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This chapter is wholly taken up with the reign of Ahaz; and we have quite enough of it, unless it were better. He had a good father, and a better son, and yet was himself one of the worst of the kings of Judah. I. He was a notorious idolater (v. 1-4). II. With the treasures of the temple, as well as his own, he hired the king of Assyria to invade Syria and Israel (v. 5-9). III. He took pattern from an idol's altar which he saw at Damascus for a new altar in God's temple (v. 10–16). IV. He abused and embezzled the furniture of the temple (v. 17, 18). And so his story ends (v. 19, 20).
We have here a general character of the reign of Ahaz. Few and evil were his days—few, for he died at thirty-six—evil, for we are here told, 1. That he did not that which was right like David (v. 2), that is, he had none of that concern and affection for the instituted service and worship of God for which David was celebrated. He had no love for the temple, made no conscience of his duty to God, nor had any regard to his law. Herein he was unlike David; it was his honour that he was of the house and lineage of David, and it was owing to God's ancient covenant with David that he was now upon the throne, which aggravated his wickedness; for he was a reproach to that honourable name and family, which therefore was really a reproach to him (Degeneranti genus opprobrium—A good extraction is a disgrace to him who degenerates from it), and though he enjoyed the benefit of David's piety he did not tread in the steps of it. 2. That he walked in the way of the kings of Israel (v. 3), who all worshipped the calves. He was not joined in any affinity with them, as Jehoram and Ahaziah were with the house of Ahab, but, ex mero motu—without any instigation, walked in their way. The kings of Israel pleaded policy and reasons of state for their idolatry, but Ahaz had no such pretence: in him it was the most unreasonable impolitic thing that could be. They were his enemies, and had proved enemies to themselves too by their idolatry; yet he walked in their way. 3. That he made his sons to pass through the fire, to the honour of his dunghill-deities. He burnt them, so it is expressly said of him (2 Chr. 28:3), burnt some of them, and perhaps made others of them (Hezekiah himself not excepted, though afterwards he was never the worse for it) to pass between two fires, or to be drawn through a flame, in token of their dedication to the idol. 4. That he did according to the abominations of the heathen whom the Lord had cast out. it was an instance of his great folly that he would be guided in his religion by those whom he saw fallen into the ditch before his eyes, and follow them; and it was an instance of his great impiety that he would conform to those usages which God had declared to be abominable to him, and set himself to write after the copy of those whom God had cast out, thus walking directly contrary to God. 5. That he sacrificed in the high places, v. 4. If his father had but had zeal enough to take them away, the debauching of his sons might have been prevented; but those that connive at sin know not what dangerous snares they lay for those that come after them. He forsook God's house, was weary of that place where, in his father's time, he had often been detained before the Lord, and performed his devotions on high hills, where he had a better prospect, and under green trees, where he had a more pleasant shade. It was a religion little worth, which was guided by fancy, not by faith.
Here is, 1. The attempt of his confederate neighbours, the kings of Syria and Israel, upon him. They thought to make themselves masters of Jerusalem, and to set a king of their own in it, Isa. 7:6. In this they fell short, but the king of Syria recovered Elath, a considerable port upon the Red Sea, which Amaziah had taken from the Syrians, ch. 14:22. What can those keep that have lost their religion? Let them expect, thenceforward, to be always on the losing hand. 2. His project to get clear of them. Having forsaken God, he had neither courage nor strength to make head against his enemies, nor could he, with any boldness, ask help of God; but he made his court to the king of Assyria, and got him to come in for his relief. Those whose hearts condemn them will go any where in a day of distress rather than to God. Was it because there was not a God in Israel that he sent to the Assyrian for help? Was the rock of ages removed out of its place, that he stayed himself on this broken reed? The sin itself was its own punishment; for, though it is true that he gained his point (the king of Assyria hearkened to him, and, to serve his own turn, made a descent upon Damascus, whereby he gave a powerful diversion to the king of Syria, v. 9, and obliged him to let fall his design against Ahaz, carrying the Syrians captive to Kir, as Amos had expressly foretold, ch. 1:5), yet, considering all, he made but a bad bargain; for, to compass this, (1.) He enslaved himself (v. 7): I am thy servant and thy son, that is, "I will be as dutiful and obedient to thee as to a master or father, if thou wilt but do me this good turn.'' Had he thus humbled himself to God, and implored his favour, he might have been delivered upon easier terms; he might have saved his money, and needed only to have parted with his sins. But, if the prodigal forsake his father's house, he soon becomes a slave to the worst of masters, Lu. 15:15. (2.) He impoverished himself; for he took the silver and gold that were laid up in the treasury both of the temple and of the kingdom, and sent it to the king of Assyria, v. 8. Both church and state must be squeezed and exhausted, to gratify this his new patron and guardian. I know not what authority he had thus to dispose of the public stock; but it is common for those that have brought themselves into straits by one sin to help themselves out by another; and those that have alienated themselves from God will make no difficulty of alienating any of his rights.
I. The model of this new altar, taken from one at Damascus, by the king himself, v. 10. The king of Assyria having taken Damascus, thither Ahaz went, to congratulate him on his success, to return him thanks for the kindness he had done him by this expedition, and, as his servant and son, to receive his commands. Had he been faithful to his God, he would not have needed to crouch thus meanly to a foreign power. At Damascus, either while viewing the rarities of the place, or rather while joining with them in their devotions (for, when he was there, he thought it no harm to do as they did), he saw an altar that pleased his fancy extremely, not such a plain old-fashioned one as that which he had been trained up in attendance upon at Jerusalem, but curiously carved, it is likely, and adorned with image-work; there were many pretty things about it which he thought significant, surprising, very charming, and calculated to excite his devotion. Solomon had but a dull fancy, he thought, compared with the ingenious artist that made this altar. Nothing will serve him but he must have an altar just like this: a pattern of it must be taken immediately; he cannot stay till he returns himself, but sends it before him in all haste, with orders to Urijah the priest to get one made exactly according to this model and have it ready against he came home. The pattern God showed to Moses in the mount or to David by the Spirit was not comparable to this pattern sent from Damascus. The hearts of idolaters walked after their eyes, which are therefore said to go a whoring after their idols; but the true worshippers worship the true God by faith.
II. The making of it by Urijah the priests, v. 11. This Urijah, it is likely, was the chief priest who at this time presided in the temple-service. To him Ahaz sent an intimation of his mind (for we read not of any express orders he gave him), to get an altar made by this pattern. And, without any dispute or objection, he put it in hand immediately, being perhaps as fond of it as the king was, at least being very willing to humour the king and desirous to curry favour with him. Perhaps he might have this excuse for gratifying the king herein, that, by this means, he might keep him to the temple at Jerusalem and prevent his totally deserting it for the high places and the groves. "Let us oblige him in this,'' thinks Urijah, "and then he will bring all his sacrifices to us; for by this craft we get our living.'' But, whatever pretence he had, it was a most base wicked thing for him that was a priest, a chief priest, to make this altar, in compliance with an idolatrous prince, for hereby, 1. He prostituted his authority and profaned the crown of his priesthood, making himself a servant to the lusts of men. There is not a greater disgrace to the ministry than obsequiousness to such wicked commands as this was. 2. He betrayed his trust. As priest, he was bound to maintain and defend God's institutions, and to oppose and witness against all innovations; and, for him to assist and serve the king in setting up an altar to confront the altar which by divine appointment he was consecrated to minister at, was such a piece of treachery and perfidiousness as may justly render him infamous to all posterity. Had he only connived at the doing of it,—had he been frightened into it by menaces,—had he endeavoured to dissuade the king from it, or but delayed the doing of it till he came home, that he might first talk with him about it,—it would not have been so bad; but so willingly to walk after his commandment, as if he were glad of the opportunity to oblige him, was such an affront to the God he served as was utterly inexcusable.
III. The dedicating of it. Urijah, perceiving that the king's heart was much upon it, took care to have it ready against he came down, and set it near the brazen altar, but somewhat lower and further from the door of the temple. The king was exceedingly pleased with it, approached it with all possible veneration, and offered thereon his burnt-offering, etc., v. 12, 13. His sacrifices were not offered to the God of Israel, but to the gods of Damascus (as we find 2 Chr. 28:23), and, when he borrowed the Syrians' altar, no marvel that he borrowed their gods. Naaman, the Syrian, embraced the God of Israel when he got earth from the land of Israel to make an altar of.
IV. The removal of God's altar, to make room for it. Urijah was so modest that he put this altar at the lower end of the court, and left God's altar in its place, between this and the house of the Lord, v. 14. But that would not satisfy Ahaz; he removed God's altar to an obscure corner in the north side of the court, and put his own before the sanctuary, in the place of it. He thinks his new altar is much more stately, and much more sightly, and disgraces that; and therefore "let that be laid aside as a vessel in which there is no pleasure.'' His superstitious invention, at first, jostled with God's sacred institution, but at length jostled it out. Note, Those will soon come to make nothing of God that will not be content to make him their all. Ahaz durst not (perhaps for fear of the people) quite demolish the brazen altar and knock it to pieces; but, while he ordered all the sacrifices to be offered upon this new altar (v. 15), The brazen altar (says he) shall be for me to enquire by. Having thrust it out from the use for which it was instituted, which was to sanctify the gifts offered upon it, he pretends to advance it above its institution, which it is common for superstitious people to do. The altar was never designed for an oracle, yet Ahaz will have it for that use. The Romish church seemingly magnifies Christ's sacraments, yet wretchedly corrupts them. But some give another sense of Ahaz's purpose: "As for the brazen altar, I will consider what to do with it, and give order about it.'' The Jews say that, afterwards, of the brass of it he made that famous dial which was called the dial of Ahaz, ch. 20:11. The base compliance of the poor-spirited priest with the presumptuous usurpations of an ill-spirited king is again taken notice of (v. 16): Urijah the priest did according to all that king Ahaz commanded. Miserable is the case of great men when those that should reprove them for their sins strengthen and serve them in their sins.
Here is, I. Ahaz abusing the temple, not the building itself, but some of the furniture of it. 1. He defaced the bases on which the lavers were set (1 Ki. 7:28, 29) and took down the molten sea, v. 17. These the priests used for washing; against them therefore he seems to have had a particular spite. It is one of the greatest prejudices that can be done to religion to obstruct the purifying of the priests, the Lord's ministers. 2. He removed the covert for the sabbath, erected either in honour of the sabbath or for the conveniency of the priests, when, on the sabbath, they officiated in greater numbers than on other days. Whatever it was, it should seem that in removing it he intended to put a contempt upon the sabbath, and so to open as wide an inlet as any to all manner of impiety. 3. The king's entry, which led to the house of the Lord, for the convenience of the royal family (perhaps that ascent which Solomon had made, and which the queen of Sheba admired, 1 Ki. 10:5), he turned another way, to show that he did not intend to frequent the house of the Lord any more. This he did for the king of Assyria, to oblige him, who perhaps returned his visit, and found fault with this entry, as an inconvenience and disparagement to his palace. When those that have had a ready passage to the house of the Lord, to please their neighbours, turn it another way, they are going down the hill apace towards their ruin.
II. Ahaz resigning his life in the midst of his days, at thirty-six years of age (v. 19) and leaving his kingdom to a better man, Hezekiah his son (v. 20), who proved as much a friend to the temple as he had been an enemy to it. Perhaps this very son he had made to pass through the fire, and thereby dedicated him to Moloch; but God, by his grace, snatched him as a brand out of the burning.

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The Complainant is Keystone Publishing, Inc. of Salt Lake City, Utah, United States of America, represented by Durham Jones & Pinegar, P.C. of Salt Lake City, Utah, United�States of America.
The Respondent is UtahBrides.com of Salt Lake City, Utah, United States of America, represented by Howard, Phillips & Andersen of Salt Lake City, Utah, United States of America.
The disputed domain name <utahwedding.com> is registered with eNom.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the�“Center”) on September 9, 2004. On September 10, 2004, the Center transmitted by email to eNom a request for registrar verification in connection with the domain name at issue. Still on September 10, 2004, eNom transmitted by email to the Center a partial verification response confirming that the language of the proceedings is English and that the domain name would remain under Registrar Lock throughout the proceeding. In addition to eNom’s partial response, the Center made a WHOIS printout, which showed that the disputed Domain Name was registered with eNom, and that Respondent, UtahBrides.com, was the current registrant of the disputed Domain Names. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the�“Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on September 21, 2004. In accordance with the Rules, paragraph 5(a), the due date for Response was October�11, 2004. At the request of the Respondent, the Center granted an extension until October 21, 2004. The Response was filed with the Center on October 21, 2004.
The Center appointed Dennis A. Foster as the sole panelist in this matter on November�3, 2004. 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.
On October 27, 2004, the Complainant sent an email to the Center requesting permission to file a reply to the Respondent’s Response. On October 29, 2004, the Respondent sent an email to the Center opposing the Complainant’s request. Having read the Complaint and the Response, the Panel is prepared to render its decision and, per paragraph 12 of the Rules, the Panel will not request additional filings from the parties. The Panel does not believe there is anything in the Response that the Complainant was not aware of when it filed the Complaint.
The Respondent, UtahBrides.com, bought the disputed domain name, <utahwedding.com>, during 2003, from a predecessor who registered the name on June�19, 2001. The Respondent uses the domain name to direct the public to its main business web site at <utahbrides.com>.
The Complainant acquired the domain name <utahweddings.com> at the end of 1999, from a person who had registered it in 1997. Some time during 2001, the Complainant began using the name UtahWeddings.com as its business name. There is no evidence that the Complainant’s predecessor made any business use of the domain name <utahweddings.com>.
The Complainant and the Respondent are both located in the State of Utah, know each other, and consider themselves business competitors engaged in organizing wedding services in Utah. At one point, the Complainant attempted to buy the disputed domain name from the Respondent.
Complainant’s predecessor, Aaron Barker, registered the domain name <utahweddings.com> on December 1, 1997. Complainant purchased the business and the domain name on November 2, 1999. Like its predecessor, Complainant does business as UtahWeddings.com and uses its website “www.utahweddings.com” to provide information to persons who desire to purchase wedding-related services.
Complainant has contracted to provide specific web pages for a fee, to advertise products such as banquet and reception facilities, bridal attire, catering, flowers, honeymoon accommodations, music, photography, and the like. Complainant also sells its own wedding-related products.
Although it is not registered, UTAHWEDDINGS.COM constitutes a valid common law trademark and service mark under the laws of Utah and the United States.
Respondent may assert that Complainant has no rights in the name UtahWeddings.com because it is descriptive. Complainant disagrees. Although its mark is a combination of name components that might be descriptive by themselves, together they form a distinctive mark that is identified with Complainant’s business.
Even if Complainant’s mark were found to be descriptive, however, it has acquired a secondary meaning. Descriptive marks have been recognized as valid where secondary meaning is established, particularly where a geographic indicator is only part of a trademark.
Secondary meaning can be established through evidence of advertising and promotional activities and through direct evidence from Complainant’s customers. Complainant has established a secondary meaning in its mark UTAHWEDDINGS.COM as a result of extensive advertising and wide-spread name recognition in Utah. Through its mark UTAHWEDDINGS.COM, Complainant is recognized as the premier wedding website in Utah. Complainant has spent US$371,300 in advertising from 2002 through 2004, to promote its “www.utahweddings.com” website, primarily through billboard advertising, television, radio, movie sponsorship, and various print media.
Complainant’s billboards have created substantial goodwill and name recognition. Complainant’s billboards created 40,420,151 gross impressions during the 2004 advertising campaign (Annex F).
Complainant’s television advertising has reached a substantial percentage of Utah residents during its four-year campaign.
As a result of this widespread recognition, in 2003, Complainant received 445,245 total visits to its website from 132,581 unique IP addresses.
As further evidence of secondary meaning, Complainant has provided the declarations of a number of Complainant’s vendor customers, each of whom attests to Complainant’s name recognition as the premier wedding website in Utah (Annex I).
Respondent is in direct competition with Complainant. Like Complainant, Respondent offers services related to the planning of events with a focus on weddings.
The disputed domain name <utahwedding.com> was first registered on June 19, 2001, by Andrea Heid, the owner of <utahbrides.com> at the time. Heid was fully aware of <utahweddings.com> when she registered the disputed domain name in 2001. Respondent purchased the UtahBrides.com business during the spring of 2003, which included the rights in the domain name <utahwedding.com>.
Persons who access the “www.utahwedding.com” website are automatically redirected or “pointed” to the <utahbrides.com> website after a few moments.
Respondent’s domain name <utahwedding.com> is virtually identical to Complainant’s mark UTAHWEDDINGS.COM, the only difference being the letter “s” in Complainant’s mark. The difference between the marks in question - the single letter “s” - is not sufficient to defeat a finding of confusing similarity, particularly given the identical nature of the services marketed by the two companies.
Recognizing that typing errors are typical and that Internet users commonly make errors by eliminating characters when searching on the Internet, panels have uniformly found confusing similarity where the only difference between the complainant’s mark and the respondent’s domain name is a single character.
Complainant is aware of actual confusion that has resulted from the close similarity between its mark and Respondent’s domain name.
Paragraph 4(c) of the Policy describes circumstances that would demonstrate Respondent’s rights to or legitimate interests in the domain name for purposes of the Policy, paragraph 4(a)(ii). Respondent satisfies none of these circumstances. Given the nearly identical similarity between the two URL addresses, it seems clear that Respondent has no other purpose for the website than to divert Complainant’s actual or potential customers to Respondent’s website.
Panels have found bad faith under the Policy where a Respondent takes advantage of Internet users who mistype a Complainant’s URL address and are redirected to a Respondent’s website.
When Respondent’s predecessor, Andrea Heid, registered the disputed domain name, she knew of Complainant’s existence since the two companies were direct competitors. Heid’s registration with knowledge of Complainant’s mark supports a finding of bad faith registration.
Not only do the courts generally recognize that a disclaimer may not prevent a finding of likely confusion, but panels have found confusing similarity and bad faith in spite of such disclaimers.
If a potential customer sees an ad for Complainant’s website <utahweddings.com>, but mistakenly mistypes the URL address and is taken to <utahwedding.com>, she will learn from that site of the existence of <utahbrides.com> and may choose to visit that website then or later. In that event, the customer will have learned of Complainant’s competitor as a direct result of Complainant’s advertising. The disclaimer cannot undo this kind of harm, for the customer is now aware of Respondent’s website and may patronize that site out of convenience because the customer has been automatically taken there.
Paragraph 4(b)(i) of the Policy also applies in this case. Respondent’s stated intention not to sell the domain name for anything less than an unstated “fair market value” is evidence of bad faith.
Complainant has no rights to the domain name at issue, <utahwedding.com>, because that domain name merely describes the parties’ goods and services, namely, goods and services related to weddings in Utah. Well-established principles of trademark law hold that a business can not claim a monopoly on such generic, descriptive words, which must be available to all merchants to accurately describe their goods.
Respondent, together with its predecessor, has conducted business as UtahBrides.com since 1997, and operates a website located at <utahbrides.com> that Utah Business magazine has ranked as the number one on-line wedding planner for the past two years.
While Respondent also distributes a dvd featuring its vendors and produces a weekly television program on KJZZ, Respondent’s focus has always been on the promotion and development of its award-winning website.
To promote its website and generate traffic, Respondent has registered a number of domain names that describe its goods and services, including: <utahdestinationweddings.com>, <saltlakebrides.com>, <destinationweddingsinutah.com>, <utahweddingplanners.com>, <dvdweddingguide.com> and <brideaccess.com>. Users interested in planning a wedding in Utah who reach one of these domain names are redirected to Respondent’s website at <utahbrides.com>. When <utahwedding.com> became available for registration on June 19, 2001, Respondent registered the domain name to use as part of this marketing strategy.
Respondent did not register the domain name in order to divert users trying to reach Complainant’s website located at <utahweddings.com>. Prior to 2001, Complainant did not have an on-line focus. Rather, Complainant published a hard-copy wedding resource book under the name “Celebrations”. Sometime during the year 2001, Complainant changed its business name and the title of its book from “Celebrations” to “Utah Weddings”.
Because Utah Weddings is descriptive of the parties’ goods and services, however, according to well-established principles of trademark law, Complainant has rights if, and only if, Complainant successfully demonstrates the existence of secondary meaning associating the mark with Complainant at the time that the alleged infringing junior use began, namely on June 19, 2001. Complainant has submitted no evidence that demonstrates the existence of secondary meaning at that time.
The evidence submitted by Complainant relates to its advertising and promotion of Utah Weddings in the years 2002, 2003, and 2004. Such evidence is irrelevant. The evidence that Complainant has submitted, moreover, is fundamentally defective for multiple reasons. Numerous courts have held, for example, that secondary meaning can be proven only by properly conducted consumer surveys. Complainant’s evidence consists of its own self-serving statements and those of its business partners. Because Complainant has submitted no evidence from which this panel may conclude that consumers associated Utah Weddings with Complainant on June 19, 2001, Complainant’s claim to the domain name fails.
The terms Utah and Weddings are purely descriptive of the goods and services offered by Complainant and Respondent, as well as many other businesses, namely goods and services related to weddings in Utah. Such descriptive words are not entitled to trademark protection for two reasons, both of which are relevant here. First, such words accurately describe the goods and services of many merchants and thus, in the absence of secondary meaning, do not serve to distinguish goods and services as emanating from any particular seller. The second derives from the strong public policy against impoverishing the general vocabulary by allowing one seller to monopolize terms that fairly and accurately describe the products of many merchants.
Complainant’s mark is not registered—undoubtedly because Complainant is fully aware that Utah Weddings could never satisfy that standard. Nor is Utah Weddings inventive or bizarre as applied to goods and services related to weddings in Utah. As applied to weddings in Utah, the mark Utah Weddings is obviously descriptive.
The principle that a combined mark should be considered in its entirety does not apply where, as here, a domain name is a concatenation of a geographically descriptive term and another term. In such cases, the “geographic qualifier” is to be considered separately from the remainder of the domain name because that is the way the mark will be understood by readers. See AT&T Corp. v. WorldclassMedia.com, WIPO Case No. D2000-0553 (July 28, 2000).
The first use of UTAH WEDDINGS made by Complainant occurred when Complainant changed the name of its wedding resource book from “Celebrations” to “Utah Weddings” in 2001. Complainant has offered no evidence to substantiate its burden to prove that secondary meaning associating Utah Weddings with Complainant had developed prior to the date that Respondent registered <utahwedding.com> on June�19, 2001.
Complainant’s evidence of advertising expenditures and media exposure relates to the years 2002 through 2004. Evidence of secondary meaning established after the junior use first appeared, however, is simply irrelevant.
Use of a domain name that appropriately describes the nature or target of a respondent’s services is clearly a legitimate use. In fact, it is hard to imagine a use of <utahwedding.com> that would be more legitimate than use of the domain name to resolve to a website that offers goods and services related to planning a wedding in Utah.
Inclusion of descriptive words in domain names used to channel traffic to a business’ website is legitimate on many fronts, including the fact that inclusion of descriptive words in domain names positively affects the ranking of such domain names by website search engines.
While Complainant correctly notes that panels have found bad faith when a respondent has used a domain name to redirect visitors to a competitor’s website, Complainant omits to mention that such a finding is possible only when the complainant demonstrates that it has acquired exclusive rights in the mark at issue because of the fame or renown of the mark at issue. Complainant does not have exclusive rights in the words “Utah” or “Wedding” and has made no such showing.
Nor has Complainant provided any evidence that, in directing visitors to its website located at <utahbrides.com>, Respondent intends to divert users seeking Complainant’s website to its own. Respondent registered a number of domain names that are descriptive of its business in order to advance its ranking on search engines in response to queries involving the terms Utah, Bride and Wedding and as a mechanism to reach users seeking information about planning a wedding in Utah. This does not demonstrate bad faith, but savvy marketing.
An inference of bad faith based on the respondent’s prior knowledge of the complainant’s mark is warranted only with respect to “a select group of internationally famous marks.” Ford Motor Company and Land Rover Ltd. v. Kevin Knuhtsen, WIPO Case No. DBIZ2002-00183 (July 15, 2002).
Nor does the fact that Respondent has refused Complainant’s offers to purchase <utahwedding.com> for any amount less than its fair market value “show that its purpose in using the mark is primarily focused on obtaining consideration in excess of its out-of-pocket costs” (Complaint, at p. 19). Numerous panels have recognized that such a stance is equally indicative of a legitimate right to the disputed domain name.
The Complainant’s first task under the Policy is to show that the disputed domain name, <utahwedding.com> is “identical or confusingly similar” to the Complainant’s claimed trade or service mark, UTAHWEDDINGS.COM. The Complainant argues that the disputed domain name, even though it lacks the “s” of the Complainant’s claimed trademark, nonetheless is confusingly similar. The Complainant has documented this point using prior Policy decisions. The Complainant cites, inter alia, Universal City Studios, Inc. v. HarperStephens, WIPO Case No. D2000-0716 (September 5, 2000) where the panel found that deleting an “s” did not avoid a finding of confusing similarity. There was an identical situation in Hershey Foods Corporation and Hershey Chocolate & Confectionery Corporation v. DRP Services (Hersheychocolateworld-Com-Dom), WIPO Case No. D2003-0841 (December�1,�2003).
The Panel agrees with the Complainant and its ample sampling of Policy decisions that the lack of an “s” in the disputed domain name <utahwedding.com> does not save it from being nearly identical, and certainly confusingly similar, to the Complainant’s business known as UtahWeddings.com. The Respondent does not dispute this point.
The Complainant acknowledges that it does not have a registered trademark for UtahWeddings.com. However, the Complainant asserts that it has been using the disputed domain name since 2001, to conduct its business of offering advertising for various wedding services companies such as florists and photographers, and for offering its own other, unspecified services. Based on this use of several years, along with alleged use by the previous domain name owner of <utahweddings.com> from 1997,ntil the domain name was sold to the Complainant at the end of 1999, the Complainant claims to have acquired common law trademark rights.
The Complainant initially attempts to argue that its putative trademark, UTAHWEDDINGS.COM, is distinctive if one considers the whole of the mark as opposed to its component parts, which are admittedly geographic and descriptive. However, the Panel agrees with the Respondent: whether treated as a whole or as separate words, the Complainant’s mark is descriptive and ineluctably means weddings in Utah arranged via the Internet.
Complainant secondarily acknowledges that its mark UTAHWEDDINGS.COM, used to offer wedding services in the State of Utah via the Internet, may be found to be descriptive. However, the Complainant endeavors to show in some detail that it has advertised on billboards and on television, and that its website is visited hundreds of thousands of times per year. The Complainant also claims, but does not attempt to prove, radio advertising (Complaint Exhibits F-H).
The Complainant has also exhibited some 20 affidavits (Complaint Exhibits I-O) purporting to show that the Complainant’s business customers such as florists and photographers believe the mark UTAHWEDDINGS.COM has acquired good will with the public. Thus, the Complainant argues, even if the mark UTAHWEDDINGS.COM is descriptive, it has achieved secondary meaning with the public and now denotes the Complainant’s wedding services company. This should equate to common law trademark rights. (Among the many cases the Complainant cites in this regard are: Realmark Cape Harbour L.L.C. v. Lawrence S. Lewis, WIPO Case No. D2000-1435 (December 11, 2000); North Shore Towers Apartments, Inc. v. Erik Kroll, NAF Case No. 109030 (July 2, 2002); and Salem Five Cents Savings Bank v. Direct Federal Credit Union, NAF Case No. FA103058 (February 15, 2002).
The Respondent counters by arguing that the disputed domain name, <utahwedding.com>, is descriptive if not generic, just like the Complainant’s mark UTAHWEDDINGS.COM used for its wedding services business in the State of Utah. The name of the State of Utah is used in its geographic sense and can not be a protected part of the trademark. Moreover, according to the Respondent, even if it is conceded that UTAHWEDDINGS.COM is descriptive and not generic, the Complainant still has not been using it long enough – end of 2001, through the present – to endow the mark with secondary meaning. The fact that the Complainant has not yet applied for a registered trademark in the United States indicates the Complainant is well aware it has not acquired common law trademark rights in UTAHWEDDINGS.COM. Like the Complainant, the Respondent has submitted some affidavits from local Salt Lake City wedding services providers that contest the secondary meaning of the Complainant’s mark (Response Exhibits E-H).
The Respondent even goes so far as to insist that the latest appropriate date for judging whether the mark UTAHWEDDINGS.COM had acquired secondary meaning is the date the disputed domain name was registered, i.e., June 19, 2001. This automatically would lead to a finding that the mark had not acquired secondary meaning because the Complainant apparently did not begin using it until around that time or even the end of 2001. The Complainant’s predecessor apparently made no use of the mark between 1997 and the end of 1999. However, the Panel does not agree with the Respondent’s argument on this point, and notes that Policy paragraph 3(a)(iii) does not say the Complainant’s trademark rights have to be acquired at a specific point in time before the Complaint is filed. (See, for example, Digital Vision, Ltd. v. Advanced Chemill Systems, WIPO Case No. D2001-0827, (September 23, 2001); and also Madrid 2012, S.A. v. Scott Martin-MadriMan Websites, WIPO Case No. D2003-0598, (October�8,�2003)).
As to whether the Complainant had acquired common law trademark rights in the disputed domain name by the time the Complaint was filed, the Panel finds the Complainant’s proof is insufficient. The main problem is that the mark UTAHWEDDINGS.COM used to sell wedding services in the State of Utah via the Internet is utterly descriptive. The Panel has difficulty imagining how the public would come to identify this mark with just the Complainant in the relevant market since the end of 2001 because, as the Respondent tellingly points out, numerous other websites with highly similar or nearly identical names are contemporaneously offering similar wedding services in the State of Utah. (Response Exhibit B lists <utahweddings.info>, <weddingsutah.com>, <utahweddings.net> and many others).
Aside from the pertinent records of billboards, television advertising and Internet hits, the Complainant has offered some 19 affidavits from its business clients. They are, of course, interested parties-- as are the affiants of the Respondent-- who state that they place advertising on the Complainant’s website at “www.utahweddings.com” and that the site brings them good business. However, in the Panel’s view, this is not enough to show that the public has come to associate the Complainant and its services with the mark UTAHWEDDINGS.COM in the relatively short amount of time the Complainant has been using this mark. Even though the Complainant claims that it acquired an ongoing business with the name UtahWeddings.com at the end of 1999, and that the seller had been using the name in the Complainant’s line of business since 1997, the Complainant has produced no proof about business use of the putative mark before late 2001.
In selecting the quintessentially descriptive name UtahWeddings.com for its wedding business in the State of Utah, the Complainant apparently was more interested in attracting Internet traffic than in coming up with a distinctive name. Thus, while the Complainant has a descriptive mark that attracts a large volume of casual search engine inquiries, the amount of time and effort it would take to endow this mark with secondary meaning is problematic.
The Panel finds the Complainant has failed to carry its burden of proof under Policy, paragraph 4(a)(i) to show that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights. The Panel notes that its decision under paragraph 4(a)(i) is based on the information available in the case file, and that court proceedings can be more appropriate for deciding complex questions of secondary meaning like those raised in this case. Courts are also an appropriate forum to raise issues, such as unfair competition, that are outside the scope of the Policy.
Since the Policy requires that the Complainant prevail under each paragraph of the Policy at 4(a)(i-iii), the Panel does not need to proceed to a discussion of rights or legitimate interests or bad faith.

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Oral argument in the landmark freelance writers' rights case, Reed Elsevier v. Muchnick, will be heard at the Supreme Court of the United States on Wednesday, October 7, at 11 a.m. Eastern time. The transcript of the session should be published within hours at http://www.supremecourtus.gov/oral_arguments/argument_transcripts.html.
The question before the Court is: "Does 17 U.S.C. Sec. 411(a) restrict the subject matter jurisdiction of the federal courts over copyright infringement actions?"
In 2007, the Second Circuit Court of Appeals, in an unprompted or sua sponte ruling, answered that question in the affirmative, thus invalidating a global settlement of a copyright dispute between freelance writers and periodical publishers and their electronic database licensees. The settlement was in a consolidation of class actions called In re Literary Works in Electronic Databases Copyright Litigation. That settlement, in turn, was an offshoot of the 2001 Supreme Court case Tasini v. New York Times. A slate of objectors had opposed the approval of the settlement in 2005 by the U.S. District Court in the Southern District of New York, and appealed to the Second Circuit. The Supreme Court this year renamed the case Reed Elsevier v. Muchnick.
Wednesday's Supreme Court argument time has been allocated to Charles Sims of Proskauer Rose (counsel for lead petitioner Reed Elsevier); U.S. Solicitor General Elena Kagan (arguing the government's position, which also advocates for reversal of the Second Circuit's jurisdiction ruling); and Deborah Jones Merritt (appointed by the Supreme Court to defend the Second Circuit decision). The attorneys for the objector-respondents -- Charles Chalmers and the Stanford Law School Supreme Court Litigation Clinic, directed by Pamela Karlan and Jeffrey Fisher -- will not be making oral arguments. Nor will the attorneys for the named plaintiffs.
High Court watchers will be studying not only whether the justices overturn the Second Circuit, but also how they arrive at their decision. The grounds for the ruling will have a major impact on whether this settlement could be saved and how those efforts would proceed. The highly publicized Google Books settlement, which is currently delayed by objections at the district court level, also could be affected by how Reed Elsevier v. Muchnick plays out.
Congratulations to The Washington Monthly on Two Decades of Willful Copyright Infringement!
"Reed Elsevier v. Muchnick" Is About the Hijacking of "Tasini v. Times"

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Respondent Farmers Mut. Canal Co.
In a suit to determine the relative rights of the parties to divert water for irrigation from a stream in Nebraska, the state court decided that superiority of the defendant's appropriation had been conclusively established against the plaintiff, consistently with due process, in proceedings before a state board, and, further and independently, that the plaintiff, having without objection stood by and permitted the defendant to go to enormous expense in the construction of a canal and diverting works, was estopped to question the validity of the defendant's appropriation on which it relied. The ground of estoppel being distinct, nonfederal, and fairly supported by the facts, held that this Court had no jurisdiction to review, although the state board's adjudication was challenged under the Fourteenth Amendment.
When the judgment of a state court is placed upon two grounds, one involving a federal question and the other not, the jurisdiction of this Court depends upon whether the nonfederal ground is independent of the federal ground and also broad enough to sustain the judgment; if so, the judgment does not depend upon the decision of any federal question, and this Court has no power to disturb it.
Where the nonfederal is so interwoven with the federal ground as not to be independent, or, standing alone, is not of sufficient breadth to sustain the judgment, the jurisdiction of this Court attaches.
Where the nonfederal ground is so certainly unfounded that it properly may be regarded as essentially arbitrary, or a mere device to prevent a review of the decision upon the federal question, the judgment rests upon the latter, and may be reviewed here.
But where the nonfederal ground has fair support, this Court may not inquire whether the decision upon it is right or wrong.
Questions of state law do not engage the due process clause of the Fourteenth Amendment.
Writ of error to review 92 Neb. 121 dismissed.
In form, this was a suit to determine the relative rights of the parties to divert the waters of the North Platte River, in western Nebraska, for purposes of irrigation, but the only controversy disclosed was over the extent and priority of the right of the Farmers Mutual Canal Company, the principal defendant. Another defendant, the Tri-State Land Company, was interested as a stockholder of the canal company, and need be noticed only in another relation.
been lost by nonuser. But the Canal Company asserted the validity of its entire claim, denied any loss by lack of diligence of nonuser, and contended, among other things, that the State Board of Irrigation had sustained its entire claim in 1897, when the board was engaged under the state law (Laws 1895, c. 69, §§ 16-27) in adjudicating claims to the waters of the North Platte River, and that the other parties were estopped from questioning its right by reason of their attitude and conduct after 1904, when its predecessor in interest was completing the canal and diverting works at enormous cost. The other parties denied that there was any ground for an estoppel, and insisted that, consistently with the due process and equal protection provisions of the Fourteenth Amendment, the claimed adjudication by the State Board of Irrigation could not be treated as in any way binding upon them, because (a) the law under which the board acted made no provision for notice, and (b) the board had proceeded without notice and without affording an opportunity to be heard. Other contentions were advanced, but no purpose would be served by stating them here.
It was conceded that, during portions of the irrigation season, the flow of the stream had not been sufficient to satisfy all of these claims, and that the State Board of Irrigation recently had recognized the Canal Company's claim by refusing to restrict its diversion in time of low water to less than 1,142 6/7 second feet.
The cause was submitted on the pleadings and on a "stipulation of facts" covering 84 printed pages and containing much that was purely evidential, and not in the nature of a statement of ultimate facts.
a foreclosure suit, and other litigation, the work of construction was practically suspended from 1895 to 1905; that the work was actively resumed in 1905, and continued with vigor until October, 1910, when it was completed; that the cost of the work from 1905 to 1910 was in excess of $1,500,000, and more than $950,000 of this was expended before August, 1909, when this suit was begun; that the work done after 1905 included a needle dam across the river, costing $27,869.20, an additional headgate of concrete and reinforced steel, costing $52,113.20, and a wastegate or spillway of similar construction, costing $42,253.46, and that the number of acres actually reclaimed and irrigated by the canal was being rapidly increased, being less than 2,000 acres in 1905, and 20,000 acres in 1910.
The trial court held that the canal company's right, although prior in time, did not extend to more than 28.57 second feet of the water, and entered a decree to that effect. An injunction was also granted restraining the company from taking more than was thus accorded to it. In the supreme court, the decree was reversed and the suit was dismissed on the merits so far as it concerned the Canal Company and the Tri-State Land Company, and without prejudice in respect of any controversy between the other parties. 92 Neb. 121.
appealed from to the district court; held that the right to due notice and a reasonable opportunity to be heard was implied in the act, and reaffirmed its decision in Farmers Canal Co. v. Frank, 72 Neb. 136, made in 1904, that the board's action upon the Canal Company's claim amounted to an unconditional adjudication of the extent and priority of the claim, and that a leading purpose of the Act of 1895 was to create a state board "whose records would evidence the priorities of title to the appropriation of water in such a public manner that no one might be misled."
in the records of the state board, was shown in a list of established claims regularly appearing in the biennial reports of the board which the state required to be made and published, and was recorded in 1905 in the office of the county clerk of the county where the appropriation was made.
In these circumstances, the court concluded that the contention that the board had proceeded without adequate notice to the parties, or without affording them a reasonable opportunity to be heard, had no real foundation. It also concluded that, in view of the nature of the enterprise, the large expenditures required, and the circumstances surrounding the temporary suspension of the work, the contention that part of the Canal Company's claim had been lost through lack of diligence or nonuser was highly inequitable and untenable.
"Under these circumstances, and having this knowledge, it would be contrary to the plainest principles of equity if plaintiffs might stand silently by, seeing the defendants engage in such a monumental work under claim of right, and utter no word of warning as to their own claims, which, if eventually established, would deprive defendants of the water which the canal was built to carry, condemn the whole enterprise to failure, and result in the absolute loss of the money expended. It would be manifestly inequitable and unjust to allow the plaintiffs, after the works were practically finished and the money expended, to insist upon claims which, had they been asserted in good time, would at least have put the defendants upon their guard and have given them cause to pause and hesitate in their expenditures until the validity of their title had been determined."
Concisely stated, the assignments of error complain that the supreme court infringed the due process and equal protection provisions of the Fourteenth Amendment, first by giving decisive effect to the state board's decision, instead of holding that it was made without lawful notice or opportunity to be heard, and therefore was void, and second by misconceiving or misapplying the statute and common law of the state in disposing of other questions.
Leathe v. Thomas, supra; Arkansas Southern R. Co. v. German National Bank, 207 U. S. 270 , 207 U. S. 275 .
It does not, as we think, admit of doubt that the estoppel in pais is made an independent ground of the judgment. Instead of being interwoven with the validity of the state board's adjudication, which is the other ground, it is distinct from it, and is so treated in the court's opinion. In taking up the question of estoppel, as also in concluding its discussion of the subject, the court plainly shows that it is then indulging an assumption that the other ground is not tenable. True, the board's proceedings and adjudication are referred to as having some bearing upon the good faith of the Canal Company, and upon the knowledge which the other parties had of that company's claim, but in this the court neither departs from the assumption indulged nor confuses the two grounds of the judgment. Even if invalid, the board's proceedings and adjudication could well have a real bearing upon the matters indicated.
In view of the facts before recited, we think it cannot be said that the ruling upon the question of estoppel is without fair support, or so unfounded as to be essentially arbitrary, or merely a device to prevent a review of the other ground of the judgment. We therefore are not at liberty to inquire whether the ruling is right or wrong. And it may be well to add that the question did not originate with the court. It was presented by the pleadings, was in the minds of the parties when the stipulation was made, and was dealt with by counsel and court as a matter of obvious importance.
clauses of the Fourteenth Amendment, requires but brief notice. The due process clause does not take up the laws of the several states and make all questions pertaining to them constitutional questions, nor does it enable this Court to revise the decisions of the state courts upon questions of state law. Sayward v. Denny, 158 U. S. 180 , 158 U. S. 186 ; Central Land Co. v. Laidley, 159 U. S. 103 , 159 U. S. 112 ; Castillo v. McConnico, 168 U. S. 674 , 168 U. S. 683 -684. The questions presented, other than those relating to the validity of the state board's adjudication, all turned exclusively upon the law of the state, and the state court's decision of them is controlling. Preston v. Chicago, 226 U. S. 447 ; St. Louis & Kansas City Land Co. v. Kansas City, 241 U. S. 419 , 241 U. S. 427 ; Old Colony Trust Co. v. Omaha, 230 U. S. 100 , 230 U. S. 116 . The reference to the equal protection clause evidently is inadvertent, for there is no claim of unwarranted or arbitrary discrimination.
* See also Sherman v. Grinnell, 144 U. S. 198 , 144 U. S. 202 ; Gillis v. Stinchfield, 159 U. S. 658 , 159 U. S. 660 ; Hale v. Lewis, 181 U. S. 473 , 181 U. S. 479 , 181 U. S. 480 .

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Justia › US Law › Case Law › Nebraska Case Law › Nebraska Supreme Court Decisions › 2014 › Wisniewski v. Heartland Towing, Inc.
Attorney represented Plaintiff in a negligence lawsuit against Defendant. After a jury trial, the district court entered judgment in favor of Plaintiff. Attorney subsequently made an oral motion for payment of attorney fees and costs in the underlying negligence lawsuit. The district court granted the motion. The Supreme Court vacated the district court’s order granting Attorney’s oral motion and dismissed Plaintiff’s appeal because (1) Attorney never filed a petition in intervention, and therefore, at the time of his oral motion, Attorney was not a party to the suit; (2) furthermore, Attorney stated at the time he made his motion that he no longer represented Plaintiff; and (3) therefore, the district court lacked subject matter jurisdiction to decide Attorney’s oral motion for payment.
Nebraska Advance Sheets 548 287 NEBRASKA REPORTS in concluding that the general verdict rule did not bar it from overturning the jury s verdict. CONCLUSION Although the district court s instructions did not explicitly charge the jury on BNSF s duty of care, they implicitly recog nized BNSF s duty by requiring the jury to find that BNSF was negligent if it found that BNSF had failed to provide Kuhnel with a reasonably safe place to work. We therefore find that the Court of Appeals erred in concluding that the instructions constituted plain error. Because our finding that the instruc tions were not plainly erroneous is dispositive, we need not analyze BNSF s remaining assignment of error. We reverse the decision of the Court of Appeals. R eversed. Victoria A. Wisniewski, appellant, v. Heartland Towing, Inc., et al., defendants and third-party plaintiffs, appellees, and Lyman-R ichey Corporation, doing business as R eady M ixed Concrete Company, a Delaware corporation, et al., third -party defendants, appellees. ___ N.W.2d ___ Filed February 28, 2014. No. S-13-171. 1. Judgments: Jurisdiction: Appeal and Error. When a jurisdictional question does not involve a factual dispute, determination of a jurisdictional issue is a matter of law which requires an appellate court to reach a conclusion independent from the trial court s decision. Appeal from the District Court for Douglas County: W. Mark Ashford, Judge. Order vacated, and appeal dismissed. Robert S. Sherrets and James D. Sherrets, of Sherrets, Bruno & Vogt, L.L.C., for appellant. Christopher P. Welsh, of Welsh & Welsh, P.C., L.L.O., pro se. Heavican, C.J., Wright, Connolly, Stephan, McCormack, and Cassel, JJ. Nebraska Advance Sheets WISNIEWSKI v. HEARTLAND TOWING 549 Cite as 287 Neb. 548 Heavican, C.J. INTRODUCTION Christopher P. Welsh of Welsh & Welsh, P.C., L.L.O., rep resented appellant Veronica A. Wisniewski in a negligence suit against Heartland Towing, Inc. After judgment was entered against Heartland Towing, Welsh orally motioned to be paid attorney fees and costs from the judgment. The district court granted the motion. Wisniewski appeals. We dismiss. BACKGROUND Wisniewski was injured in a multiple vehicle accident on June 9, 2006. Wisniewski braked to avoid hitting another vehicle and was struck from behind by a tow truck operated by Billy Pipkin and owned by Heartland Towing. On June 5, 2007, Wisniewski retained Welsh to represent her in a lawsuit against Pipkin and Heartland Towing. Wisniewski and Welsh entered into a contingency fee contract. After a jury trial, the court entered a judgment of $35,006.23 in favor of Wisniewski on June 6, 2012. On October 12, 2012, Wisniewski, represented by new coun sel, filed a legal malpractice suit against Welsh alleging that Welsh failed to adequately represent Wisniewski s claims aris ing out of the June 2006 automobile accident. On January 23, 2013, Welsh made an oral motion for pay ment of attorney fees and costs in this, the underlying negli gence lawsuit. The district court granted the motion and autho rized the clerk of the district court to distribute $11,085.29 in attorney fees and $3,311.55 in costs to Welsh from the judgment. Wisniewski filed a motion to alter or amend the order. The district court denied the motion and set a supersedeas bond. Wisniewski appeals from the order denying her motion to alter or amend. Welsh responds as Movant-Appellee. ASSIGNMENTS OF ERROR Wisniewski assigns the following errors of the district court: (1) finding it had jurisdiction to hear Welsh s motion, (2) granting Welsh s motion without an evidentiary hear ing, (3) finding Welsh was entitled to attorney fees, and Nebraska Advance Sheets 550 287 NEBRASKA REPORTS (4) denying Wisniewski s motion to alter or amend and stay proceedings. STANDARD OF REVIEW  When a jurisdictional question does not involve a factual dispute, determination of a jurisdictional issue is a matter of law which requires an appellate court to reach a conclusion independent from the trial court s decision.1 ANALYSIS In her first assignment of error, Wisniewski asserts that the district court erred in finding it had jurisdiction to hear Welsh s motion for attorney fees and costs. Wisniewski argues that the motion was an effort to enforce a contract and that, as such, Welsh was required to file a separate lawsuit against Wisniewski. We reject this argument. Neb. Rev. Stat. § 7-108 (Reissue 2012) states: An attorney has a lien for a general balance of compen sation upon any papers of his client which have come into his possession in the course of his professional employ ment; and upon money in his hands belonging to his cli ent, and in the hands of the adverse party in an action or proceeding in which the attorney was employed from the time of giving notice of the lien to that party. We have repeatedly stated an attorney may file a petition in intervention in the original action to enforce an attorney s lien.2 Recently, in Meister v. Meister,3 we reiterated that interven tion is the proper method of enforcing an attorney s lien in the original action and explained that equity excuses the usual requirement of intervening before trial as required by Neb. Rev. Stat. § 25-328 (Reissue 2008). We also noted in Meister that an attorney s failure to intervene before arguing his lien did not destroy the attorney s entitlement to the lien.4 1 2 3 4 See Holste v. Burlington Northern RR. Co., 256 Neb. 713, 592 N.W.2d 894 (1999). See, e.g., Barber v. Barber, 207 Neb. 101, 296 N.W.2d 463 (1980). Meister v. Meister, 274 Neb. 705, 742 N.W.2d 746 (2007). Id. Nebraska Advance Sheets BRUNO v. METROPOLITAN UTILITIES DIST. 551 Cite as 287 Neb. 551 In this case, Welsh never filed a petition in intervention. Although Welsh claims to have filed the equivalent in a writ ten motion, no such motion appears in the record before this court. At the time of his oral motion, Welsh was not a party to the suit. Furthermore, Welsh stated at the hearing that he no longer represented Wisniewski. Lacking subject matter juris diction, the court erred in deciding Welsh s oral motion for payment. We have stated that a ruling made in the absence of subject matter jurisdiction is a nullity.5 We therefore vacate the district court s order granting Welsh s oral motion and dismiss the appeal. Order vacated, and appeal dismissed. Miller-Lerman, J., participating on briefs. 5 Spady v. Spady, 284 Neb. 885, 824 N.W.2d 366 (2012); Hunt v. Trackwell, 262 Neb. 688, 635 N.W.2d 106 (2001); In re Estate of Andersen, 253 Neb. 748, 572 N.W.2d 93 (1998); Billups v. Scott, 253 Neb. 287, 571 N.W.2d 603 (1997). Jason M. Bruno, appellant, v. Metropolitan Utilities District et al., appellees, and Northern Natural Gas Company, intervenor-appellee. ___ N.W.2d ___ Filed February 28, 2014. No. S-13-212. 1. Motions to Dismiss: Appeal and Error. A district court s grant of a motion to dismiss is reviewed de novo. 2. Motions to Dismiss: Pleadings: Appeal and Error. When reviewing an order dismissing a complaint, the appellate court accepts as true all facts which are well pled and the proper and reasonable inferences of law and fact which may be drawn therefrom, but not the plaintiff s conclusion. 3. Statutes: Appeal and Error. To the extent an appeal calls for statutory interpre tation or presents questions of law, an appellate court must reach an independent conclusion irrespective of the determination made by the court below. 4. Contracts: Legislature. Competitive bids and public letting are unquestionably a matter of legislative prerogative. 5. Statutes: Appeal and Error. The language of a statute is to be given its plain and ordinary meaning, and an appellate court will not resort to interpreta tion to ascertain the meaning of statutory words which are plain, direct, and unambiguous.


Section 1(b) of the Trademark Act, 15 U.S.C. §1051(b), provides that an applicant may file an application based on a bona fide intention to use a mark in commerce "under circumstances showing the good faith of such person."
A verified statement of the applicant's bona fide intention to use the mark in commerce must be included in intent-to-use ("ITU") applications under §1(b), and in applications under §§44 and 66(a), 15 U.S.C. §§1126 and 1141f(a). See TMEP §1904.01(c) regarding the requirement for a declaration of the applicant's bona fide intention to use the mark in commerce in a §66(a) application.
If the verification is not filed with the initial application, the verified statement must also allege that the applicant has had a bona fide intention to use the mark in commerce since the filing date of the application. 37 C.F.R. §§2.34(a)(2), 2.34(a)(3)(i) and 2.34(a)(4)(ii). See TMEP §§804 et seq. regarding verifications.
A verified statement of the applicant's continued bona fide intention to use the mark in commerce must also be included in a request for an extension of time to file a statement of use. 15 U.S.C. §1051(d)(2); 37 C.F.R. §§2.89(a)(3) and (b)(3); TMEP §§1108.02 and 1108.02(e).
Reasonable variations in the wording of the statement may be acceptable. For example, the applicant may state that it has "a bona fide intention to use in commerce the mark on or in connection with...," or may use the words "good faith" instead of "bona fide." However, the wording "in commerce" is required and cannot be varied. In re Custom Technologies Inc., 24 USPQ2d 1712 (Comm'r Pats. 1991); In re B.E.L.-Tronics Ltd., 24 USPQ2d 1397 (Comm'r Pats. 1992).
The USPTO will not evaluate the good faith of an applicant in the ex parte examination of applications. Generally, the applicant's sworn statement of a bona fide intention to use the mark in commerce will be sufficient evidence of good faith in the ex parte context. Consideration of issues related to good faith may arise in an inter partes proceeding, but the USPTO will not make an inquiry in an ex parte proceeding unless evidence of record clearly indicates that the applicant does not have a bona fide intention to use the mark in commerce.
An intent-to-use application does not need to meet the requirements of a use-based application.
In re Promo Ink, Serial No. 76541018, (TTAB 2006).
It is also clear that the examining attorney is not requiring applicant's intent-to-use application to meet the requirements of a use-based application.
An applicant may file an intent-to-use applicant, even if they are actually using the mark.
An applicant who is actually using its mark may, for various reasons, choose to file an intent-to-use application. McCarthy on Trademarks and Unfair Competition (4th ed. 2005) § 19:13.
An intent-to-use applicant may begin using its mark during the examination of the application.
In addition, an intent-to-use applicant may begin using its mark during the examination of the application.
If an intent-to-use application is filed, the applicant is not required to meet the requirements of use-based applications during the initial examination of the application.
An intent-to-use applicant may tack on analogous use to its application.
FOOTNOTE 15 "Even an intent-to-use applicant may tack on analogous use to its application. Dyneer Corp. v. Automotive Products plc, 37 USPQ2d 1251, 1256-57 (TTAB 1995) ("We note that our modified test contemplates the ‘tacking' of applicant's use analogous to trademark use, and any continuing association of the mark with applicant and its goods which may be shown to have resulted therefrom, onto the constructive use date which applicant would obtain through issuance of a registration for its mark. While this is an issue of first impression for the Board, we believe that an intent-to-use applicant, with a bona fide intent to make use of the applied for mark in commerce, should be permitted to engage in such tacking, if circumstances show that the party has had a continuing intent to cultivate an association of the mark with itself and its goods or services and that such an association was created")."
Filing an intent-to-use application does not limit the examining attorney's evidentiary options, nor does it shield an applicant from producing evidence that it may have in its possession.
However, the fact that applicant has filed an intent-to-use application does not limit the examining attorney's evidentiary options, nor does it shield an applicant from producing evidence that it may have in its possession.
Trademark Rule 2.61(b) (37 CFR 2.61(b)) provides that: "The examiner may require the applicant to furnish such information and exhibits as may be reasonably necessary to the proper examination of the application."
This provision is equally applicable to intent-to-use applicants. TMEP § 814 (4th ed. April 2005) ("The examining attorney may request literature, exhibits, and general information concerning circumstances surrounding the mark and, if applicable, its use or intended use") (emphasis added). See In re SPX Corp., 63 USPQ2d 1592, 1597 (TTAB 2002) (Board affirmed a refusal based on an intent-to-use applicant's failure to respond to the examining attorney's requirement for information); In re DTI Partnership LLP, 67 USPQ2d 1699, 1700 n.2 (TTAB 2003) ("Nor did [the intent-to-use] applicant comply with, or even acknowledge, the Trademark Examining Attorney's specific requirements for submission of advertising or promotional materials and for a description of the nature, purpose and channels of trade of the goods").
If the examining attorney had made this requirement in this case, applicant would have been required to produce, if it existed, evidence of the type that the examining attorney's Internet search revealed.
The evidence was found as a result of an Internet search and it was, therefore, properly submitted by the examining attorney. TMEP § 701.01(b) (4th ed. April 2005) ("Articles downloaded from the Internet are admissible as evidence of information available to the general public, and of the way in which a term is being used by the public").
Applicant's objection is that the examining attorney is producing a specimen for applicant, which he clearly is not doing. The examining attorney is using the printouts as evidence that the mark is merely descriptive of applicant's services. Accord In re Remacle, 66 USPQ2d 1222, 1224 n.5 (TTAB 2002) (Particularly in the case before us, involving sophisticated medical technology, it is reasonable to consider a relevant article from an Internet web site, in English, about medical research in another country, Great Britain in this case, because that research is likely to be of interest worldwide regardless of its country of origin").
The examining attorney could have introduced evidence of other parties' use of the term that he discovered on the Internet, and he is also permitted to introduce evidence that applicant's own literature supports the descriptive nature of the term.
To establish priority an intent-to-use applicant is entitled to rely upon actual use, or use analogous to trademark use, prior to the constructive use date of the intent-to-use application.
Fair Indigo LLC v. Style Conscience, Opp. No. 91175571 (TTAB 2007).
Just as an applicant in a use-based application can rely, for purposes of priority in a proceeding such as this, upon use (including use analogous to trademark use) prior to the filing date of its application, or even prior to its claimed use dates, an intent-to-use applicant is entitled to rely upon actual use, or use analogous to trademark use, prior to the constructive use date of the intent-to-use application. See Dyneer Corp. v. Automotive Products plc, 37 USPQ2d 1251 (TTAB 1995). (Intent-to-use applicant permitted to tack use analogous to trademark use to its constructive use date so long as applicant had continuing intent to cultivate association of mark with itself and its goods or services up until the filing date).
A party may establish priority by use analogous to trademark use regardless of how the adverse party seeks to establish priority.
This principle applies with equal force to a plaintiff in an opposition proceeding. Thus, by logical extension, a party may establish priority by use analogous to trademark use regardless of how the adverse party seeks to establish priority.
The earliest date of first use upon which applicant can rely in the absence of testimony or evidence is the filing date of its application.
Chicago Bears Football Club, Inc. and NFL Properties LLC v. 12TH Man/Tennessee LLC, (TTAB 2007).
Applicant has not used its mark, 12TH BEAR. See Ringelstein dep. at 34 ("Q. Have you used the 12TH Bear designation on any product" A. No, sir – no, ma'am. Excuse me. Not on any product"). As a result, applicant must rely on its application's filing date (August 29, 2000) as its constructive use date. Zirco Corp. v. American Telephone and Telegraph Co., 21 USPQ2d 1542, 1544 (TTAB 1991) ("[T]here can be no doubt but that the right to rely upon the constructive use date comes into existence with the filing of the intent-to-use application and that an intent-to-use applicant can rely upon this date in an opposition brought by a third party asserting common law rights"). See also Intersat Corp. v. International Telecommunications Satellite Organization, 226 USPQ 154, 156 n. 5 (TTAB 1985) ("The earliest date of first use upon which Intelsat can rely in the absence of testimony or evidence is the filing date of its application").
An applicant can establish acquired distinctiveness in an intent-to-use application where it can show that the "same mark" acquired distinctiveness for related goods or services, and that this acquired distinctiveness will transfer to the goods or services specified in the application when the mark is used in connection with them.
Kellogg Company v. General Mills, Inc., Opposition No. 91125884, (TTAB 2007).
"[A]n applicant can establish acquired distinctiveness in an intent-to-use application where it can show that [the] "same mark" acquired distinctiveness for related goods or services, and that this acquired distinctiveness will transfer to the goods or services specified in the application when the mark is used in connection with them. See TMEP § 1219.09(a) (1997) (listing cases)."
The legislative history of the Trademark Law Revision Act of 1988 (TLRA) demonstrates that achieving greater certainty in the acquisition of trademark rights by providing clear notice to third parties was a driving force behind the changes in the provisions of use and constructive use.
The constructive use provision of §7(c) of the Lanham Act concerning intent-to-use applications.
It is readily apparent that the constructive use provision of §7(c) of the Lanham Act, as amended, was intended to foster the filing of intent-to-use applications. By according conditional rights to those who publicly disclose their marks, constructive use encourages the early filing of applications and the searching of trademark records prior to the adoption of and investment in new marks. Constructive use provides an intent-to-use applicant a superior right over anyone adopting a mark after applicant's filing date (providing the applicant's mark is ultimately used and registered) and to prevent a third party from acquiring common law rights in a mark after the filing date of the intent-to-use application. Under this intent to use system, "token use" became unnecessary and inappropriate.
A mere token sale or shipment of the goods does not constitute "use" under the Trademark Act.
Thus, a mere token sale or shipment of the goods does not constitute "use" under the Trademark Act. See Paramount Pictures Corp. v. White, 31 USPQ2d 1768, 1774 (TTAB 1994) [noting that the purpose of the Trademark Law Revision Act of 1988 was to eliminate "token use" as a basis for registration, and that the new, stricter standard contemplates instead commercial use of the type common to the particular industry in question]. H.R. Rep. No. 100-515, 100th Congress, 2d Sess.
Case Finding: Documentary evidence of two sales transactions to the same purchaser, approximately three months apart, fails to support a finding of prior and continuous use of the mark and by logical extension, opposer cannot rely on a predecessor in interest for asserting priority.
Even if issues may exist as to whether or not Chelmer Valve owned, and had the authority to assign, the GOLD LION mark (either as a distributor or manufacturer) to opposer, such issues are not material in this case. The documentary evidence of two sales transactions to the same purchaser, approximately three months apart, fails to support a finding of prior and continuous use of the GOLD LION mark by Chelmer Valve. By logical extension, opposer cannot rely on Chelmer Valve as a predecessor in interest for asserting priority over applicant.
In the case of an intent-to-use application, the owner of the famous mark must prove that its mark became famous prior to the filing date of the applicant's application.
7-Eleven, Inc. v. Lawrence I. Wechsler, Opposition No. 91117739, (TTAB 2007).
FOOTNOTE 64 "In the case of an intent-to-use application, the owner of the famous mark must prove that its mark became famous prior to the filing date of the applicant's application. Toro Co. v. ToroHead Inc., supra, 61 USPQ2d at 1180-1174…."
The Director shall keep a register of all marks communicated to him by the international bureaus provided for by the conventions for the protection of industrial property, trademarks, trade and commercial names, and the repression of unfair competition to which the United States is or may become a party, and upon the payment of the fees required by such conventions and the fees required in this chapter may place the marks so communicated upon such register. This register shall show a facsimile of the mark or trade or commercial name; the name, citizenship, and address of the registrant; the number, date, and place of the first registration of the mark, including the dates on which application for such registration was filed and granted and the term of such registration; a list of goods or services to which the mark is applied as shown by the registration in the country of origin, and such other data as may be useful concerning the mark. This register shall be a continuation of the register provided in section 1(a) of the Act of March 19, 1920.
Any person whose country of origin is a party to any convention or treaty relating to trademarks, trade or commercial names, or the repression of unfair competition, to which the United States is also a party, or extends reciprocal rights to nationals of the United States by law, shall be entitled to the benefits of this section under the conditions expressed herein to the extent necessary to give effect to any provision of such convention, treaty or reciprocal law, in addition to the rights to which any owner of a mark is otherwise entitled by this chapter.
No registration of a mark in the United States by a person described in subsection (b) of this section shall be granted until such mark has been registered in the country of origin of the applicant, unless the applicant alleges use in commerce.
For the purposes of this section, the country of origin of the applicant is the country in which he has a bona fide and effective industrial or commercial establishment, or if he has not such an establishment the country in which he is domiciled, or if he has not a domicile in any of the countries described in subsection (b) of this section, the country of which he is a national.
(4) nothing in this subsection shall entitle the owner of a registration granted under this section to sue for acts committed prior to the date on which his mark was registered in this country unless the registration is based on use in commerce.
In like manner and subject to the same conditions and requirements, the right provided in this section may be based upon a subsequent regularly filed application in the same foreign country, instead of the first filed foreign application: Provided, That any foreign application filed prior to such subsequent application has been withdrawn, abandoned, or otherwise disposed of, without having been laid open to public inspection and without leaving any rights outstanding, and has not served, nor thereafter shall serve, as a basis for claiming a right of priority.
A mark duly registered in the country of origin of the foreign applicant may be registered on the principal register if eligible, otherwise on the supplemental register in this chapter provided. Such applicant shall submit, within such time period as may be prescribed by the Director, a true copy, a photocopy, a certification, or a certified copy of the registration in the country of origin of the applicant. The application must state the applicant's bona fide intention to use the mark in commerce, but use in commerce shall not be required prior to registration.
The registration of a mark under the provisions of subsections (c), (d), and (e) of this section by a person described in subsection (b) of this section shall be independent of the registration in the country of origin and the duration, validity, or transfer in the United States of such registration shall be governed by the provisions of this chapter.
Trade names or commercial names of persons described in subsection (b) of this section shall be protected without the obligation of filing or registration whether or not they form parts of marks.
Any person designated in subsection (b) of this section as entitled to the benefits and subject to the provisions of this chapter shall be entitled to effective protection against unfair competition, and the remedies provided in this chapter for infringement of marks shall be available so far as they may be appropriate in repressing acts of unfair competition.
Citizens or residents of the United States shall have the same benefits as are granted by this section to persons described in subsection (b) of this section.
A request for extension of protection of an international registration to the United States that the International Bureau transmits to the United States Patent and Trademark Office shall be deemed to be properly filed in the United States if such request, when received by the International Bureau, has attached to it a declaration of bona fide intention to use the mark in commerce that is verified by the applicant for, or holder of, the international registration.
(1) The international registration date, if the request for extension of protection was filed in the international application.
(2) The date of recordal of the request for extension of protection, if the request for extension of protection was made after the international registration date.
(3) The date of priority claimed pursuant to section 1141g of this title.
Sec. 2.34. Bases for filing.
(iv) One specimen showing how the applicant actually uses the mark in commerce.
(v) If more than one item of goods or services is specified in the application, the dates of use required in paragraphs (ii) and (iii) of this section need be for only one of the items specified in each class, provided that the particular item to which the dates apply is designated.
(2) Intent-to-use under section 1(b) of the Act. In an application under section 1(b) of the Act, the applicant must verify that it has a bona fide intention to use the mark in commerce on or in connection with the goods or services listed in the application. If the verification is not filed with the initial application, the verified statement must also allege that the applicant had a bona fide intention to use the mark in commerce on or in connection with the goods or services listed in the application as of the filing date of the application.
(i) The applicant's verified statement that it has a bona fide intention to use the mark in commerce on or in connection with the goods or services listed in the application. If the verification is not filed with the initial application, the verified statement must also allege that the applicant had a bona fide intention to use the mark in commerce on or in connection with the goods or services listed in the application as of the filing date of the application.
(ii) A true copy, a photocopy, a certification, or a certified copy of a registration in the applicant's country of origin showing that the mark has been registered in that country, and that the registration is in full force and effect. The certification or copy of the foreign registration must show the name of the owner, the mark, and the goods or services for which the mark is registered. If the foreign registration is not in the English language, the applicant must submit a translation.
(iii) If the record indicates that the foreign registration will expire before the United States registration will issue, the applicant must submit a true copy, a photocopy, a certification, or a certified copy from the country of origin to establish that the foreign registration has been renewed and will be in force at the time the United States registration will issue. If the foreign registration is not in the English language, the applicant must submit a translation.
(B) State that the application is based upon a subsequent regularly filed application in the same foreign country, and that any prior-filed application has been withdrawn, abandoned or otherwise disposed of, without having been laid open to public inspection and without having any rights outstanding, and has not served as a basis for claiming a right of priority.
(ii) Include the applicant's verified statement that it has a bona fide intention to use the mark in commerce on or in connection with the goods or services listed in the application. If the verification is not filed with the initial application, the verified statement must also allege that the applicant had a bona fide intention to use the mark in commerce on or in connection with the goods or services listed in the application as of the filing date of the application.
(iii) Before the application can be approved for publication, or for registration on the Supplemental Register, the applicant must establish a basis under section 1(a), section 1(b) or section 44(e) of the Act.
(5) Extension of protection of an international registration under section 66(a) of the Act. In an application under section 66(a) of the Act, the international application or subsequent designation requesting an extension of protection to the United States must contain a signed declaration that meets the requirements of §2.33.
(1) In an application under section 1 or section 44 of the Act, an applicant may claim more than one basis, provided the applicant satisfies all requirements for the bases claimed. However, the applicant may not claim both sections 1(a) and 1(b) for the identical goods or services in the same application.
(2) In an application under section 1 or section 44 of the Act, if an applicant claims more than one basis, the applicant must list each basis, followed by the goods or services to which that basis applies. If some or all of the goods or services are covered by more than one basis, this must be stated.
(3) A basis under section 66(a) of the Act cannot be combined with any other basis.
(c) The word "commerce" means commerce that Congress may lawfully regulate, as specified in section 45 of the Act.
C.F.R. Sec. 2.89. Extensions of time for filing a statement of use.
(3) A statement that the applicant still has a bona fide intention to use the mark in commerce, specifying the relevant goods or services, signed and verified (sworn to) or supported by a declaration under §2.20 by a person properly authorized to sign on behalf of the applicant ( see §2.193(e)(1)). If the verification is unsigned or signed by the wrong party, the applicant must submit a substitute verification within six months of the date of issuance of the notice of allowance.
(4) A showing of good cause, as specified in paragraph (d) of this section.
(c) Extensions of time under paragraph (b) of this section will be granted only in six-month increments and may not aggregate more than 24 months.
(d) The showing of good cause must include a statement of the applicant's ongoing efforts to make use of the mark in commerce on or in connection with each of the relevant goods or services. Those efforts may include product or service research or development, market research, manufacturing activities, promotional activities, steps to acquire distributors, steps to obtain governmental approval, or other similar activities. In the alternative, the applicant must submit a satisfactory explanation for the failure to make efforts to use the mark in commerce.
(1) At the time of the filing of a statement of use, or during any time remaining in the existing six-month period in which a statement of use is filed, applicant may file one request, in accordance with paragraph (a) or (b) of this section, for a six-month extension of time for filing a statement of use, provided that the time requested would not extend beyond 36 months from the issuance of the notice of allowance. Thereafter, applicant may not request any further extensions of time.
(2) A request for an extension of time that is filed at the time of the filing of a statement of use, or during any time remaining in the existing six-month period in which a statement of use is filed, must comply with all the requirements of paragraph (a) of this section, if it is applicant's first extension request, or paragraph (b) of this section, if it is a second or subsequent extension request. However, in a request under paragraph (b) of this section, applicant may satisfy the requirement for a showing of good cause by asserting that applicant believes that it has made valid use of the mark in commerce, as evidenced by the submitted statement of use, but that if the statement of use is found by the Patent and Trademark Office to be fatally defective, applicant will need additional time in which to file a new statement of use.
(f) The goods or services specified in a request for an extension of time for filing a statement of use must conform to those goods or services identified in the notice of allowance. Any goods or services specified in the notice of allowance which are omitted from the identification of goods or services in the request for extension of time will be presumed to be deleted and the applicant may not thereafter request that the deleted goods or services be reinserted in the application. If appropriate, an applicant may specify the goods or services by stating "those goods or services identified in the notice of allowance" or "those goods or services identified in the notice of allowance except * * *" followed by an identification of the goods or services to be deleted.
(g) The applicant will be notified of the grant or denial of a request for an extension of time, and of the reasons for a denial. Failure to notify the applicant of the grant or denial of the request prior to the expiration of the existing period or requested extension does not relieve the applicant of the responsibility of timely filing a statement of use under §2.88. If, after denial of an extension request, there is time remaining in the existing six-month period for filing a statement of use, applicant may submit a substitute request for extension of time. Otherwise, the only recourse available after denial of a request for an extension of time is a petition to the Director in accordance with §2.66 or §2.146. A petition from the denial of an extension request must be filed within two months of the date of issuance of the denial of the request. If the petition is granted, the term of the requested six-month extension that was the subject of the petition will run from the date of expiration of the previously existing six-month period for filing a statement of use.
(h) If the extension request is not filed within a reasonable time after it is signed, the Office may require a substitute verification or declaration under §2.20 stating that the applicant still has a bona fide intention to use the mark in commerce.