in this class”, all in international class 42.
This mark is registered for use in connection with: “Voice, data, sound and image communication services; multimedia communication services; telecommunications services; radio, television, satellite and cable broadcasting services; news agency services; transmission, provision and display of information for business or domestic purposes from a computer stored databank; broadcast of live performances and events; hiring, rental and leasing of communication apparatus and instruments; subscription television and Internet broadcasting services; provision of websites; providing access to and leasing access time to computer data bases; all services in this class relating to or concerned with the Internet or provided online from the Internet; provision and dissemination of information relating to all the aforesaid services”, all in international class 38.
This mark is registered for use in connection with: “Offering for sale and the sale of goods in the retail and wholesale trade; advertising, promotion and agency services; rental of advertising space; business management services; accountancy services, advisory, consultancy and information services all relating to business and business management; market research services; billing services; publicity and marketing services; subscription and subscriber advisory, information, consultancy and management services; arranging and conducting of trade shows and exhibitions; dissemination of advertising and promotional matter; all services in this class relating to or concerned with the Internet or provided online from the Internet; provision and dissemination of information relating to all the aforesaid services”, all in international class 35.
The Complainant, founded in 2005 by J.C. Butler and Sims Whatley, is an online classified and community portal serving the Middle East and North Africa (MENA) region.
The Complainant’s website, “www.dubizzle.com” which itself was launched in 2005, facilitates trade by providing an online marketplace where sellers can list items for sale and buyers can search listings and connect with sellers. Specifically, the website provides classified ads through which users can buy and sell goods, including vehicles, real estate, tickets, and electronics; and solicit and offer services, such as babysitting, event services, and repairs. The website also allows users to design ads to post on the website and to display ads on profiles across social networking sites, such as Facebook; and search for jobs across numerous locations and industries. A copy of the home page and several lower-level pages from the Complainant’s site is provided in Annex 10 to the Complaint, with further business information regarding the Complainant provided in Annex 12 to the Complaint.
The Complainant, with a current presence in 11 countries and over 21 cities, has over 8 million visitors to its website who collectively view more than 290 million pages every month. As indicated in the web traffic analysis reports from Alexa and Compete provided in Annex 9 to the Complaint, the Complainant’s website is followed by employees in the UAE of whom 40% are Western expatriates and 20% are from the MENA region.
The Complainant and its subsidiary company, Dubizzle Middle East FZ-LLC, have registered various domain names that incorporate the Complainant’s DUBIZZLE Mark including <dubizzle.com>. A list of these names is provided in Annex 8 to the Complaint.
The disputed domain name resolves to the Respondent’s website, presently under construction, that displays, on its home page, a sentence stating: “Dubyzzle.com, the best FREE place to Buy a house, Sell a car, or Find a job in Middle East.” directly below which a banner appears stating: “Coming Soon!” The Respondent’s website uses similar red and white coloration and type fonts as on the Complainant’s website. A screenshot of the current home page of the Respondent’s website is provided in Annex 12 to the Complaint.
On April 13, 2016, the Complainant sent a cease and desist letter to the Respondent’s email address specified in the WhoIs record for the disputed domain name (a copy of the letter message appears in Annex 15 to the Complaint). Subsequently, on April 19, 2016, the Respondent replied, by email, stating that it would transfer the name only if it were reimbursed for: (a) its capital costs (capex) specifically “Registration of Premium Domain Cost”, and “Incurred Design and Development Cost”, (b) “CAPEX Indexation benefit” for two years; and (c) domain transfer fees. Subsequently, on the same day, the Complainant responded, by email stating that it would only reimburse the Respondent for its “reasonable registration costs for transfer of the name”. No further message was forthcoming from the Respondent. See Annex 16 for copies of the April 19th correspondence between the parties.
The Complainant contends that the disputed domain name is confusingly similar to its DUBIZZLE Marks.
Specifically, the disputed domain name contains an intentional misspelling of the Complainant’s mark DUBIZZLE as “dubyzzle”. This misspelling is incapable of adding sufficient distinctiveness whatsoever to the disputed domain name to mitigate any resulting user confusion between that name and the Complainant’s Marks.
Specifically, the Respondent is not affiliated or connected with the Complainant and has never been licensed or authorized to use any of the Complainant’s Marks.
Further, there is no evidence indicating that the Respondent is commonly known by the mark DUBIZZLE nor could there ever be any by virtue of the exclusive trademark rights residing in the Complainant – rights that existed before the Respondent registered the disputed domain name. In that regard, the WhoIs record for the disputed domain name suggests that the Respondent is known as an entity having a name, Rana Anabtawi, which is markedly different than and does not resemble that mark in any way. Moreover, the Complainant has never authorized the Respondent to register a domain name containing that mark, or any variation thereof.
In addition, the Respondent is using the disputed domain name to construct a classified advertisement website by copying the Complainant’s trade dress, which features a red and white color scheme widely associated with Complainant (as shown in the webpages provided in Annex 10 to the Complaint), as well as displaying a modified copy of the Complainant’s registered DUBIZZLE type font, with the intent to deceive Internet users into believing that the Respondent’s website is somehow associated with Complainant – when, in fact, it is not. Such a use, through which the Respondent is passing off its website as related in some fashion to the Complainant, is in itself evidence of the Respondent’s lack of rights and legitimate interests in the disputed domain name.
The Complainant also contends that the Respondent has registered and is using the disputed domain name in bad faith in violation of paragraph 4(a)(iii) of the Policy.
There can be no doubt that the Respondent was well aware of the reputation and goodwill inherent in the Complainant’s mark DUBIZZLE when the Respondent intentionally registered the disputed domain name – a name which is confusingly similar to that mark.
Yet, in spite of that knowledge, the Respondent is deliberately creating a likelihood of confusion, in the minds of Internet users, with the Complainant and its marks by using the disputed domain name as an address of its site which, once completed and operational, will offer very similar, if not identical services, as does the Complainant’s site. Moreover, the Respondent is intentionally employing a similar red and white color scheme and similar type fonts on its website as appears on the Complainant’s site, thus exacerbating the likelihood of confusion. Through the Respondent’s conduct, those users will likely be confused into believing that the Respondent’s website somehow emanates from, is sponsored or endorsed by, or is affiliated with the Complainant – when, in fact, it is not. Consequently, the Respondent’s use of the disputed domain name will improperly divert web traffic and its accompanying commercial business away from the Complainant’s site and instead to the Respondent’s site to the Complainant’s ultimate detriment and the Respondent’s eventual profit. Doing so constitutes bad faith registration and use under paragraph 4(b)(iv) of the Policy.
Beyond requesting an extension for Response, the Respondent has not taken part in these proceedings. In view of the lack of a Response filed by the Respondent as required under paragraph 5 of the Rules, this proceeding has proceeded by way of default. Hence, under paragraphs 5(f), 14(a) and 15(a) of the Rules, the Panel is directed to decide this administrative proceeding on the basis of the Complainant’s undisputed factual representations.
The Panel finds that the disputed domain name is confusingly similar to the Complainant’s Marks.
From a simple comparison of the disputed domain name to the Complainant’s mark DUBIZZLE, no doubt exists that the disputed domain name is confusingly similar to it. The disputed domain name consists of a misspelled variant of the mark to which the generic Top-Level Domain (“gTLD”) “.com” has been appended, with the addition of the gTLD being irrelevant in this case in assessing confusing similarity or identity under paragraph 4(a)(i) of the Policy and thus ignored.
It is now very well-established in UDRP precedent, including numerous decisions previously rendered by this Panel, that a minor variation to a mark is usually insufficient in and of itself, when used in forming a domain name that results from modifying the mark, to confer requisite and sufficient distinctiveness to that name to avoid user confusion. Here, the Respondent’s misspelling of the Complainant’s mark DUBIZZLE as “dubyzzle” (substituting a “y” for the “i”) clearly resulted in such a minor variation. See, e.g., Chicago Mercantile Exchange Inc. and CME Group Inc. v. Domains By Proxy, LLC / Phupinder Gill, WIPO Case No. D2015-1842; Cummins Inc. v. Jamie Lent, WIPO Case No. D2015-0188; Staatliche Porzellan-Manufaktur Meissen GmbH v. Buy Meissen, WIPO Case No. D2013-1687; Forideas Pty Limited v. Movember Organization, WIPO Case No. D2013-1385; AlgaeCal Inc. v. AlgaeCal Fraud, WIPO Case No. D2013-1248; General Motors LLC v. Carol Schadt, WIPO Case No. D2012-2106; National Westminster Bank plc v. Steve Mart, WIPO Case No. D2012-1711; Tommy Bahama Group, Inc. v. Berno Group International, WIPO Case No. D2012-0531; National Association of Realtors v. Hammerberg & Associates, Inc., WIPO Case No. D2012-0075; Space Needle LLC v. Erik Olson, WIPO Case No. D2011-0931; Oakley, Inc. v. Kate Elsberry, Elsberry Castro, WIPO Case No. D2009-1286; Clearwire Legacy, LLC v. Leon Ganesh, WIPO Case No. D2010-0148; Burberry Limited v. Domain Admin , WIPO Case No. D2009-0703; Krispy Kreme Doughnuts, Inc. v. John Sharp, WIPO Case No. D2009-0099; MasterCard International Incorporated v. Global Prepaid, WIPO Case No. D2008-2008; HRB Innovations Inc., Express Tax Service Inc. v. Calvin Brown, WIPO Case No. D2008-1072; Dreamworks Animation, LLC v. Creahq, Mike Furlong, WIPO Case No. D2008-0505; Marvel Manufacturing Company Inc. v. Koba Internet Sales, LP, WIPO Case No. D2008-0265; MySpace, Inc. v. Edwin De Jesus, EDJ Associates Inc., WIPO Case No. D2007-1878; BlackRock, Inc. v. blackrockfinancialservices.com, WIPO Case No. D2007-1627; F. Hoffmann-La Roche AG v. Transliner Consultants, WIPO Case No. D2007-1359; National Football League v. Peter Blucher d/b/a BluTech Tickets, WIPO Case No. D2007-1064; Toilets.com, Inc. v. Rons Porta Johns, WIPO Case No. D2007-0952; Associated Bank Corp. v. Texas International Property Associates, WIPO Case No. D2007-0334; Gerber Childrenswear Inc. v. David Webb, WIPO Case No. D2007-0317; The Cheesecake Factory Inc. and The Cheesecake Factory Assets Co., LLC v. Say Cheesecake, WIPO Case No. D2005-0766; Napster, Inc. v. Giovanni Vinscani, WIPO Case No. D2005-0531; Caesars Entertainment, Inc. v. Nova Internet Inc., WIPO Case No. D2005-0411; Lockheed Martin Corporation v. The Skunkworx Custom Cycle, WIPO Case No. D2004-0824; Lockheed Martin Corporation v. Deborah Teramani, WIPO Case No. D2004-0836; National Collegiate Athletic Association v. Dusty Brown, WIPO Case No. D2004-0491; and National Association of Professional Baseball Leagues, Inc., d/b/a Minor League Baseball v. John Zuccarini, WIPO Case No. D2002-1011.
Therefore, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s Marks. Hence, the Complainant has satisfied its burden under paragraph 4(a)(i) of the Policy.
The Complainant has never authorized the Respondent to utilize the Complainant’s mark DUBIZZLE nor does the Complainant have any relationship, affiliation or connection whatsoever with the Respondent.
Further, the Respondent is not actively using the disputed domain name to resolve to an operational website, as the site is presently under construction. Moreover, the record before this Panel does not reflect that the Respondent is making any demonstrable preparations to use the disputed domain name, prior to receiving notice of the dispute, in conjunction with a bona fide offering of goods or services.
There can simply be no question that the Respondent was well aware of the Complainant, its DUBIZZLE Marks and the Complainant’s exclusive rights in those Marks, and the reputation of and the goodwill inherent in those Marks when the Respondent registered the disputed domain name. Yet, in spite of that knowledge, the Respondent intentionally registered the disputed domain name and will, based on the text on the “coming soon” page, be using it as an address of his website which will offer what will likely be the same or highly similar services as does the Complainant. The only plausible reason for doing so which the Panel can conclude, based on the present record before it, is that the Respondent will deliberately cause confusion with the Complainant’s mark DUBIZZLE and, in so doing, attempt to deceive Internet users into believing they will be transacting with the Complainant or an entity which is somehow affiliated, related or connected with the Complainant – when, in fact, they are not – and thus divert business away from the Complainant to its likely detriment. This conduct does not, in any manner, constitute a bona fide offering of goods or services. Accordingly, the Respondent’s use of the disputed domain name does not quality under paragraph 4(c)(i) of the Policy.
The record before the Panel is simply devoid of any evidence which proves that the Respondent actually acquired any recognition in the marketplace to become commonly known by the disputed domain name or a name similar to it. Given the exclusive trademark rights that reside in the Complainant and the substantial reputation now inherent in its DUBIZZLE Marks both through registration and prior use, the Respondent could not legitimately acquire any public association between itself and the Complainant’s Marks or even any mark similar thereto, at least for the goods and services provided by the Complainant under its marks. This is so in light of the Complainant’s exclusive trademark rights which predate the date, December 31, 2014, when the Respondent registered the disputed domain name. See, e.g., Philip Morris USA Inc. v. Daniele Kanai, iKiss LLC, WIPO Case No. D2015-1527; Valero Energy Corporation and Valero Marketing and Supply Company v. Lisa Katz, Domain Protection LLC / Domain Hostmaster, Customer ID: 62520014085963, WIPO Case No. D2015-0787; Chicago Mercantile Exchange Inc. and CME Group Inc. v. Domains By Proxy, LLC / Phupinder Gill, supra; Cummins Inc. v. Jamie Lent, supra;Staatliche Porzellan-Manufaktur Meissen GmbH v. Buy Meissen, supra; Forideas Pty Limited v. Movember Organization, supra; National Westminster Bank plc v. Steve Mart, supra; Tommy Bahama Group, Inc. v. Berno Group International, supra;Space Needle LLC v. Erik Olson, supra;Oakley, Inc. v. Kate Elsberry, Elsberry Castro, supra; Burberry Limited v. Domain Admin, supra; HRB Innovations Inc., Express Tax Service Inc. v. Calvin Brown, supra; MySpace, Inc. v. Edwin De Jesus, EDJ Associates Inc., supra; andGeneral Motors LLC v. Carol Schadt, supra. As such, the Respondent could not likely become commonly known by the disputed domain name or any of the Complainant’s Marks for any of the goods and services which are either identical or sufficiently similar to those listed on the Complainant’s trademark registrations or with which the Complainant uses its marks without infringing on the exclusive trademark rights of the Complainant. Hence, the Respondent does not fall within paragraph 4(c)(ii) of the Policy.
Lastly, as the Respondent’s illicit use of the disputed domain name clearly does not constitute either a noncommercial or fair use under paragraph 4(c)(iii) of the Policy.
It is indisputable that the Respondent was well aware of the Complainant, its reputation and its DUBIZZLE Marks and the exclusive rights which the Complainant then had in those Marks when the Respondent registered the disputed domain name. Yet, in spite of that knowledge and in the absence of any authority to do so from the Complainant, the Respondent intentionally chose and registered the disputed domain name, which is a misspelled variant of the mark DUBIZZLE, for its potential to cause confusion with those Marks.
To opportunistically exploit that confusion, the Respondent then uses the disputed domain name to address its website, though presently under construction, which will offer services that are highly similar, if not identical, to those currently offered on the Complainant’s site. To purposely heighten the amount of confusion and increase its illicit exploitation, it appears to the Panel that the Respondent will utilize a rather similar color and type scheme on its website as the Complainant does on its existing website. Consequently, the Panel finds, beyond any reasonable doubt, that the Respondent, through its conduct here, would be deliberately deceiving Internet users into believing they were transacting with the Complainant or a website that would, in some fashion, be affiliated with, or sponsored or endorsed by the Complainant when, in actuality, they were not, to the Complainant’s commercial detriment and the Respondent’s own pecuniary gain. This conduct is a clear violation of paragraph 4(b)(iv) of the Policy. .
Accordingly, under paragraphs 4(i) of the Policy and 15 of the Rules, the Panel grants the relief sought by the Complainant. The disputed domain name <dubyzzle.com> is to be transferred to the Complainant.

matches: v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v.


text:
In People v. Johnson, a Deputy Sheriff armed with a 911 call describing “a sick or intoxicated motorist” stopped the Appellant for a “wide right hand turn” well outside of his jurisdictional limit. At a Mapp hearing (Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684 ) to determine whether there existed sufficient probable cause for the stop of the vehicle, the Deputy admitted that he did not know the identity of the caller or the basis upon which the allegation was made. Since the Deputy was without jurisdiction to affect a stop for a traffic violation, the 911 call was essential. The Town Court denied the motion to suppress and the defendant was ultimately convicted. Following a loss in the County Court the motorist filed an application for Leave to Appeal to the Court of Appeals. While the application was pending, the United States Supreme Court decided Navarette v. California, – US – , 134 S.Ct. 1683, 188 L.Ed.2d 680  which, in a decision by Justice Thomas, found anonymous hearsay to be sufficient for the stop of a motor vehicle.
On October 21st, New York’s highest Court, the Court of Appeals, heard arguments in People v. Johnson, People v. Argyris and People v. DiSalvo. Common to all three cases is the standard under which anonymous hearsay may be utilized to stop a motor vehicle.
In determining whether probable cause exists, New York is one of the few remaining jurisdictions that continues to apply the Aguilar-Spinelli rule (see, Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 ; Spinelli v. U.S., 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 ). In short, this rule mandates that the proponent of the hearsay establish the reliability of the declarant as well as the declarant’s basis. This, of course, runs contrary to the so-called “Totality of the Circumstances” rule that the High Court implemented in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 . Gates permits the proponent of the hearsay to overcome a void or shortfall in either reliability or basis by an abundance of information in one category or the other.
In attempting to turn back the State’s contention that New York should abandon the Aguilar-Spinelli rule and engage in an across the board implementation of Illinois v. Gates, the Appellant turned to Justice Scalia’s scathing dissent in Navarette noting, for instance, that “everyone in the world who saw the car would have that knowledge, and anyone who wanted the car stopped would have to provide that information” (Navarette, at S.Ct. 1693).
On behalf of Appellant Johnson, I argued that the Aguilar-Spinelli provides a powerful “bright line”rule. The precepts embodied in Aguilar-Spinelli are firmly rooted in the practical assessment that must be conducted in any situation. Is the third party worthy of belief? Was the third party in a position to know what he or she claimed to know? In sum and substance, Aguilar-Spinelli informs police officers of what allegations they must include and provides an identical yardstick for magistrates in interpreting the same.
In what is perhaps our strongest argument, we argued that a dramatic shift in the standard is unwarranted under the facts of the case inasmuch as the Johnson stop fails under either standard. In sum and substance, proper application of the “Totality of the Circumstances” test requires that the anonymous tip contain a predictive element tending toward criminality (see, Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 ).
Ironically, the strangest twist in Johnson is that the tip was never anonymous! Five days after the Appellant’s arrest the Deputy secured a supporting deposition from the 911 caller whom the State did not call or identify at the Mapp hearing which was held some five months later!
A decision is expected in early December.

matches: v. v. v. v. v. v. v. v. v. v. v.


This matter is before the court on the motion of Calumet Farm, Inc. for partial summary judgment.
The following facts are not in dispute. See Stipulations of Fact filed January 24, 1994; Calumet's Proposed Findings of Fact and Conclusions of Law filed January 12, 1994; The First National Bank & Trust Company's Proposed Findings of Fact and Conclusions of Law filed January 11, 1994.
On September 30, 1986, Calumet Farm, Inc. by and through its president J. T. Lundy, executed a promissory note in favor of White Birch Farm, Inc. in the original principal amount of $6,500,000 for the purchase of a one-half interest in the thoroughbred stallion MOGAMBO. An interest payment in the amount of $98,150 on the debt evidenced by the note became due and owing on January 31, 1991.
Calumet Farm, Inc. maintained a demand deposit checking account at The First National Bank and Trust Company, Georgetown, Kentucky. On Friday, March 8, 1991, J. T. Lundy directed an employee of Calumet, Angela Hollearn, to pay by way of a wire transfer the interest payment due to White Birch Farm, Inc. It was the customary practice of Calumet to set off amounts owed to White Birch against sums White Birch owed to Calumet. As of March 8, White Birch owed a sum of money to Calumet for board bills and other expenses. After calculating the amount of the setoff Ms. Hollearn determined that Calumet owed to White Birch the sum of $77,301.58. Calumet intended to wire transfer the sum of $77,301.58 to White Birch Farm.
Ms. Hollearn then contacted by telephone an employee of The First National Bank & Trust Company, Lori Pettit, and instructed Ms. Pettit to wire funds, the amount of which is now in dispute, to the account of White Birch Farm, Inc. at Citibank in New York and to reference the wire transfer "MOGAMBO Interest Payment." On March 8, 1991, the sum of $770,301.58 was deducted from Calumet's account at First National and was transferred by wire transfer to White Birch. Calumet contends it authorized First National to transfer only $77,301.58.
From March 8, 1991 through March 29, 1991, First National honored all checks presented on Calumet's account despite the apparent lack of funds available in the account. At the start of business on March 29, 1991, Calumet's account at First National was overdrawn in the amount of $170,823.07.
(vii) any and all claims, causes of action, choses in action, judgments or rights to recover arising out of or relating in any way to that certain wire transfer of $770,301.58 from Account No. 15-041-868-01 in the name of Calumet Farm, Inc. at The First National Bank & Trust Company, Georgetown, Kentucky, to Account no. 37159402 in the name of White Birch Farm, Inc. at Citibank, N.A., New York, New York, whether such claims are against the said White Birch Farm, Inc., the Secured Party and/or any other person or entity.
On March 29, 1991, First National applied $201,000 of the $500,000 loan proceeds to satisfy Calumet's indebtedness to First National resulting from its overdrafts in the amount of $170,823.07 and to cover checks then outstanding. On April 3, 1991, after filing a UCC-1 in the office of the Fayette County Clerk, First National credited the remaining $299,000 of the loan proceeds to Calumet's account.
Calumet filed a petition for relief under chapter 11, title 11 United States Code on July 11, 1991.
Calumet filed this adversary proceeding against First National. In count I of its amended complaint filed July 9, 1993, Calumet alleges First National was negligent in making a wire transfer of an incorrect amount. Calumet seeks damages in the amount of $693,000, which represents the difference between the amount Calumet contends it authorized First National to transfer to White Birch, $77,301.58, and the amount First National transferred, $770,301.58. In count II of the amended complaint Calumet seeks a determination that Calumet's granting of a security interest in its interest in MOGAMBO and proceeds thereof and in the proceeds of any cause of action related to the wire transfer constitutes a preference which may be avoided pursuant to 11 U.S.C. § 544(b) and KRS 378.060 and KRS 378.070. Calumet requests in count III of the amended complaint a judgment declaring void any security interest claimed by First National in proceeds resulting from avoidance of any preferential transfer.
On April 11, 1994, Calumet filed the motion for summary judgment now before the court. Calumet seeks summary judgment on counts II and III of its amended complaint.
The granting of a security interest prior to the date on which a petition for relief is filed in "all claims, causes of action, choses in action, judgments or rights to recover arising out of or relating in any way to" the wire transfer does not vest in First National a security interest in recoveries had by the debtor in possession under 11 U.S.C. § 544(b) and KRS 378.060. KRS 378.060 sets forth a cause of action that is assertable by a creditor of the debtor. Title 11 U.S.C. § 544(b) grants to the trustee, and the debtor in possession by operation of 11 U.S.C. § 1107, the power to "avoid any transfer of an interest of the debtor in property or any obligation incurred by the debtor that is avoidable under applicable law by a creditor holding an unsecured claim . . . ." Prior to the intervention of bankruptcy the debtor lacks any interest in a cause of action to avoid a preferential transfer under state law that is subject to encumbrance by the debtor. The transfer is avoidable by the debtor only by reason of section 544(b) pursuant to which the debtor stands in the shoes of a creditor holding an unsecured claim. See In re MortgageAmerica Corp., 714 F.2d 1266 (5th Cir. 1983). The security interest of First National in "all claims, causes of action, choses in action, judgments or rights to recover arising out of or relating in any way to" the wire transfer is unenforceable against any judgment in favor of the debtor in possession against First National or White Birch Farm to the extent the judgment represents avoidance or recovery of a preferential transfer by the debtor in possession standing in the shoes of a creditor.
The granting of a security interest in favor of First National Bank on March 29, 1991 constituted a preferential transfer under KRS 378.060 at least to the extent of $170,823.07, the amount by which Calumet's account at First National was overdrawn.
Any sale, mortgage or assignment made by a debtor and any judgment suffered by a defendant, or any act or device done or resorted to by a debtor, in contemplation of insolvency and with the design to prefer one or more creditors to the exclusion, in whole or in part, of others, shall operate as an assignment and transfer of all the property of the debtor, and shall inure to the benefit of all his creditors, except as provided in subsection (2) of KRS 378.090, in proportion to the amount of their respective demands including those which are future and contingent. Nothing in KRS 378.060 to 378.090 shall vitiate or affect any mortgage made in good faith to secure any debt or liability created simultaneously with the mortgage, if the mortgage is lodged for record within thirty days after its execution.
First National concedes Calumet was insolvent at the time the security interest was granted. The transfers occurred within six months preceding bankruptcy. The only contested issues are whether Calumet granted to First National a security interest "with the design to prefer" First National and whether the "simultaneous debt" exception applies.
A transfer will be presumed to be made with the design to prefer if the transfer is made while the debtor is insolvent. In re Rexplore Drilling, Inc. (Perkins v. Petro Supply Co., Inc., 971 F.2d 1219 (6th Cir. 1992). "[A] transfer made by an insolvent will be presumed to be made with such intent if in fact it does constitute a preference and a man of ordinary prudence under like circumstances would know that the transaction would so operate." Greathouse v. Millard, 320 S.W.2d 630, 632 (Ky. 1958) (cited in Rexplore, 971 F.2d at 1223).
At the time the security interest was granted Calumet was indebted to First National Bank in the amount of $170,823.07, the amount by which Calumet's account at First National was overdrawn. At the time of the transfer Calumet maintained that its account was not overdrawn and that the bank committed the error which resulted in an unintended reduction in the balance of Calumet's account in the amount of $693,000. First National claims the question of fault must be determined before the question of whether Calumet owed a preexisting debt to First National can be determined. Regardless of who made the mistake, it is clear that First National treated the account as being in overdraft status. First National charged against Calumet's account the amount of $770,301.58 for the wire transfer. First National continued to honor checks presented on the account but considered the account as having a negative balance. At the start of business on March 29, 1991, Calumet "owed" to First National the sum of $170,823.07, which debt at the time was unsecured. Calumet then granted to First National a security interest to secure a $500,000 loan. First National immediately credited Calumet's account with the sum of $201,000, $170,823.07 of which satisfied the indebtedness owing to First National by reason of the overdraft. The granting of a security interest to secure repayment of a preexisting unsecured debt in the amount of $170,823.07 constituted a preferential transfer which is avoidable by the debtor in possession.
With respect to the question of whether the March 29, 1991 security interest constituted a preferential transfer to the extent of $30,176.93 ($201,000 - $170,823.07) or to the extent of $299,000 (the amount advanced by First National to Calumet on April 3, 1991), the court finds there are unresolved issues of fact which make summary judgment encompassing these amounts inappropriate.


text:
buddha 3 piece wall art 6 wall art ideas for office.
buddha 3 piece wall art budha wall art watercolor art 3 panel wall art canvas print om symbol watercolor buddha wall art next wall art ideas for kitchen.
buddha 3 piece wall art modern canvas wall art pictures frame home decor for living room 3 piece color abstraction buddha wall color ideas for office.
buddha 3 piece wall art pretentious design buddha canvas wall art also creative 3 piece painting oil panel interior wall ideas minecraft.
buddha 3 piece wall art buddha 3 piece canvas wall decor no bd3009 wall ideas for kitchen.
buddha 3 piece wall art wall artslarge buddha canvas wall art large modern 3 piece canvas wall art picture feature wall ideas for dining room.
buddha 3 piece wall art 3 piece wall decor best of relaxing buddha canvas 3 pcs wall art buddha canvas buddha wall mural ideas for dining room.
buddha 3 piece wall art home decor picture 3 piece canvas wall art modern grey buddha painting on canvas modular picture wall shelf ideas for office.
buddha 3 piece wall art frameless wall art classical grey color modern world map canvas painting contemporary artwork wall picture for living room 3 piece canvas wall art buddha wall color ideas for o.
buddha 3 piece wall art nature canvas art painting scenery pattern for living room wall with regard to paintings plan 9 wall hanging ideas for dining room.
buddha 3 piece wall art ganesha buddha peacock painting set of 3 piece wall art decor ganesha buddha peacock wall storage ideas for kitchen.
buddha 3 piece wall art amazing metal buddha wall art 38 with additional 3 pieces wall art sets with metal buddha wall art wall covering ideas for garage.
buddha 3 piece wall art buddha 3 piece canvas wall decor no bd3010 accent wall ideas living room.
buddha 3 piece wall art charming idea three piece wall art with octopus sea life 3 world market large canvas sets wall decorating ideas for bedrooms cheap.
buddha 3 piece wall art 3 piece canvas art posters prints buddha meditation canvas painting wall pictures for living room feature wall ideas for bedrooms.
buddha 3 piece wall art limited edition buddha flower 3 piece canvas painting wall shelf ideas for office.
buddha 3 piece wall art 3 piece canvas painting wall art picture modern buddha print painting on canvas living room home wall ideas for bedrooms.
buddha 3 piece wall art limited edition buddha transcension 3 piece canvas painting wall art ideas for dining room.
buddha 3 piece wall art 3 piece wall canvas painting framed high quality hand painted art religion buddha oil painting on wall decorating ideas for bedrooms cheap.
buddha 3 piece wall art ween buddha canvas pictures for living room modern 3 piece wall art buddhism posters and printed wall design ideas minecraft.
buddha 3 piece wall art wooden buddha face wall art panel cm xcm x dark wood feature wall ideas living room.
buddha 3 piece wall art 3 piece cuadros abstract printed buddhism lord buddha oil painting on canvas paintings art wall picture wall mural ideas for garage.
buddha 3 piece wall art buddha painting 3 pieces canvas wall art wall ideas for bedroom pinterest.
buddha 3 piece wall art hand made asian boudddha oil painting female goddess buddha canvas wall art religion decorative pictures from china t1p33 buddha painting boudddha goddess wall tile ideas for k.
buddha 3 piece wall art buy modern abstract oil painting in 3 pieces and get free shipping on aliexpresscom accent wall ideas for dining room.
buddha 3 piece wall art canvas paintings wall art home decor 3 pieces buddha wall storage ideas for garage.
buddha 3 piece wall art 3 piece wall canvas art modern buddha painting home decoration white marble buddha statues art canvas wall art ideas for bathroom.

matches:
art 6
art 3
art 3
art 38
art 3
art 3
art 3
art 3
art 3


Renee Harris Toliver (argued), Nancy E. Larson, Asst. U.S. Atty., Fort Worth, TX, for U.S.
George Andrew Platt (argued), Westfall, Platt & Cutrer, Fort Worth, TX, for Woods.
Gregory Wayne Woods pleaded guilty to a single count of bank fraud in violation of 18 U.S.C. § 1344. He appeals his 46-month sentence pursuant to United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). Because Woods preserved his claim of error and the Government cannot demonstrate the error was harmless, we VACATE Woods' sentence and REMAND to the district court for re-sentencing.
On May 7, 2004, Woods pleaded guilty to one count of bank fraud, prohibited by 18 U.S.C. § 1344. A pre-sentence report ("PSR") calculated Woods' total offense level at 19, including a seven-level increase because the amount of loss was between $120,000 and $200,000, a two-level increase because the offense involved more than minimal planning, and a four-level increase because of Woods' role as an organizer or leader who recruited and instructed participants in a criminal activity that involved five or more participants. A total offense level of 19 combined with a criminal history category III resulted in a recommended Sentencing Guideline range of 37 to 46 months of imprisonment. In addition, the PSR recommended an upward departure because Woods' criminal history score under-represented the seriousness of his criminal history or the likelihood that he would commit additional crimes.
Woods objected to the PSR on the basis of Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), arguing that the findings which resulted in enhancements totaling 13 levels were based on facts to which he had not admitted nor had been found by a jury. Nonetheless, the district court adopted the factual findings of the PSR and concluded that the 13 level enhancement was appropriate.1 The court did not adopt the PSR's recommendation to depart upwardly, however, but stated: "Well, it's a close call, but I'm not going to upwardly depart in this case. I am going to impose a sentence at the top of the guideline range." The district court sentenced Woods to 46 months in prison, the top of the applicable guideline range including the enhancements. The court also ordered Woods' sentence to run consecutively to any sentence imposed by the state court in an unrelated criminal proceeding then pending against Woods', ordered Woods to pay $129,324 in restitution, and ordered Woods to serve three years of supervised release.
Woods now appeals his sentence, arguing that the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), confirms that the sentence imposed upon him by the district court violated the 6th Amendment. The Government concedes, as it must, that the district court erred by enhancing Woods' offense level under the pre-Booker mandatory guidelines system based on facts to which Woods did not admit and not found beyond a reasonable doubt by a jury. The Government argues, however, that such an error was harmless, based principally on the district court's decision to impose a sentence at the top of the applicable guidelines range.
When a Sixth Amendment claim under Booker "is preserved in the district court by an objection, we will ordinarily vacate the sentence and remand, unless we can say the error is harmless under rule 52(a) of the Federal Rules of Criminal Procedure." United States v. Mares, 402 F.3d 511, 520 n. 9 (5th Cir.), cert. denied, ___ U.S. ___, 126 S. Ct. 43, 163 L. Ed. 2d 76 (2005); see also United States v. Olano, 507 U.S. 725, 734, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993) (noting that harmless error standard applies when defendant makes timely objection to error).
"Harmless error is ` [a]ny defect, irregularity, or variance that does not affect substantial rights' of the defendant, and `arises when the mistake fails to prejudice the defendant.'" United States v. Akpan, 407 F.3d 360, 376 (5th Cir. 2005) (quoting Fed. R. Crim. P. 52(a)). " [T]he government must bear the burden of demonstrating that the error was harmless by demonstrating beyond a reasonable doubt that the federal constitutional error of which the defendant complains did not contribute to the sentence that he received." Id. at 377 (citations omitted); see also Olano, 507 U.S. at 734, 113 S. Ct. 1770 (noting that the inquiry to determine prejudice is the same between plain error and harmless error, but that the defendant, rather than the government, bears the burden of persuasion with respect to prejudice under plain-error review); Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967) (holding that "before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt"). Put another way, an error is deemed harmless only if the government proves beyond a reasonable doubt that it did not affect the outcome of the district court proceedings. See United States v. Pineiro, 410 F.3d 282, 285 (5th Cir. 2005).
The imposition of a sentence at the maximum end of the Guidelines-determined range, however, is less persuasive when considered under the harmless-error standard. When a defendant fails to preserve Booker error with an objection in the district court, the sentence imposed is reviewed for plain error, and the burden is on the defendant to demonstrate "a probability sufficient to undermine confidence in the outcome." Id. at 203. When reviewing for harmless error, however, the Government bears the burden of proving beyond a reasonable doubt that the Booker error did not affect the outcome of the district court proceedings. See Pineiro, 410 F.3d at 285.
Although a judge sentencing a defendant at the top of the applicable range under the pre-Booker sentencing regime may be enough to prevent that defendant from undermining confidence in the outcome when reviewed for plain error, it does not follow that the same sentence is enough to satisfy the burden on the Government to prove beyond a reasonable doubt that the sentence would not have been different under the post-Booker advisory regime. Instead, the Government must shoulder the heavy burden of demonstrating that the district court would not have imposed a different sentence under the advisory regime—in essence, the Government must prove a negative. Such proof is certainly not impossible, but where the Government's principal evidence is a sentence at the top of the range determined by the Guidelines under a mandatory sentencing regime, the Government has not carried its burden.
Our conclusion that a sentence imposed at the top of the Guidelines-determined range might be sufficient to prevent a defendant from prevailing under plain-error review, but not sufficient to demonstrate that a Booker error was harmless beyond a reasonable doubt is consistent with the law of at least two other Circuits. In United States v. Cain, 433 F.3d 1345, 1347-49 (11th Cir. 2005), the Eleventh Circuit concluded that Booker error was not harmless even though the district court had imposed a sentence at the top of the applicable guidelines range.
First, the fact that a judge selects a sentence within a guideline range that the judge thought he was required to apply does not necessarily mean that the same sentence would have been imposed had the judge understood the Guidelines as a whole to be advisory. The applicable guideline range provides the frame of reference against which the judge chooses an appropriate sentence. In this case, for example, Judge Block might have thought that once the Commission specified the range it deemed appropriate for offense conduct like Lake's, the details of Lake's offense conduct were sufficiently serious to warrant punishment somewhat high in that range, but he might also have thought that a somewhat lower sentence would have been appropriate if he was selecting a sentence without regard to a Commission-prescribed range. Second, although even before Booker, a sentencing judge was obliged to consider all the factors set forth in 18 U.S.C. § 3553(a), the required use of one of those factors—the Guidelines—rendered of "uncertain import" the significance of the other factors. Now, without the mandatory duty to apply the Guidelines, consideration of the other section 3553(a) factors "acquires renewed significance," and might result in a different sentence. Third, absent the strictures of the Guidelines, counsel would have had the opportunity to urge consideration of circumstances that were prohibited as grounds for a departure.
The Government next argues that the district court's order that the federal sentence imposed run consecutively with any sentence imposed in Woods' pending state criminal proceedings demonstrates that the Booker error was harmless. This court has recognized that the imposition of consecutive sentences may, under some circumstances, demonstrate that a Booker error was indeed harmless. In an unpublished decision, we determined that Booker error was harmless where the sentencing court expressly refused to run the defendant's federal Guidelines sentence with his previously imposed state sentence. United States v. Prones, 145 Fed.Appx. 481, 482 (5th Cir. 2005) (unpublished); see also United States v. Garza, 429 F.3d 165, 170 (5th Cir. 2005) (identifying imposition of consecutive sentences as one of only two circumstances in which this court has found Booker error to be harmless).
However, whether imposition of consecutive sentences is sufficient to demonstrate that a Booker error is harmless is a fact-sensitive inquiry that must examine the relationship between the two sentences imposed. In this case, Woods' PSR reveals that the charges pending against him in state court were unrelated to the federal charges, based on entirely unrelated conduct occurring during a different time period. This Court has previously said that "consecutive sentencing is an appropriate mechanism for imposing distinct punishment for separate criminal acts, and that a defendant has no right to have concurrent sentences imposed for two totally unrelated offenses." United States v. Olivares-Martinez, 767 F.2d 1135, 1137 (5th Cir. 1985) (citations omitted).
Where the imposition of consecutive sentencing is based or appears to be based on the unrelated federal and state charges, we decline to ascribe any motivation to the district court other than adherence to the default rule that totally unrelated crimes should ordinarily receive distinct punishment. The mere imposition of consecutive sentences for unrelated crimes has little or no probative value tending to demonstrate that the Booker error in this case was harmless.
Although this argument would be persuasive under plain-error review, this argument fails to show that the preserved error was harmless. It is the government that must show that the sentencing judge would have imposed the same sentence under an advisory sentencing scheme. The judge's silence as to whether or not he would have imposed a different sentence under an advisory regime does not satisfy this burden. If we were to accept this argument to find that the error was harmless, we would effectively be relieving the government of its burden and placing it on the defendant.
Pineiro, 410 F.3d at 286. As in Pineiro, the Government in this instance has the burden to prove that the district court's error was harmless by showing that the district court would have imposed the same sentence under the post-Booker advisory regime. Woods' inability to point to evidence in the record that the district court would have imposed a different sentence is irrelevant under harmless error analysis. Because it is unclear whether the district court would have imposed the same sentence, the error cannot be considered harmless.
The arguments made by the government are insufficient to demonstrate that the Booker error in this case was harmless. The only factor tending to show that the district court might have imposed the same sentence under the post-Booker sentencing regime is the imposition of a sentence at the top of the Guidelines range. However, for reasons discussed above, such a sentence is insufficient to demonstrate that the error was harmless. None of the other factors to which the government points have probative value, and therefore, even taken cumulatively, fail to satisfy the government's burden. We therefore conclude that the government has failed to meet its burden of showing beyond a reasonable doubt that the district court would have imposed the same sentence under the post-Booker advisory sentencing regime. Thus, Woods is entitled to resentencing in accordance with Booker.
For the reasons set forth above, we vacate Woods' sentence and remand to the district court for resentencing consistent with Booker.
Other Circuits have also found a sentence imposed at the top of the Guidelines-determined range to be persuasive evidence against substantial prejudice under plain-error review See United States v. Brennick, 405 F.3d 96, 101-02 (1st Cir. 2005) ("Given the court's exercise of discretion to sentence at the most severe end of the range and its assertion that it would have given a more severe sentence if it had the latitude to do so, we can see no reasonable probability that the court would have sentenced more leniently had it understood that it was not constrained by the Guidelines."); United States v. Gonzalez-Mercado, 402 F.3d 294, 304 (1st Cir. 2005) ("When, under a mandatory guidelines regime, a sentencing court has elected to sentence the defendant substantially above the bottom of the range, that is a telling indication that the court, if acting under an advisory guidelines regime, would in all likelihood have imposed the same sentence."); United States v. Mozee, 405 F.3d 1082, 1091-92 (10th Cir. 2005) ("Because the court decided to maximize punishment rather than exercise leniency where it had discretion, there is no basis for us to assume Mr. Mozee would receive a lesser sentence if he were resentenced under a discretionary sentencing regime in which the district court is required to `consider' the guidelines when it exercises its discretion."), cert. denied, ___ U.S. ___, 126 S. Ct. 253, 163 L. Ed. 2d 230 (2005).
The Tenth Circuit has disagreed with this approach, and in United States v. Riccardi, that court held that a constitutional Booker error was harmless where the district court sentenced at the top of the range. See 405 F.3d 852, 874-75 (10th Cir. 2005), cert. denied, ___ U.S. ___, 126 S. Ct. 299, 163 L. Ed. 2d 260 (2005). The Tenth Circuit's decision in Riccardi, however, provides little analysis in support of this conclusion, instead relying on the Sixth Circuit opinion in United States v. Bruce, an opinion that concludes only that a sentence at the top end of the Guidelines-determined range was probative under the plain-error standard, not the harmless error standard. Moreover, the Sixth Circuit's opinion on these grounds in Bruce was later vacated, and the defendant's sentence vacated and remanded for resentencing. See United States v. Bruce, 396 F.3d 697, 720 (6th Cir. 2005), vacated, 405 F.3d 1034 (6th Cir. 2005). We find the Tenth Circuit's approach less persuasive than that followed by the Second Circuit.
This recommended departure was based on U.S.S.G. § 4A1.3, p.s., which provides that if "reliable information indicates that the criminal history category does not adequately reflect the seriousness of the defendant's past criminal conduct or the likelihood that the defendant will commit other crimes, the court may consider imposing a sentence departing from the otherwise applicable guideline range."
Indeed, this court has noted that even a departure actually imposed by the district court in some cases may not be enough to demonstrate that a Booker error was harmless beyond a reasonable doubt. See United States v. Garza, 429 F.3d 165, 171 (5th Cir. 2005) ("Yet, even a discretionary departure decision is informed by the Guidelines and `thus sheds little light on what a sentencing judge would have done knowing that the guidelines were advisory.'") (quoting United States v. Schlifer, 403 F.3d 849, 854 (7th Cir. 2005)); see also United States v. Burke, 425 F.3d 400, 417 (7th Cir. 2005). Because the district court declined to depart upwardly, we need not address that question in this case.


text:
Application of Donald A. Colbert and Algis Anilionis, Serial No. 436,955, filed October 27, 1982.
Application of Sven Lofdahl, Mathias Uhlen and Martin Lindberg, Serial No. 601,630, filed April 10, 1984. Accorded benefit of Swedish application No. 8204810-9 filed August 23, 1982 and PCT/SE83/00297 filed August 23, 1983.
Fred C. Philpitt, Lawrence E. Laubscher, Lawrence E. Laubscher, Jr., and Robert L. Price for Lofdahl et al. Oral argument by Robert L. Price.
This interference involves an application to Colbert et al, assigned to Replegen Corporation and an application of Lofdahl et al assigned to Pharmacia AB.
A recombinant DNA molecule constructed by in vitro methods and comprising a nucleotide sequence encoding the amino acid sequence of a product selected from the group consisting of protein A, a polypeptide fragment thereof, and a mixture of polypeptide fragments thereof, each of said products having protein A activity.
Lofdahl et al (Lofdahl) was accorded benefit of the filing date, August 23, 1982, of their Swedish patent application No. 8204810-9 in the declaration notice. Accordingly, Lofdahl is senior party.
In accordance with a statement of facts agreed to by the parties under 37 CFR § 1.672(f) dated April 17, 1989, junior party Colbert et al (Colbert) conceived and reduced to practice in the United States the invention defined by the count at least as early as June 25, 1982; Colbert exercised reasonable diligence in reducing to practice the invention defined by the count and that following reduction to practice Colbert did not abandon, suppress or conceal the invention defined by the count. Both parties also agreed that Lofdahl conceived and reduced the invention to practice in Sweden at least prior to September 3, 1981, including the production of a clone having protein A activity and produced by recombinant DNA technique; that Lofdahl entered the U.S., on September 3, 1981, bringing with him from Sweden bacteria plates capable of containing a gene library; that Lofdahl tested some biological material in the U.S. in December, 1981, using a technique provided to him by Thomas Meyer, and conveyed the results to Thomas Meyer.
The issue presented for our determination is whether Lofdahl has established introduction of the invention into the United States prior to June 25, 1982, in accordance with the applicable legal standards. More specifically, the issues presented for our consideration are 1) whether the initial draft of a letter written by Lofdahl and intended for Dr. Novick at Public Health Research Institute (PHRI) in New York City constitutes a conception of the invention and 2) whether Lofdahl's act of bringing bacteria plates containing a gene library of 504 clones including a clone numbered 220 identified as having protein A activity, produced in Sweden, to the U.S. on September 3, 1981 and placing the same in the refrigerator at PHRI constitutes conception and reduction to practice of the invention in the U.S.
*2 Both parties presented briefs and appeared at final hearing through counsel.
Lofdahl stated that in the spring of 1981, he wrote to Dr. Novick at the PHRI regarding his forthcoming work at the Institute. The initial draft of this letter is submitted as Ex. 5. Lofdahl alleged that this draft (at the bottom of page 1) refers to work on a gene library from S. Aureus in E. Coli which was under preparation in Sweden and at the bottom of page 2, he noted that "to that point the experiments had been unsuccessful in a homologous system, but that I was convinced that it would be better to use a heterologous system, (i.e., to clone with E. coli as host), and that I intended to look for protein A production from the clones." (R-24).
Sven Lofdahl, Mathias Uhlen and Martin Lindberg, coinventors of the subject matter of the involved application, worked in laboratories of Uppsala University, Uppsala, Sweden. The coinventors stated in their declaration that a gene library comprising 504 clones was made by obtaining 8-10 kilobase chromosomal DNA fragments from Staphylococcus aureus, inserting these DNA fragments into vector pBR 322 and transforming the hybrid vector into Escherichia coli. (R-9-14). Lab technician Hans Peterrsson, an employee of coinventor Lindberg, testified that he was responsible for culturing and numbering the gene library containing the 504 clones and replicating the gene library into at least two sets of 21LA plates. By August 11, 1981, Professor Hans Wigzell of Uppsala University, tested the 504 clones for protein A activity using the ELISA technique and found that clone No. 220 tested positive for protein A activity (R-41-42; Ex. 2, 2A and 3). Bengt Guss testified that sometime after September of 1981 while in the employ of Lindberg and Uhlen, he continued to work on characterizing and analyzing the protein A active clone with regard to gene structure by employing restriction enzyme analysis. (R-29- 31). All of the above work was done in Sweden.
Lindberg testified that the gene library was replicated in order to provide Lofdahl with a fresh complete copy of the gene library prior to his departure to the U.S. on September 3, 1981. (R-39). Lofdahl testified that he personally handcarried bacteria plates containing the gene library into the U.S. on September 3, 1981. Lofdahl offers the testimony of his wife, Gunilla, to corroborate transporting of the bacteria plates to the U.S and the testimony of Saleem Khan (Khan), Alexandra Gruss (Gruss), Hakan Gadler (Gadler) and Thomas Meyer (Meyer), coworkers at PHRI, as corroboration of the invention in this country. Specifically, Gunilla Lofdahl stated that she packed bacteria plates wrapped in Parafilm having a characteristic odor into her husband's luggage; that she was aware that these plates formed a "gene bank" produced by her husband and collaborators at the University; and that it contained genetically manipulated bacteria capable of producing a substance called protein A. Gruss and Khan testified that they learned from Lofdahl through conversations with him that Lofdahl had a staphylococcal gene library and that he was working a protein A project. (R-44, 45, and 47). Similarly, Gadler testified that he learned from conversing with Lofdahl that Lofdahl brought a gene library, produced in Sweden, to the U.S. and that the library contained a recombinant clone which had protein A activity which would be useful (R-49). Likewise, Meyer testified that through conversations with Lofdahl he learned from Lofdahl that he kept in his laboratory at PHRI a recombinant E. Coli clone having protein A activity, i.e., containing a functional staphylococcal protein A gene. In addition, Meyer testified that he introduced Lofdahl to an assay technique for testing for protein A activity which employs radioactive-labelled IgG and detects protein A activity radiographically and that he provided Lofdahl with the necessary radioactive-labelled IgG. (R-52-53). Lofdahl averred that in December 1981, he tested the protein A active E. Coli clone No. 220 in the U.S. using the technique taught to him by Meyer and then showed Meyer the autoradiographs obtained together with the corresponding agar plates with live colonies. (R-55-56).
*3 From this record and exhibits, Lofdahl concludes that he has established 1) conception of the invention in the United States as evidenced by the initial draft of a letter intended for Dr. Novick (Exhibit 5) and 2) conception and reduction to practice of the invention on September 3, 1981 when Lofdahl came to the United States and brought with him bacteria plates containing a gene library of 504 clones which included clone No. 220 having an active protein A material produced in Sweden, which Lofdahl alleges conforms to all the limitations of the count, and placed the plates in a refrigerator at the PHRI in New York City.
Preliminarily, we note that Colbert points out that the Lofdahl record alleges oral conception of the invention in the United States on or about April 20, 1981 by Sven Lofdahl to Richard Novick and others at the Public Health Research Institute in New York. R-8. However, the Lofdahl position with regard to this activity for conception is not set forth in the brief. Matters not raised in the brief are ordinarily regarded as abandoned. Photis v. Lunkenheimer, 225 USPQ 948 (Bd.Pat.Int.1984).
We hold that Lofdahl has failed to establish conception and reduction to practice of the subject matter of the count in issue in the United States prior to June 25, 1982, the date of conception and reduction to practice given to Colbert et al.
Nor do we find that Lofdahl's act of bringing bacteria plates into the U.S. and placing the same in a refrigerator at the PHRI constitute simultaneous conception and reduction to practice in the U.S. of the subject matter of the count in issue as alleged by Lofdahl. In the instant case, we find that Lofdahl has not sustained his burden of establishing by a preponderance of evidence that a compound within the scope of the count, i.e., a DNA recombinant molecule comprising a nucleotide sequence encoding for protein A or a fragment of protein A, was introduced into this country before June 25, 1982. Our reasons follow.
In the case of conception and reduction to practice, it is well settled that the conception must take place in the United States, or in lieu thereof, it must have been brought to this country or must have been communicated to someone in this country. Wilson v. Sherts, 81 F.2d 755, 28 USPQ 379 (CCPA 1936). If the invention is reduced to practice in a foreign country and knowledge of the invention was brought into this country and disclosed to others, the inventor can derive no benefit from the work done abroad and such knowledge is merely evidence of conception of the invention. DeKando v. Armstrong, 169 O.G. 1185, 1911 CD 413 (App.D.C.1911); see also 35 USC 104. [FN4] However, the nature of the work abroad might be important in determining the identity of the invention or whether the inventor had any concept of it or not, but it is incumbent upon the inventor to prove that the invention was introduced into the United States. Breuer v. DeMarinis, 558 F.2d 22, 194 USPQ 308 (CCPA 1977); and Rebuffat v. Crawford, 68 F.2d 980, 982, 20 USPQ 321, 324 (CCPA 1934). Introduction of the invention into this country on behalf of the inventors must be judged by what knowledge was imparted to others and by the items brought into the U.S. by Lofdahl. Micheletti v. Tapia, 196 USPQ 858 (Bd.Pat.Int.1976).
*4 Conception is the "formation in the mind of the inventor, of a definite and permanent idea of the complete and operative invention, as it is hereafter to be applied in practice. Hybritech, Inc. v. Monclonal Antibodies, Inc., 802 F.2d 1367, 1376, 231 USPQ 281, 87 (Fed.Cir.1988), cert. denied, 480 U.S. 947 (1987). For a compound, conception requires both the idea of the invention's structure and possession of an operative method of making it. Oka v. Youssefyeh, 849 F.2d 581, 583, 7 USPQ2d 1169, 1171 (Fed.Cir.1988).
The invention recited in the count at issue is directed to a recombinant DNA molecule, a complex chemical compound, comprising a nucleotide sequence encoding the amino acid sequence for protein A or a fragment thereof. Conception of a chemical compound requires that the inventor be able to define it so as to distinguish it from other materials, and to describe how to obtain it. Amgen, Inc. v. Chugai Pharmaceutical Co. Ltd., 18 USPQ2d 1016, 1020, 1021 (Fed.Cir.1991) citing Oka, 849 F.2d at 583, 7 USPQ2d at 1171. When an inventor is unable to envision the detailed constitution of a gene so as to distinguish it from other materials, as well as a method for obtaining it, conception has not been achieved until reduction to practice has occurred, i.e., until after the gene has been isolated. Amgen, Inc. v. Chugai Pharmaceutical Co. Ltd., supra.
We find no evidence in this record that Lofdahl had possession of the chemical structure of the complex chemical compound of the count, i.e., that the DNA molecule had been isolated and its nucleotide sequence known, before June 25, 1982 and that knowledge of the chemical structure and method of making it was communicated to someone in the U.S. Simply recognizing that it tests positive in an assay does not provide sufficient chemical structure or sufficient characteristics of the recombinant molecule such that one of ordinary skill in the art would be able to distinguish it from other materials. Amgen, Inc. v. Chugai Pharmaceutical Co., Ltd., supra. It is not sufficient to define the recombinant molecule by its principal biological property, e.g., having protein A activity, because an alleged conception having no more specificity than that is simply a wish to know the identity of any material with that biological property. Amgen, Inc. v. Chugai Pharmaceutical Co., Ltd., supra.
Lofdahl maintains that it was sufficient that he himself brought the plates to the U.S. and that he knew the identity of the gene material, how to produce the active gene, and knew the utility of the active gene. On the contrary, it is insufficient that the invention was brought to this country by the inventor himself. The inventor must make an adequate disclosure of the invention to some one in this country. Conception of an invention must have been manifested or proved by means of exterior acts or declarations (disclosures). I Rivise & Caesar, Interference Law and Practice, § 116, (p. 338) (Michie Co.1943). Herein, the bacteria plates were not accompanied by any documentation which would adequately show importation, identification and method of preparation of the complex chemical compound of the count. Cf. Breuer v. Demarinis, supra (where a transmission record included the infrared spectrum of the transmitted compound and clearly disclosed the synthesis and chemical structure of the compound within count). Moreover, Lofdahl has provided no objective evidence that establishes with certainty that he knew the "identity" of the gene material, i.e., the nucleotide sequence of protein A, as required by the count and that such knowledge was communicated to others in the U.S. While Lofdahl knew of a means of producing a staphylococcal gene library and knew that clone 220 produced a positive result when subjected to an ELISA technique, until the clone was isolated and its sequence known, there was no certainty that clone 220 encoded the amino acid sequence for protein A.
*5 The testimony of Lofdahl's wife, Gunilla, and coworkers Khan, Gadler, Meyer and Guss to corroborate the introduction of the invention into this country is ineffective since the Lofdahl record has not established conception and reduction to practice of the invention of the count in this country. Moreover, their statements which originated from the inventor himself cannot constitute independent corroboration of the inventor's acts. Larson v. Johenning, 17 USPQ2d 1610 (BPAI 1990); Reese v. Hurst, 661 F.2d 1222, 211 USPQ 936, 940 (CCPA 1981).
For the foregoing reasons, judgment as to the subject matter of count 2 is awarded to Donald A. Colbert and Algis Anilionis, the junior party. Sven Lofdahl, Mathias Uhlen and Martin Lindberg are not entitled to claims 23 through 42 which correspond to the count.
FN2. The record and exhibits will be referred to below as R- and Ex-.
FN3. Dr. Novick did not testify in this proceeding.
In proceedings in the Patent and Trademark Office and in the courts, an applicant for a patent, or a patentee, may not establish a date of invention by reference to knowledge or use thereof, or other activity with respect thereto, in a foreign country, except as provided in sections 119 and 365 of this title.

matches:
application No. 8204810
application No. 8204810
§ 1
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
§ 116
v.
v.
v.


text:
A petition for removal which alleges the diverse citizenship of the parties in the present tense is defective, and if it does not appear in the record that such diversity also existed at the commencement of the action, the cause will be remanded to the circuit court with directions to send it back to the state court, with costs against the party at whose instance the removal was made.
This action was commenced on the 25th day of July, 1881, in one of the courts of Missouri by the defendant in error against the Texas and Atlantic Refrigerator Car Company, a corporation of that state, Robert S. Stevens and Henry D. Mirick. Its object was to reach, and have applied in satisfaction of a judgment obtained by the plaintiff against the car company, the several amounts due from Stevens and Mirick on their subscriptions of stock in that company.
of the Missouri, but are citizens of the State of New York."
The state court made an order for the removal of the case to the circuit court of the United States. In the latter court, the necessary pleadings having been filed, the case was tried, resulting in a verdict and judgment against Stevens for the sum of $5,027.33, and against Mirick for the sum of $627.41. The court having overruled a motion for new trial and also a motion in arrest of judgment, Stevens has brought the case here for review.
No question was made in the court below or in this Court as to the right of Stevens and Mirick to remove the case from the state court.
"in cases where jurisdiction depends upon the citizenship of the parties, such citizenship, or the facts which in legal intendment constitute it, should be distinctly and positively averred in the pleadings, or they should appear affirmatively and with equal distinctness in other parts of the record."
Mansfield, Coldwater &c. Railway v. Swan, 111 U. S. 379, 111 U. S. 382; Hancock v. Holbrook, 112 U. S. 231; Thayer v. Life Association, 112 U. S. 719; Continental Ins. Co. v. Rhoads, 119 U. S. 239.
2. The case was not removable from the state court unless it appeared affirmatively in the petition for removal or elsewhere in the record that at the commencement of the action, as well as when the removal was asked, Stevens and Mirick were citizens of some other state than the one of which the plaintiff was at those respective dates, a citizen. Gibson v.
Bruce, 108 U. S. 562; Houston & Texas Central Railway v. Shirley, 111 U. S. 358, 111 U. S. 360; Mansfield, Coldwater &c. Railway v. Swan, 111 U. S. 379, 111 U. S. 381; Akers v. Akers, 117 U. S. 197.
3. The petition for removal does not allege the citizenship of the parties except at the date when it was filed, and it is not shown elsewhere in the record that Stevens and Mirick were at the commencement of the action, citizens of a state other than the one of which the plaintiff was at that date, a citizen. The court therefore cannot consider the merits of the case. Metcalf v. Watertown, 128 U. S. 586; Morris v. Gilmer, 129 U. S. 315, 129 U. S. 325.
The judgment is reversed upon the ground that it does not appear that the circuit court had jurisdiction, and the case is remanded to that court with directions to send it back to the state court, the plaintiff in error to pay the costs in this Court and in the court below. Mansfield &c. Railway v. Swan, 111 U. S. 379.


text:
Facts are crucial—indeed, typically decisive—in litigation. In our civil justice system, determining the facts depends on the litigants, who discover, present and rebut evidence to prove their version of the relevant facts, all in an adversarial system designed to reveal the truth.
With growing frequency, however, courts in this information age—including appellate courts—are "finding" facts by "Googling," or researching on the Internet and then taking "judicial notice" of facts found online. And courts are finding a variety of facts this way, from facts about Lyme disease, as in Gent v. CUNA Mutual Insurance Society, 611 F.3d 79, 84 n.5 (1st Cir. 2010); the number of games that a National Football League lineman played in California, as in Matthews v. NFL Management Council, 688 F.3d 1107, 1113 (9th Cir. 2012); and even that "there are lots of different yellow rain hats," as in United States v. Bari, 599 F.3d 176, 178-81 (2d Cir. 2010).
What is the significance of this increasingly common practice of judicial Internet fact-finding? While we don't get to the bottom of this important question here, we highlight some of the critical issues implicated by judicial Internet research and fact-finding. In doing so, we will discuss the most recent and prominent example of appellate "Googling"—Judge Richard Posner's opinion for the U.S. Court of Appeals for the Seventh Circuit in Rowe v. Gibson, 798 F.3d 622 (7th Cir. 2015), where the court reversed a grant of summary judgment based in part on facts found on various websites and extra-record materials.
The ramifications of Posner's opinion could be significant—from minor changes in rules governing judicial notice of facts outside of the record, to more consequential changes in our adversarial fact-finding system. Most immediately though, the circuit's opinion should send a signal to litigants and practitioners alike that it is critical to understand the courts' evolving approaches to the factual record and the practice followed in the court in which they find themselves.
Canon 2.9(c) of the American Bar Association's Model Code of Judicial Conduct states that "a judge shall not investigate facts in a matter independently, and shall consider only the evidence presented and any facts that may properly be judicially noticed." The canon thus lays out the two avenues for determining facts—the parties' adversarial presentation of evidence and the court's taking of "judicial notice." In the federal system, judicial notice is governed by Federal Rule of Evidence 201, which provides that a "court may judicially notice a fact that is not subject to reasonable dispute because it is generally known within the trial court's territorial jurisdiction; or can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." "Generally known" facts are readily understood—ducks are birds, the world is round, France is in Europe. Facts in the second category—those "whose accuracy cannot reasonably be questioned"—include those found in government documents, dictionaries, maps and encyclopedias.
Courts have been reluctant to expand this second category of judicial notice, insisting that the fact at issue be genuinely indisputable. Indeed, even since the advent of the Internet, many courts have maintained their strict view of judicial notice—reflected, for example, in their frequent refusal to take judicial notice of facts found on websites such as Wikipedia, as held in Badasa v. Mukasey, 540 F.3d 909, 910-11 (8th Cir. 2008), or even more "official" sources, such as the website for the New York State Department of Insurance, as in NYC Medical and Neurodiagnostic v. Republic Western Insurance, 798 N.Y.S.2d 309, 313 (N.Y. App. Term 2004).
Still, however, there is no denying the growing trend of courts opening up their Web browsers, searching for facts they cannot find in the record, and taking judicial notice of facts found online. As two commentators recently observed, while in 1997 11 federal appellate court decisions cited to Internet sources, in 2014, that number had risen to over 600.
Internet fact research by courts is here to stay, it seems, but important questions remain: What websites and facts are trustworthy? Can any fact—regardless of how pivotal to the case—be "found" online in the absence of party-presented evidence? And what about appellate judges judicially noticing facts found online during an appeal, where the parties lack a meaningful opportunity to respond to those facts? Enter Posner and his recent opinion in Rowe.
Rowe involved a prison inmate, named Jeffrey Rowe, who was diagnosed with gastroesophageal reflux disease and prescribed Zantac, which he was supposed to take twice a day with meals. However, Rowe was told that he would be allowed to take Zantac only at 9:30 a.m. and 9:30 p.m., even though his meals were scheduled for 4 a.m. and 4 p.m. Rowe complained and later brought suit, alleging deliberate indifference to a serious medical need. But the district court granted summary judgment to the defendants, concluding that Rowe failed to rebut the prescribing doctor's affidavit stating that it did not matter what time of day Rowe received his Zantac.
A divided Seventh Circuit panel reversed the decision. Posner's majority opinion is filled with assertions of fact supported by online authorities, but not the summary judgment record. Although Posner cited some online authorities only to support background facts, such as the fact that Zantac is "merely a trade name for ranitidine," he cited other online authorities to contradict the doctor's opinion and create a genuine issue of material fact. For example, Posner found that, according to Zantac's manufacturer: "While Zantac can be taken at any time 'to relieve symptoms,' in order 'to prevent symptoms' it should be taken '30 to 60 minutes before eating food or drinking beverages that cause heartburn.'"
Posner defended his reliance on extra-record facts that were unsuitable for judicial notice under Rule 201. He acknowledged that those facts "tend[ed] to fall somewhere between facts that require adversary procedure to determine and facts of which a court can take judicial notice," but he concluded they were "closer to the second in a case like this in which the evidence presented by the defendants in the district court was sparse and the appellate court need only determine whether there is a factual dispute sufficient to preclude summary judgment." In dissent, Judge David Hamilton called the majority opinion "unprecedented" and countered that "the enterprise of judicial factual research is unreliable when it loses the moorings to the law of judicial notice."
Posner's approach to Internet research and judicial notice recognizes a category of judicially noticeable facts that are neither "generally known" nor "indisputable." The Second Circuit, in Bari, took a similar but more limited approach, finding that judicial notice is appropriate to "confirm hunches with a brief visit to a favorite search engine that in the not-so-distant past would have gone unconfirmed."
Other circuits appear to take a different tack. The Third Circuit, for example, has suggested that facts obtained through judicial Internet research can be used to provide background details, as in United States v. Walker, 529 F. App'x 256, 265 & n.2 (3d Cir. 2013), which cited the Urban Dictionary's definition of "murse" as "a man-purse" in a case pertaining to purse ownership, but cannot generally be judicially noticed under Rule 201, as in Victaulic v. Tieman, 499 F.3d 277, 236 (3d Cir. 2007). In particular, contrary to Posner's view in Rowe, the Third Circuit in Victaulic concluded that facts found on a corporate website could not be judicially noticed or otherwise relied upon to reach a decision.
The Internet has ushered in a new information age—an era that, it should come as no surprise, has already elicited enormous changes in our legal system. The easy access to massive amounts of information is irresistible to judges, appellate judges included. Perhaps, within limits, appellate Internet-based fact-finding, such as Posner's in Rowe, is something our profession should welcome as a means of better achieving the right and just result. What those limits are, however, and whether new safeguards are necessary are issues that the profession will need to grapple with seriously. In the meantime, litigants and practitioners—especially in appeals—would be wise to remember that the evidentiary record in their cases may never truly be closed. Key facts may be lurking somewhere in the vast realm of the World Wide Web, and courts may even be willing to base their rulings on those facts.
Reprinted with permission from the November 18, 2015 edition of the “The Legal Intelligencer”© 2015 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.

matches: v. v. v. v. v. v. v. v.


text:
D.C. Law Library - § 8–2202. Wildlife control service providers.
↪ Chapter 22. Wildlife Protection.
↪ § 8–2202. Wildlife control service providers.
§ 8–2203. Notice to clients.
§ 8–2202. Wildlife control service providers.
(a) A wildlife control services provider shall recommend and employ nonlethal means in preference to lethal means for the control of problem wildlife.
(b) All traps and exclusion devices used by a wildlife control services provider shall be labeled with the name, address, and phone number of the wildlife control service provider.
(c) Traps used by a wildlife control services provider shall be set in a manner designed to catch the target animal and in the manner likely to avoid capture of and harm to non-target animals.
(d) Wildlife shall be captured, handled, and, when permissible, transported, in a manner to ensure against causing unnecessary discomfort, behavioral stress, or physical harm to the animal, including providing protections against weather extremes.
(e) All traps shall be checked by the wildlife control services provider in a timely and reasonable manner, but no more than 24 hours after being set, and at least once every 24 hours thereafter; provided, that traps shall be checked more frequently if environmental conditions require.
(3) Euthanized if relocation or rehabilitation are not feasible.
(4) If none of the other options are feasible, euthanized.
(h) Wildlife expressing symptoms of disease shall be taken to a licensed wildlife rehabilitator or surrendered to the Animal Care and Control Agency for evaluation and assessment. Outbreaks or potential widespread occurrence of suspect diseases, such as avian botulism, shall be reported to the Department.
(i) A wildlife control services provider shall make every reasonable effort to preserve family units using humane eviction or displacement and reunion strategies and shall not knowingly abandon dependent young wildlife in a structure.
(j) Wildlife shall not be kept in captivity longer than 36 hours unless specifically authorized by the Department or unless reunion attempts are being employed. In the case of attempted reunion, a wildlife control services provider may hold wildlife in captivity for up to 72 hours.
(3) Minimize potential hazards to the general public.
(l) A wildlife control services provider shall not use sticky or glue traps to control any wildlife.
(m) A wildlife control services provider shall not use leghold and other body-gripping traps, body-crushing traps, snares, or harpoon-type traps to control any wildlife.
(n) A wildlife control services provider shall kill wildlife only by methods that conform to the most recently published Report of the American Veterinary Medical Association Panel on Euthanasia, unless otherwise prohibited by this chapter or rules promulgated by the Department.
(o) A wildlife control services provider shall use the available method of euthanasia that is the quickest, least stressful, and least painful to the animal under the circumstances.
Former § 8-2202 has been recodified as § 8-2032.

matches:
§ 8
§ 8
§ 8
§ 8
§ 8
§ 8


Defamation remains a criminal offence in Austria.
Defamation (üble Nachrede, Art. 111): Accusing someone of a disreputable characteristic or disposition, dishonourable behaviour or of a behaviour offensive to good morals that may denigrate that person or bring him/her into disrepute in the eyes of the public. The penalty is six months in prison or a fine of 360 times the daily rate. For defamation committed through print, broadcasting “or by any other means by which the defamatory content is made accessible to a wider public”, the possible penalty is up to one year in prison and a fine of up to 760 times the daily rate.
Insult (Beleidigung, Art. 115): Insulting, ridiculing, physically mistreating, or threatening a person with physical mistreatment before at least three other individuals. The penalty is up to three months in prison or a fine of up to 180 times the daily rate.
Slander (Verleumdung, Art. 297): Falsely and knowingly accusing another person of a criminal offence of the failure to fulfil an official duty in such a way that puts the person in danger of criminal prosecution. The penalty is up to one year in prison or a fine of up to 720 times the daily rate. However, if the accusation relates to a criminal act that is punishable by over a year in prison, the penalty is imprisonment from six months to five years.
Note, however, that certain public officials have a procedural advantage in criminal defamation cases. Art. 117 of the Austrian Criminal Code states that defamation or insult committed against civil servants, the Austrian President, and ministers of nationally recognised churches or religious communities is to be prosecuted ex officio. The same rule applies to insult committed against individuals on account of their “religion or worldview” as well as on account of characteristics such as race and ethnic origin.
However, the Austrian President has a procedural advantage in criminal defamation cases. See above under “Criminal defamation of public officials”.
Publicly and in a hateful manner insulting or disparaging the Republic of Austria or one of its federal states is a criminal offence under Art. 248(1) of the Austrian Criminal Code. The penalty is up to one year in prison or a fine of up 720 times the daily rate.
Insulting or disparaging the Austrian federal flag or an Austrian state flag as displayed at an official or public event, or a national emblem or the national or state anthems is an offence under Art. 248(2). The penalty is up to six months in prison or a fine of up to 360 times the daily rate.
Additionally, Art. 116 of the Criminal Code provides that criminal provisions on defamation and insult also apply to expressions directed at the national or state parliaments, the armed forces or a government office.
Insulting, disparaging or otherwise denigrating the flag or symbol of a foreign state or of an intergovernmental body is an offence under Criminal Code Art. 317. The penalty is up to six months in prison or a fine of up to 360 times the daily rate.
Ridiculing or denigrating a religious doctrine, a religious custom or a person or object that constitutes an object of worship by a nationally recognised church or religious community is an offence under Art. 188 if the act may cause “justified indignation”. The penalty is imprisonment for up to six months or a fine of up to 360 times the daily rate.
Defamation and insult are generally prosecuted privately. However, Art. 117 of the Austrian Criminal Code states that defamation or insult committed against civil servants, the Austrian President, and ministers of nationally recognised churches or religious communities, is to be prosecuted ex officio. The same rule applies to insult committed against individuals on account of their “religion or worldview” as well as on account of characteristics such as race and ethnic origin.
The following are official data on criminal convictions for the year 2013 from the Austrian Statistics Agency (Statistik Austria).
• For Art. 111 (defamation), there were 23 convictions, resulting in six prison sentences and 18 fines.
• For Art. 115 (insult), there were 35 convictions, resulting in 17 prison sentences and 25 fines.
• For Art. 297 (slander), there were 320 convictions, resulting in 220 prison sentences and 64 fines.
• For Art. 248 (denigration of the state and its symbols), there were 0 convictions.
• For Art. 317 (denigration of a foreign state and its symbols), there were 0 convictions.
• For Art. 188 (blasphemy), there were 0 convictions.
The most recent year for which statistics are publicly available is 2015. However, detailed results per article of the Criminal Code are not provided. However, statistics indicate that there 42 convictions for Arts. 111 to 117 (defamation and insult) in 2015. Official statistics also offer an overview of the development of criminal justice regarding defamation insult through time. In the year 1975, there were 344 convictions for Arts. 111 – 117. In 1985, 298; in 1995, 169; in 2005, 77. The overall trend clearly shows a decline in convictions.
In Austria, claims for civil damages related to a loss of honour can be pursued under: (1) the Media Law (Mediengesetz), which provides that victims of defamation, insult, or slander committed through the media have the right to sue for non-pecuniary damages; and (2) the General Civil Code (Allgemeines Bürgerliches Gesetzbuch), which provides allows claimants to sue for compensation in the case of: (a) insult to honour (Ehrenbeleidigung) that causes actual damage or a loss of income; and (b) the publication of purportedly factual reports that were false or that the journalist (or other defendant) should have known were false and that damage the credit, acquisitional capacity, or advancement of another.
The Civil Code only allows for strictly compensatory damages. There are no caps to this.
The Media Law only allows for immaterial damages for suffering. These are capped at €20,000, or €50,000 for slander or particularly harmful defamation. The amount is determined based on type and reach of the media in question, the magnitude of the effect caused by the defamatory statement, and the financial circumstances of the media owner (Art. 6).
Privileged Reporting: No damages can be awarded for faithful reports of public sittings of the Federal or state parliaments or committees thereof (Art. 6.2.1). The media are also not liable for damages for faithfully reproducing the statement of a third person as long as an overriding public interest in hearing the statement exists ( Art. 6.3a). Nor are the media liable for defamatory content transmitted via live radio or television programming or for content on third-party websites as long as proper journalistic duty has been observed.
Other defences, such as honest opinion, have been recognised in case law.
For the Civil Code, provision (a), relates to insult as opposed to defamatory accusation, and is therefore not subject to a defence of truth. However, public interest may be considered.
For provision (b), the defendant can only be liable for damages if the report was false or if he ought to have known (i.e., via journalistic duty) that the report was false (i.e. the journalist must have acted at least slightly negligently).
Only the media owner is liable for damages under the Media Law. However, in certain situations the media owner can recover some of the damages from the journalist responsible for the offending content. An individual journalist can attract liability under the General Civil Code, and can also be prosecuted under criminal law.
According to Austrian legal experts, the Austrian Supreme Court (Oberste Gerichtshof) generally – and increasingly – applies European Court of Human Rights (ECtHR) case law, particularly as this relates to the press and matters of public interest.
Separation of fact and value The Supreme Court, following the EctHR, distinguishes between accusations of fact and value judgments. In the Court’s , a “preliminary question” for all matters of defamation is “whether a publication can be seen as a value judgement, in which case proof of truth is a priori excluded, or as essentially an assertion of fact, whose correctness is in principle objective and subject to a inquiry of truth”.
Meaning of an expression to the Supreme Court, a defamatory statement is one in which one’s social standing is damaged according to the “average [common] understanding of a socially integrated, value conscious individual”. The “prototype” for the Court is the accusation of a criminal offence. The Court has also held that the meaning of a statement must take into account the external circumstances in which it was made as well as the particular publication style, such as caricature, parody, and satire must be fully accounted for.
Limits of free expression Following ECtHR jurisprudence, the Supreme Court has affirmed that freedom of expression “does not apply simply to ‘news’ or ‘ideas’ that are viewed as convenient or inoffensive or with indifference, but also to [expressions] that offend, shock, or disturb”. In the Supreme Court’s , “in the case of value judgments – which the ECtHR tends to accept [as admissible] – the limits of acceptable criticism lie with ‘excessive judments’, with potential value judgments without basis in fact, and with formal insult. An ‘excessive judgment’ is one that is “disproportionate in terms of the facts at hand or that has no relationship to objective reality”. The Supreme Court has that “the limits of acceptable criticism as regards political figures relating to their official function are considerably wider that as regards private persons”. This standard also applies to “persons leading a public life”. The same applies to politicial debate, in which only a “thin” demonstration of truth can be demanded.
• The maximum fine for defamation (Art. 111) was increased from 360 to 720 times the daily rate.
• The possibility of a fine (max. 720 times the daily rate) was introduced as a punishment for insulting the state; previously, the only penalty foreseen was imprisonment for up to six months.
• The possibility of a fine (max. 720 times the daily rate) was introduced as a penalty for some forms of slander (Art. 297).
See, for example, Entscheidungstext 15Os6/08h (15Os7/08f).
RIS – Justiz – Entscheidungstext 15Os106/10t (15Os49/11m, 15Os50/11h).