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Kimberly HUCKABA, Plaintiff–Appellant, v. REF–CHEM, L.P., Defendant–Appellee.
Before KING, ELROD, and GRAVES, Circuit Judges. Allen Ray Stroder, Law Offices of Allen R. Stroder, Odessa, for Plaintiff–Appellant. Jose Abelardo Gonzalez, Charles C. High, Jr., Esq., Kemp Smith, L.L.P., El Paso, for Defendant–Appellee.
Kimberly Huckaba, a former employee of Ref–Chem, L.P., appeals the district court's judgment compelling arbitration. Because the express language of the agreement at issue requires for it to be signed by both parties and because it is undisputed that Ref–Chem did not sign the agreement, we REVERSE and REMAND.
Huckaba sued her former employer, Ref–Chem, in federal district court. Ref–Chem moved to dismiss and compel arbitration. In support of its motion, Ref–Chem provided the court with an arbitration agreement that had been signed by Huckaba. Next to Huckaba's signature is a signature block for Ref–Chem. Ref–Chem, however, did not sign the agreement.
The organization referred to above (“Employer”) and the Employee, whose signature is affixed hereto, (“Employee”), mutually recognize that there are many advantages to using mediation and arbitration to settle any and all legal disputes and claims, including, but not limited to, all those arising from or in the course of employment. ․ In consideration of these many benefits, the mutual agreement of both parties to the binding arbitration provisions, the continuation of the employment relationship and other consideration, the sufficiency of which is hereby acknowledged by Employee, the parties hereto mutually agree that this document shall govern the resolution of all claims and disputes between them.
In addition, the agreement states that “[b]y signing this agreement the parties are giving up any right they may have to sue each other” and that the agreement “may not be changed, except in writing and signed by all parties.” Along with a copy of the agreement, Ref–Chem submitted an affidavit from its human resources director. Among other things, the human resources director states that: (1) Ref–Chem kept Huckaba's signed arbitration agreement in her personnel file as a business record; and (2), pursuant to the agreement, Ref–Chem “voluntarily agreed to arbitrate any disputes between” itself and Huckaba.
In response, Huckaba also submitted an affidavit. She testifies in her affidavit that she signed the agreement “with the expectation and intent that it would be passed on for the signature of the appropriate Ref–Chem” officer. It was her “intention that in order to be bound by the agreement to arbitrate, Ref–Chem would also have to sign the agreement and agree in writing to be bound by its terms.” She states that she did not discuss the terms of the agreement with anyone, nor did she orally agree to arbitration.
Based on the agreement, the district court granted Ref–Chem's motion to compel and dismissed the case without prejudice pending arbitration. The district court concluded that Huckaba's “continued employment after signing the Arbitration Agreement constitute[d] acceptance of that agreement by both” her and Ref–Chem. Huckaba timely appealed.
“This court reviews de novo a district court's ruling on a motion to compel arbitration.” Klein v. Nabors Drilling USA L.P., 710 F.3d 234, 236 (5th Cir. 2013). Enforcement of an arbitration agreement involves two analytical steps: (1) whether there is a valid agreement to arbitrate; and (2) whether the dispute falls within the scope of that agreement. Id.; see also Kubala v. Supreme Prod. Servs., Inc., 830 F.3d 199, 201 (5th Cir. 2016). Here, the first step is at issue.
Determining whether there is a valid arbitration agreement is a question of state contract law and is for the court. Kubala, 830 F.3d at 202. The parties agree that Texas law applies. Texas has no presumption in favor of arbitration when determining whether a valid arbitration agreement exists. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex. 2003). Instead, the party moving to compel arbitration must show that the agreement meets all of the requisite contract elements. Id. at 228. In addition, because the validity of the agreement is a matter of contract, at this stage, the strong federal policy favoring arbitration does not apply.1 Klein, 710 F.3d at 236.
Under Texas law, a binding contract requires: “(1) an offer; (2) an acceptance in strict compliance with the terms of the offer; (3) a meeting of the minds; (4) each party's consent to the terms; and (5) execution and delivery of the contract with intent that it be mutual and binding.” In re Capco Energy, Inc., 669 F.3d 274, 279–80 (5th Cir. 2012) (quoting Coffel v. Stryker Corp., 284 F.3d 625, 640 n.17 (5th Cir. 2002)). As to the last element, whether a signature is required to bind the parties is a question of the parties' intent. Tricon Energy Ltd. v. Vinmar Int'l, Ltd., 718 F.3d 448, 454 (5th Cir. 2013). Signatures are not required “[a]s long as the parties give their consent to the terms of the contract, and there is no evidence of an intent to require both signatures as a condition precedent to it becoming effective as a contract.” Perez v. Lemarroy, 592 F.Supp.2d 924, 930–31 (S.D. Tex. 2008) (quoting ABB Kraftwerke Aktiengesellschaft v. Brownsville Barge & Crane, Inc., 115 S.W.3d 287, 292 (Tex. App.—Corpus Christi 2003, pet. denied)).
A court can decide intent as a matter of law. Tricon Energy, 718 F.3d at 454. “In construing a contract, a court must ascertain the true intentions of the parties as expressed in the writing itself.” Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 333 (Tex. 2011). “In identifying such intent, ‘we must examine and consider the entire writing in an effort to harmonize and give effect to all the provisions of the contract so that none will be rendered meaningless.’ ” Id. (quoting J.M. Davidson, 128 S.W.3d at 229). “We begin this analysis with the contract's express language.” Id. And we end it there too.
The arbitration agreement at issue here contains: (1) a statement that “[b]y signing this agreement the parties are giving up any right they may have to sue each other;” (2) a clause prohibiting modifications unless they are “in writing and signed by all parties;” and (3) a signature block for the employer, Ref–Chem. This express language clearly indicates an intent for the parties to be bound to the arbitration agreement by signing. The agreement also identifies the parties in the first line as “[t]he organization referred to above (‘Employer’) and the Employee, whose signature is affixed hereto.” This clause makes clear the parties' intention that Huckaba would sign the agreement. It does not negate the other references to all parties signing.2 Ref–Chem is right when it notes that Texas courts have held that a signature block by itself is insufficient to establish the parties' intent to require signatures. See, e.g., Tricon Energy, 718 F.3d at 455; Firstlight Fed. Credit Union v. Loya, 478 S.W.3d 157, 168 (Tex. App.—El Paso 2015, no pet.). But in this case, we have more than a blank signature block that speaks to the parties' intent. The agreement also contains language that the parties needed to sign the agreement to give it effect or to modify it. Thus, the question of Ref–Chem's intention is answered by the agreement it drafted.
In several ways, this case is similar to a Texas appellate case, In re Bunzl USA, Inc., 155 S.W.3d 202 (Tex. App.—El Paso 2004, orig. proceeding [mand. denied] ). The court in Bunzl held that the trial court did not abuse its discretion in denying an employer's motion to compel arbitration where the employer failed to sign the arbitration agreement and show that the parties intended to be bound without the employer's signature. 155 S.W.3d at 210–12. The employer submitted an affidavit to the court stating that the agreement was kept in the employee's file and had in fact been reviewed before the employee's termination. See id. at 206. While the court considered this to be some indication that the employer considered itself bound without signing, the trial court's decision to deny the motion to compel arbitration was affirmed in light of a signature block for the employer that was left blank and a clause in the agreement barring amendments without a writing signed by both parties, both of which are present here. Id. at 211.
Ref–Chem distinguishes Bunzl by saying that the “agreement in Bunzl was missing one key provision that the court itself acknowledged: it did not have a provision informing the plaintiff that his continued employment constituted acceptance of the agreement.” Ref–Chem argues that such language is present in this case and, consequently, that another case, In re Halliburton Co., 80 S.W.3d 566 (Tex. 2002) (orig. proceeding), “controls.” Ref–Chem highlights that, in Halliburton, the Texas Supreme Court held that an arbitration agreement that was not signed by either party was valid as a matter of law because: (1) the employer provided notice of the agreement; and (2) the employee accepted the agreement by continuing to work after receiving the notice. Because both conditions are met here, Ref–Chem insists that the agreement is valid.
Ref–Chem is wrong in two regards: (1) its focus on acceptance; and (2) its assertion that the agreement here, like the Halliburton agreement, informed Huckaba that her continued employment constituted acceptance. First, Halliburton addresses “whether an employee accepted the agreement,” not the manner by which the agreement became binding. See 80 S.W.3d at 568. Here, the issue is the execution element of a binding contract under Texas law, not acceptance. Second, contrary to Ref–Chem's characterization of the agreement, and unlike the situation in Halliburton, the agreement here does not state that submission to arbitration is a term of employment and that commencing work constitutes acceptance and binds the parties. See Halliburton, 80 S.W.3d at 569 (“[I]f you ․ continue your employment, ․ you will agree ․”). Instead, the language about continued employment provides that “continuation of the employment relationship” serves as consideration for the agreement. Thus, Halliburton does not control this case.
Ref–Chem also points to other factors to demonstrate its intent to be bound without signing, such as the fact that it created the arbitration agreement, kept the agreement as a business record, and moved to compel arbitration when Huckaba sued.3 Even if we were to consider this evidence, our conclusion would remain the same. Considering the record as a whole, this evidence does not satisfy Ref–Chem's burden that it intended to be bound without signing the agreement.4 Indeed, if it were, then Ref–Chem could have it both ways—argue that it did not intend to be bound because it did not sign the agreement or it did because it kept the agreement and sought to compel arbitration.5 We give meaning to the words Ref–Chem used in its agreement. And because Ref–Chem did not sign the agreement, neither party is bound. See Scaife v. Associated Air Ctr. Inc., 100 F.3d 406, 411 (5th Cir. 1996) (“If parties negotiating a contract intend that the contract shall be reduced to writing and signed by the parties, ․ then either party may withdraw at any time before the written agreement is drawn up and signed by both parties.” (alteration in original) (quoting Gasmark, Ltd. v. Kimball Energy Corp., 868 S.W.2d 925, 929 (Tex. Ct. App.—Fort Worth 1994, no writ))).
Because we conclude that there is not a valid agreement to arbitrate in this case, the district court's judgment compelling arbitration is REVERSED, and this case is REMANDED for further proceedings.
1. Though it is not clear that the district court actually applied an incorrect standard in deciding that the agreement to arbitrate is valid, we agree with Huckaba that the district court erred in stating that, at this stage, “[t]here is a ‘strong presumption in favor of arbitration,’ and the burden is on the party challenging the arbitration agreement to show it is invalid.” (quoting Carter v. Countrywide Credit Indus., Inc., 362 F.3d 294, 297 (5th Cir. 2004)).
2. Moreover, because Ref–Chem's name is printed at the top of the agreement, the language appears to reflect the fact that the employer's name is already at the top of the agreement, regardless of which employee signs, but the name of the employee depends on which employee received and signed the agreement. Thus, it references the signature at the bottom of the page, to the right of which is the signature block for Ref–Chem.
3. In addition, Ref–Chem highlights Huckaba's continued employment as evidence of an intent to be bound without signing. Nonetheless, as discussed previously, the agreement did not state that Huckaba agreed to be bound as a condition of her employment. Thus, her continued employment does not conflict with her statement that she intended that the parties would be bound upon signing. For the same reason, the fact that Ref–Chem continued to employ Huckaba does not demonstrate its assent to the arbitration agreement. See, e.g., Bunzl, 155 S.W.3d at 211 n.4 (“The Agreement does not provide that [the employee's] employment is contingent upon the Agreement, nor does it provide that employment constitutes acceptance of the Agreement. Thus, [the employer] did not necessarily manifest its assent to the Agreement by employing [the employee].”).
4. Notably, the same Texas court of appeals that decided Bunzl came to a different conclusion in Firstlight, holding that an arbitration agreement that had not been signed by the employee fell “squarely within the rule announced in Halliburton.” 478 S.W.3d at 168. However, that agreement, unlike the one here, had language like the language in the Halliburton agreement, stating that “[a]ny employee accepting or continuing employment ․ agrees to be bound by the Policy as a condition of his or her employment.” Id. at 162 (alteration in original). Given this language, the court construed clauses that referenced signing the agreement as evincing the parties' intent to have signing be an alternative, rather than exclusive, manner of binding the parties. Id. at 170. The same tension between various provisions of the agreement—some that discuss being bound by signing and others by accepting or continuing employment—is not present here. There is therefore no need to harmonize the agreement.
5. At oral argument, when asked what he would say if Ref–Chem did not want to arbitrate, Ref–Chem's attorney said that he does not think the agreement gives Ref–Chem a choice but, assuming Huckaba did want to arbitrate, “the arguments would just be switched.” Oral Argument at 21:01–22:16, Huckaba v. Ref–Chem, L.P., No. 17-50341 (5th Cir. argued Feb. 8, 2018). When asked if that then meant he would lose, the attorney clarified with a “yes.” Id. This exchange highlights the unilateral nature of the agreement under Ref–Chem's interpretation, which could render it unenforceable under Texas law. See Royston, Rayzor, Vickery, & Williams, LLP v. Lopez, 467 S.W.3d 494, 505 (Tex. 2015) (holding that an arbitration agreement is unenforceable “if it binds one party to arbitrate, while allowing the other to choose whether to arbitrate”).

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(a) a human pledge, a hostage . See Bürgschaft, pp. 74 - 83 , Críth Gabl. p. 95 f . gl. obses, Sg. 102b3 . co ruc Euá gein n-aile | do Adam, ba cain in gial, SR 1935 . Cisnē fē[i]ch i tiagad gē[i]ll ? what are the liabilities for which hostages are given ? O'C 559 ( H.3.18, p. 277 ). giall so tucadh re comalladh dlighidh urradhuis, Laws ii 116.23 Comm. cia elathach in giall im in coirp-dire `though the surety be an absconder,' v 180.3 Comm. geall no giall is ainm do on n-inbaidh robaisdeadh anall gu cend .vii. mbliadan ... cimidh cach duine o sen amach, O'C. 559 ( H.3.18, p. 277 ) ; cf. also O'C. 241a . co nderna giall do Naim `made prisoner of N,' Marco P. § 63 . cloc ┐ salm do eclais : geill do rígaib, LU 9786 ( RC vi 165 ). géill díthma `forfeited hostages,' Críth Gabl. 596 . ni rig lais na biad geill i nglasaib, Laws iv 50.22 . Cf. is gat fás flaith cen giallu, LL 146b36 ( PRIA 3 Ser. iii 544 § 18 ). géill co ṅglaini, Fél. Jan. 9 . rohadnaiced na geill tuctha andeas ┐ siad beoa, RC xxiv 184.17 . M. ... ar ngabāil gīall for Mumain, ZCP viii 119 v.4 . co tuc giallu Muman, AU i 364.21 (an. 855 ). rogab ... giallu ocus bragti do feraib Mumhan, Cog. 82.13 . ferr cride gialla (giallu, Lec.) courage is better [security] than hostages, LL 345c36 ( Zu Ir. Hss. 15.18 ). for licc na ṅ-gíall i n-Emain Macha, TBC 4726 . fer gabala giall nErenn, RC xviii 41.29 (Tig.). Nīall na ngiall (sic leg.) ngraigech `N. of the mounted hostages,' Arch. Hib. ii 50 § 33 . Carcair na nGiall mar a mbídís géill nó bhraighde ... i gcoimhéad, Keat. iii 554 . ní faghuir géill ar ghiallaibh `no exchange of hostages is got,' TD 7.3 . Of Christ : rāiti rī risin ngīall nglan, ZCP viii 563 § 29. Of the B.V.M. : ba bangīall (sic leg. : Gabhrīal) Rīgh in rīchidh, 562 § 3 . Fig. inn é gíall (inniat géill v.l.) for tengtha de | ruc Níall ... úaib-si ? `Are your tongues the hostages which N. hath wrung from you ?' Ériu iv 108 § 64 . giall grúaide a pledge for somebody's protection (?, see gruad) : aurfogair dōib gīallu grūaidhe, Arch. iii 295 § 31.
Compds. ¤bhrios ( ¤phrios `press') hostage-cell (?), TD 6.18 . ¤bhroid : do bhaoi i ng. agá ghrádh, Dánta Gr. 71.15 . ¤cherdda (cherd), q.v. ¤chométaide a jailer : saidhleóir nó giall-choimhéadaighe don diabhal, TSh. 7344.
(b) As vn. act of yielding homage, obeying : dúil na toile do bheith ag giall don réasún, TSh. 2996 ; 3044 ; 3070 . See ib. Vocab.


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Noteworthy Domain Name Decisions is a running collection of annual decisions that taken together provide insight into the jurisprudence applied in UDRP disputes. More detailed analytical discussions of decisions can be found in recent and archival essays posted on the website and republished on udrpsearch.com and circleid.com. Noteworthy Domain Decisions for 2015 can be found here, 2016 can be found here, and 2018 can be found here.
Mr. Levine is the author of a treatise on trademarks, domain names, and cybersquatting, Domain Name Arbitration, A Practical Guide to Asserting and Defending Claims of Cybersquatting under the Uniform Domain Name Dispute Resolution Policy. (Legal Corner Press, 2015) and Supplement and Update (2017). Release of Second Edition March 1, 2019.Learn more about the book and Supplement at Legal Corner Press. Available from Amazon and Barnes & Noble. Review and notices of the book here. Important Note: If you purchased the First Edition of the treatise you can obtain a copy of the Second Edition 50% off the retail price by contacting Legal Corner Press or Mr. Levine. Expected release of Second Edition August/September 2018.
The Panel in CPA Global Limited agreed with Respondent that “Internet users in the United States are accustomed to seeing terms such as ‘litigation’ used in domain names in connection with business names or trademarks to provide information about class action lawsuits.” This view has also been applied to attorney information about drug consequences. However, decisions are not entirely consistent on the question of <trademark+lawsuit [litigation].com> although where the website is clearly providing “information to the public about a legitimate lawsuit against the Complainant” Respondent is more likely to be found to have rights or legitimate interests in the domain name.
Information Tools Limited v. Future Media Architects, Inc., D2017-2178 (WIPO December 23, 2017) (<harmoni.com>).
Air Serbia a.d. Beograd Jurija v. Domains By Proxy, LLC / Meijun Lu, D2017-1986 (WIPO December 18, 2017) (<jat.com>.
De Lage Landen International B.V. v. Steve Thomas, D2017-2045 (WIPO December 7, 2017) (<dll.com>. Denied).
Deciso Group B.V. v. Registration Private, Domains By Proxy, LLC / Jamie Thompson, Rubicon Communications dba Netgate, D2017-1828 (WIPO November 12, 2017) (<opnsense.com>.
[It] has proffered no evidence to establish its purpose in registering the Disputed Domain Name, nor that Respondent made use of the domain name in a manner consistent with any proper purpose. In fact, the only use Respondent has made of the Disputed Domain Name is to link it to batteries, which is the exact same business Complainant is in. (Emphasis added).
Claiming that it is not responsible for the content is not a defense.
There has been a gradual build-up of post-UDRP decisions in U.S. federal court under the Anticybersquatting Consumer Protection Act (ACPA) essentially validating the UDRP jurisprudence. The most recent is Joshua Domond and Harold Hunter, Jr v. PeopleNetwork APS d/b/a Beautifulpeople.Com, Beautiful People, LLC, Greg Hodge, and Genevieve Maylam, 16-24026-civ (S.D. FL. Miami Div. 11/9/17) dismissing the complaint and awarding defendant (domain name holder) attorney’s fees. The UDRP Panel in Beautiful People Magazine, Inc. v. Domain Manager / PeopleNetwork ApS / Kofod Nicolai / People Network Aps / Nicolai Kofod / People Network—FA1502001606976 (Forum May 4, 2015) (<beautifulpeople.com> dismissed with RDNH, Respondent had priority.
See also See Direct Niche, LLC v. Via Varejo S/A, 15-cv-62344 (S.D. Fla., August 10, 2017). In finding in favor of defendant (who as Complainant prevailed in the UDRP, VIA VAREJO S/A, v. Domain Admin, D2015-1304 (WIPO October 17, 2015) (<casasbahia.com>), the court held that “It is not necessary that the ‘mark,’ as described in the statute, be a trademark registered with the U.S. Patent and Trademark Office, nor need it be a trademark for which a party has applied for federal registration. Via Varejo (a Brazilian company) demonstrated that it had a common law trademark in the U.S. for CASAS BAHIA.
Complainant’s screenshot confirms [that] … the domain name contains various IMI related links and descriptions of the content located at the linked webpage.
This decision has been criticized for two reasons, namely the letters are arguably random and the length of time between registration and complaint. See Matt Serlin, UDRPs Filed–j Brand Owners Take Note (I think a better fit the title would be “Investors Take Note!) The second reason raises again the issue of laches as a complete defense, except that the equitable bar is only dusted off when there is no infringing use. Marks that predate domain names have potentially actionable claims, but only realized with proof of abusive registration, and in this particular case the proof was provided by the uncurated page to which <imi.com> resolved.
NYSE Group, Inc. v. Val Sklarov / BentleyTek / America 2030 Capital, FA170900 1748855 (Forum October 23, 2017) (<nyseloan.com> + 20 other domains including <nyse-trader.com>.
Comercializadora de Lacteos y Derivados, S.A. de C.V. v. Apple Inc., D2017-1351 (WIPO October 23, 2017) (<lala.com>).
Mark owner (and advocate) should take care not to overstate or misstate its case. “The Complainant has put these assertions forward [its mark is well-known and that the Respondent has sought to defraud the Complainant’s customer] without any supporting argumentation or evidence. Such a practice cannot be accepted, as it is the Complainant which carries the burden of proof in demonstrating bad faith by the Respondent in the registration and use of the Disputed Domain Name, and not the other way around.” Consequence: RDNH.
Oy Vallila Interior Ab v. Linkz Internet Services, D2017-1458 (WIPO October 20, 2017) (<vallila.com>.
Little Acorns Fostering Ltd. v. W P, The Cloud Corp / Al Perkins, D2017-1776 (WIPO October 18, 2017) (<littleacornfostering.com>.
Mr. Alen Baibekov Booking Group SIA v. Mr. Daniel Chestnut, CAC 101650 (ADR.eu October 13, 2017).
Panel points out that “[Paragraph] 318 of the WIPO Second Report states that “[W]here a trade name is used in widespread market, it is often also the subject of trademark protection, or satisfies the conditions for protection as an unregistered trademark so as to qualify, in appropriate circumstances, for protection against bad faith, deliberate misuse under the UDRP.” And goes on to suggest that domain names could also benefit from the protection afforded to unregistered trademarks on proof of secondary meaning: “In the Panel’s view, the above-mentioned principles should also apply, mutatis mutandis, to domain names, which equally fall outside the scope of the Policy, unless they can benefit from the protection afforded to unregistered trademarks.” Plaintiff’s application for BOOKING.COM was rejected by the USPTO but on appeal was held to qualify as a trademark, Booking.com v. Matal, ___ F.Supp.2d ___ (E.D. Virginia 2017).
“1. You can purchase this name for the small sum of $500 (£380) though the uniregistry marketplace – the domain is automatically transferred into your account upon payment. Click here for this option. OFFER ONLY AVAILABLE FOR 7 DAYS – THE PRICE WILL RISE BY 100 PER DAY AFTER THIS.
Abusive registration can be found even where the hyperlinks are to goods or services unrelated to Complainant’s, assuming the facts are sufficient to draw inferences that respondent’s purpose in registering the domain name is to take advantage of the mark’s goodwill. Here, while the two words that combine to form the mark are dictionary words their combination is not generic.
Citing, Dovetail Ventures, LLC v. Klayton Thorpe, FA1506001625786 (Forum Aug. 2, 2015) (holding that the respondent had acted in bad faith under Policy ¶ 4(b)(iv), where it used the disputed domain name to host a variety of hyperlinks, unrelated to the complainant’s business, through which the respondent presumably commercially gained). Therefore, as the Panel finds that Respondent has engaged in this conduct, it finds the disputed domain name was registered and is being used in bad faith.
Pending trademark application not sufficient to establish a right, but even if Complainant had offered common law rights its prima facie case was insufficient to establish that Respondent lacked rights or legitimate interests.
N2COM v. Whois Privacy Services / Domain Admin, Xedoc Holding SA, D2017-1220 (WIPO September 7, 2017) (<babyboom.com>).
Respondent demonstrated rights under 4(c)(i) and 4(c)(ii) of the Policy. “Parnassus” has reference to a mountain peak in Greece that towers above Delphi, sacred to to Dionysus and an imposing feature of Greek mythology, but for all its towering implication as the home of the gods the word is generic. In this case, Respondent is an operating business.
The proof included: 1) Articles of Organization of the Respondent company dated, 2 April 2015, sealed by the Registrar of Offshore Companies and Trustees of Nevis; 2) an instrument by the organizer of the company signed and dated on 2 April 2015 and testifying that she is forming the company; 3) a certificate of a Notary Public, signed and sealed and dated 2 April 2015, to the effect that the organizer of the company had executed the Articles of Organization; 4) a Designation and Acceptance by a solicitor that he is the Registered Agent of the company, also dated 2 April 2015; 5) the Certificate of Formation of the Company by the Island of Nevis Office of the Registrar of Companies certifying that the company was formed on that date and that that certificate was given on 2 April 2015; and 6) an Endorsement Certificate by the same Registrar dated 2 April 2015 that it had endorsed “Filed” on the Original Articles of Organization.
Same family name; same business. Lesson in how a respondent meets its evidentiary challenge by showing it operated its business under the family name “Williamson” supported by documentary evidence that it was the senior user of the name. In fact, Complainant “acknowledges that the disputed Domain Name <WILLIAMSON.WINE> appears on the letterhead on the Respondents’ Price Sheet for its wines.” The lesson consists in offering a narrative together with documentary evidence; not a narrative alone; and in having the facts solidly anchored (so they are seen as tangible facts rather than faux facts).
Trademark applicant’s declaration of first use in commerce is not conclusive of its truth; priority must be established concretely, not simply alleged. “The problem Complainant has in establishing common law trademark rights . . . is that the expression Voice of Hope is very generic and covers a multitude of possible meanings. That being so, Complainant has to show a secondary meaning of the expression as well as its primary meaning and a secondary meaning that links the expression with Complainant,” which is has failed to do.
Commune de Versailles Collectivité Territoriale v. Kimberly Kubalek, Kubalek, LLC, D2017-0985 (WIPO July 24, 2017) (<visitversailles.com>).
In determining whether respondents have violated the Policy, Panels typically take into account respondents’ business histories by drawing distinctions among different business models. Registrants specializing in particular kinds of domain names, generic words, idioms, surnames, and three or four letter strings for example. In this case, Respondent has websites devoted to tourism. The Respondent in FPT Industrie S.p.a. and REM Industrie S.r.l. v. HugeDomains.Com, D2017-0842 (WIPO July 7, 2017) (<fastmill.com>) specialized in generic words and held many domain names that included the word “fast”. Respondents who include their histories are generally persuasive that their registrations are in good faith, although there are exceptions, for example Constellation Brands, Inc. and its wholly owned subsidiary Ruffino SRL v. Stanley Pace, FA1706001735061 (Forum July 20, 2017) (RUFFINO and in which Respondent has accumulated over 10,000 surnames, but Complainant pointed out in its additional statement that “U.S. Census Bureau (2010 Census) shows only 795 individuals with the surname “Rufino” in the U.S. making its surname usage de minimis.”) See below (Panel stepping into error), Respondent has commenced an ACPA action for a declaratory judgment that its registration was not unlawful.
Lotto Sport Italia S.p.A. v. David Dent, D2016-2532 (WIPO February 13, 2017) (<lottoworks.com>, <lottostore.com>. Complaint granted; Respondent commences ACPA action for declaratory judgment that registrations were lawful. Pending action).
Constellation Brands, Inc. and its wholly owned subsidiary Ruffino SRL v. Stanley Pace, FA1706001735061 (Forum July 20, 2017) (<rufino.com>. Complaint granted; Respondent commences ACPA action for declaratory judgment that registrations were lawful. Pending action).
Bulbs 4 East Side Inc., d/b/a Just Bulbs v. Fundacion Private Whois/ Gregory Ricks, D2013-1779 (WIPO January 13, 2014) (Complaint denied, but successful in ACPA action, Bulbs 4 E. Side, Inc. v. Ricks, (S.D. Tex., Houston Div. July 18, 2017 together with an award of damages for $50,000 and attorney’s fees).
Camilla Australia Pty Ltd v. Domain Admin, Mrs Jello, LLC., D2015-1593 (WIPO November 30, 2015) (<camilla.com>. Complaint granted; in a subsequent ACPA action Camilla Australia (now defendant) stipulated to vacate the UDRP award in its entirety. Mrs. Jello, LLC v. Camilla Australia Pty Ltd. 15-cv-08753 (D. NJ 8/1/2016).
Austin Pain Association v. Domain Admin / this Domain Is for Sale / HugeDomains.com, FA1312001536356 (Forum March 18, 2014) (<austinpain.com>. Complaint granted; Respondent commences ACPA action for declaratory judgment registrations were lawful; parties enter into stipulation July 21, 2014 setting aside the Forum award, plus $25,000).
Corporacion Empresarial Altra S.L. v. Development Services, Telepathy, Inc., D2017-0178 (WIPO May 15, 2017) (<airzone.com>.
Complainant sanctioned for RDNH and Respondent commences ACPA action for reverse domain name hijacking damages. Pending action.
Airbnb, Inc. v. Norman King / Target Marketing Group, FA1707001738345 (Forum July 27, 2017) (<air-bnb.org>.
Steelcase Inc. v. Cimpress Schweiz GmbH, FA1706001737556 (Forum July 25, 2017) (<steelcasee.com>.
Warner Bros. Entertainment Inc. v. David Haddad / Warner Bros, FA1706001736053 (Forum July 17, 2017) (<warnerbroscareers.com.co>).
Where the Registration Agreement is in both languages (of Complainant and Respondent) Complainant has a choice of which will be the official language of the proceedings.
David Duchovny v. Alberta Hot Rods c/o Jeff Burgar, FA1706001734414 (Forum July 4, 2017) (21 years) and Commonwealth Bank of Australia v. Registration Private, Domains By Proxy, LLC / Ravindra Patel, gbe, D2017-0807 (WIPO July 6, 2017) (<bankwest.com>) (20 years) .
There is no time bar under the UDRP and no laches as illustrated in these two cases. While complainants still have the overall burden of proving bad faith (easier with celebrity names as explained below) the principal drama for businesses revolves around the use of the domain name, namely whether respondent can prove a paragraph 4(c)(i) defense—that is, “before any notice” respondent has used the domain name “in connection with a bona fide offering of goods or services.” Such use would satisfy the “detrimental reliance” element of laches without expressly invoking that theory.
One of the common themes in these two cases (they also have unshared issues noted separately) is that the parties reside on different continents. How would knowledge of the mark have reached respondents? Neither Complainants even begin to answer the question; or even thought there was any question which demanded they answer.
O2 Worldwide Limited v. Dan Putnam / Rodolfo a. Barcenas / Rhonda Peterson / Bob Terry / Whois Privacy Service / Eric Chan / Cecil Morgan / Whois Privacy Service / Christopher Redding / Domain ID Shield Service / Mary Martin / Ella Gee / John White, Rebecca Graphics / Thomas Heard / Dotty Krause / Jess Brown / Whoisguard Protected Whoisguard, Inc. / Andrew Rollinson, LetUsClose, D2017-0658 (WIPO June 29, 2017).
Delusional belief that because a domain name is available, the purchase must be legal. “[I] legally purchased the disputed domain name . . . from . . . <godaddy.com>.” Respondent was not represented.
Last month there was this: ““Please do not continue to harass our company or our employees. We consider this email a harassing email. we have notified our legal repetition (sic) and they advised us to sue for harassment should you or anyone continue to send threatening emails and letters to our company.” Coachella Music Festival, LLC v. Beaudoin, Denis / Denis Beaudoin, FA1703001724063 (Forum May 9, 2017).
In Red Bull GmbH v. Carl Gamel, D2008-0253 (WIPO April 14, 2008) () Respondent stated: “Please sue me!” and later “Try this I own ‘www.redbullsucks.com’ ‘http://www.redbullsucks.com’ and I will continue to promote my business! A.C.T. is the best an thats that! SEE YA!!! “.
Color Image Apparel, Inc. v. Whois Privacy Services by DOMAINCA / unitedeurope consulting, D2017-0650 (WIPO June 19, 2017) (<alo.com>).
Complainant (represented by counsel) mistakenly relies on the Octogen line of cases. It asserts that the Respondent has no rights or legitimate interests in the disputed domain name since it is not “genuinely us[ing] or at least demonstrably intend[ing] for such use in connection with the relied-upon meaning.” The Panel citing paragraph 4.16 of the WIPO Overview 3.0 that complainants represented by counsel “should be held to a higher standard” found Complainant liable for reverse domain name hijacking.
While complainants with registered marks have standing based solely on their registrations, those claiming unregistered marks have the higher burden of proving secondary meaning. For marks “comprised of generic, descriptive, or geographic words such as the words WASATCH, SHUTTERS(S) and DESIGN in the case at hand, there is an even greater onus on Complainant to present compelling evidence of secondary meaning or distinctiveness.” There must be evidence “showing a complainant’s efforts to promote and affiliate itself with a mark”, that the mark has “become a distinctive identifier associated with Complainant or its goods or services.” Alleging distinctiveness does not suffice.
3. In order to prevail on this element, Respondent must affirmatively identify some legitimate interest he has in the Domain Name.
Bloomberg Finance L.P. v. zhang guo jie, FA1704001727926 (Forum June 8, 2017) (<Bloomberg.site>.
In this dispute, Complainant owns THE FABRICATOR and claims <fabricator.com> is confusingly similar in that “fabricator” is the dominant element of the mark. Respondent argued “fabricator” is no more dominant than the article; either element alone is generic. For this reason the complaint must be dismissed because Complainant fails the standing requirement: domain names can be similar without being confusingly similar. The Panel agreed: “Complainant does not have any right to monopolize the dictionary word ‘fabricator’ alone…. [N]either the article ‘the’ nor the noun ‘fabricator’ is distinctive in its own right…. Complainant’s mark is distinctive only in its indivisible wholeness” (emphasis added).
Complainant given “benefit of the doubt” on the issue of reverse domain name hijacking since it was “not represented by counsel.” The Panel concluded it could not “go so far as to determine the action was taken in bad faith [rather its complaint] was misdirected and generally wrongly pursued” and that Complainant “lack[ed] [a] robust understanding” of the UDRP.
Complainants’ problem in this and like cases (setting aside its decision not to retain counsel) is failure to marshal evidence of its right. Secondary meaning cannot be established without proving 1) continuous and uninterrupted use in commerce; and 2) reputation predating the registration of the domain name.
Complainant does not have to have a registered mark to have standing, but if it claims to have a common law mark it only has standing if it proves secondary meaning earlier than the registration of the domain name. Failure of proof warrants dismissal of the complaint.
Franke Technology and Trademark Ltd v. hakan gUlsoy, CAC 101464 (ADR.eu May 11, 2017) (<franke-servisi.com>.
Not all is happiness when challenged for cybersquatting: “Please do not continue to harass our company or our employees. We consider this email a harassing email. we have notified our legal repetition and they advised us to sue for harassment should you or anyone continue to send threatening emails and letters to our company…. All of our websites clearly state that we are in no way affiliated with Coachella Music Festival, Desert Trip Music Festival, or Stagecoach Music Festival…. We purchased all of our domain names with the proper rights and we use are websites responsibly…. We obtained these websites legally and we will continue to run all these sites legally…. We respectfully request that you drop all claims and harassment against us…. Any further harassment issues will be forwarded to our legal team.
This case is a useful reminder to complainants of their burden of proof.
First: the Complainant is not the registered trademark owner and failed to explain its relationship with the registrant of CITYWIDE. It therefore fails in proving infringement of a right..
Second: “Complainant has never had a trademark for CITY WIDE, as the trademark granted to it disclaimed any exclusive right to use CITY WIDE other than in the diagram forming the entirety of its trademark.” Even if the relationship were demonstrated, it would still lack standing.
Third: “[The words are clearly generic, making it unlikely that they could be trademarked. There was therefore an obligation on Complainant to show why Respondent was acting in bad faith in using the two generic words “city wide” to describe its business, as so many other business owners have done.” Trademark owners have no monopoly of dictionary words.
There is no statute of limitations for cybersquatting under the UDRP although where the second level domain is composed of dictionary words and common phrases waiting will generally favor respondent unless the website at any time is shown to have taken or presently takes advantage of complainant’s mark. The issue is illustrated in this case, wherein the Panel notes that “Complainant fails to explain why it waited some 13 years to bring this complaint; however, as this Panel lacks equitable powers and Complainant has otherwise established all three elements under the policy, the Panel finds that Respondent has engaged in bad faith use and registration of the disputed domain name.” (Emphasis added).
The latest example of mark owners tilting against windmills is the acronym “DCAC”—Denny Cherry & Associates Consulting, LLC v. Azeras LLC, FA1702001718995 (Forum April 16, 2017)—and the word string “myspectrumnews”—Charter Communications, Inc., Charter Communications Holding Company, LLC and Charter Communications Operating LLC v. Perfect Privacy, LLC / Sheri K Corwin, D2017-0040 (WIPO April 19, 2017). First use in commerce for both Complainants postdated the registrations of the domain names.
Complainant alleges 74 domain names fraudulently transferred out of its account. However, it submitted no evidence that any of the domain names are identical or confusingly similar to marks in which it has rights. As the Panel notes “the allegations of theft are outside the limited scope of the Policy and that the present decision does not leave the Complainant without potential redress in the courts.” There is no actionable claim for theft under either the UDRP or the ACPA unless there are marks in which complainant has rights.
A three-member panel including the author of Mummygold unanimously rejected the reasoning of that case thereby essentially declaring the retroactive bad faith view a dead end.
Active use of domain names is not limited to websites. It includes email, servers, and personal use. Respondent alleged it had “been using <imec.com> for email since its inception: hm@imec.com; support@imec.com; sales@imec.com; webmaster@imec.com; hm_home@imec.com, webadmin@imec.com, webadmin@ server.imec.com, and hminassi@imec.com.” This would bring it into legitimate use under Policy ¶ 4(c)(i). It also alleged (and the Panel accepted) that “it is currently engaging in legitimate noncommercial or fair use because it uses subpages at <imec.com> to store personal and other non-business related files and folders under a secure, password-protected system.” This would bring it into legitimate use under ¶ 4(c)(iii). The Panel cited RMO, Inc. v. Burbidge, FA 96949 (Forum May 16, 2001) (“A family information site is a legitimate non-commercial use.”).
The Panel found the dispute outside the scope of the Policy: “Both parties agreed … that Complainant engaged with Respondent to make use of Respondent’s IT services in developing and promoting Complainant’s business.” Two earlier cases are cited and quoted that are precedential on this issue.
offer any evidence of that fact. Note particularly in the Panel conclusion that it could have been otherwise. “The Panel notes in passing that if it is the case that the Respondent is legitimately connected with the Riemann surname and that he registered the disputed domain name for family email purposes it is unfortunate to say the least that he did not make any attempt to vouch this and more importantly to suppress or remove PPC content if its display has indeed been inadvertent. Either or both of these circumstances might have led to a somewhat different construction being made by the Panel on the issue of registration and use in bad faith in this case. Nevertheless, the absence of a credible and proper foundation for the Respondent’s averments is very significant and the present finding follows as a direct consequence.
The theory that an owner of a post acquired trademark has a better right to a domain name because of “Respondents failure to justify any right, use or legitimate interest” has long been laid to rest. In Harow, Complainant argued that “the anteriority of the first registration of [<harow.com>] to its trademark rights is irrelevant in light of Respondent’s failure to justify any right, use or legitimate interest before the filing of the trademarks.” For postdated trademarks, respondent does not have to”justify” its right; Complainant has to prove bad faith registration (bad faith use not a factor).
Panel excused Complainant of reverse domain name hijacking because the complaint “appears, on balance, to be more misconceived than malicious in nature” (emphasis added). The head scratcher in this decision is that the Panel also stated that the “Complaint should not have been brought” which is the formulaic language used by panelists on the other end of the spectrum for finding abuse of the proceeding.
The filed evidence establishes the Respondent’s current status under California law is suspended, but it appears that such a suspension can in at least some circumstances be reversed. . . . The fact is that the Disputed Domain Name was registered by the Respondent long before the Complainant adopted the name KION and the Respondent is still the named registrant, even though its status under Californian law is suspended. That does not, in the Panel’s opinion, establish that the Disputed Domain Name has been registered and used in bad faith.
Dividex Management, LLC v. Rory Blake, D2016-2574 (WIPO February 17, 2017) (<dividex.com>).
Panel in a recent case declined to find reverse domain name hijacking because Complainant “at least [presented] a colorable argument” (albeit relying on a principle of bad faith that has essentially been rejected by other panelists). The Panel found this reliance (that renewal of registration with knowledge of a mark is bad faith) “was reasonable.” Some commentators would find that relying on a rejected proposition of bad faith is “not reasonable” at all, in fact dubious and particularly so where the mark was “not distinctive” and postdated the registration of the domain name by more than a decade, since in that factual context there could not have been bad faith registration.
NSK LTD. v. Li shuo, FA1701001712449 (Forum February 16, 2017) (<skfnsk.com>).
In contrast to the Forum, WIPO panelists have a long history of mulling over the problem of multiple marks incorporated into domain names. In Kabbage, Inc. v. Oneandone Private Registration 1, 1&1 Internet Inc. – www.1.and1.com/oert Hanssen, Ridiculous File Sharing, D2015-1507 (WIPO November 20, 2015) (<kabbage4amazon.com>) the Panel rested its reasoning on earlier decisions held that “where Complainant has fulfilled all the elements of Policy paragraph 4(a), expressed a strong preference for transfer over cancellation, and demonstrated to the satisfaction of the Panel that it is cognizant of its obligations to respect the rights of third-party trademark holders, the Panel is willing” to grant the request. The same Panel had previously mulled the problem three years earlier in Incase Designs Corp. v. Rogenie LLC, Rogenie Cordero, D2012-1491 (WIPO September 12, 2012) (<iponeincase.com> in which it concluded “[t]here is no indication in the record that Apple Inc. would consent to the remedy of transfer to Complainant, and indeed, Complainant appears to be disinclined to request Apple Inc.’s authorization. In these circumstances, therefore, the Panel has determined that it is most consistent with the Policy and its injunction of efficiency not to delay the proceedings by ordering Complainant to seek such authorization.
The Panel’s reasoning in NSK is a departure from WIPO appointed Panels. It accepts without other authority a recently created theory which itself cites no authority. NIKE, Inc. and Nike Innovate, C.V. v. Mattia Lumini and Yykk Snc. FA1606001679233 (Forum July 15, 2016) (<nikegoogle.com>). The reasoning comes from nowhere although there may be a clue in the use of “nexus” which is found in the Forum rule concerning multiple complainants. In any event, the “nikegoogle” dispute was refiled with both mark owners as complainants and the domain name transferred, NIKE, Inc., Nike Innovate, C.V., and Google Inc. v. Mattia Lumini / Yykk Snc, FA160800 1687597 (Forum September 20, 2016).
Bayerische Motoren Werke AG v. MIKE LEE / WHOISGUARD PROTECTED, WHOISGUARD, INC., Yang Xiao, Xiao Yang, Ning Li, Li Ning, MIKE LEE, D2016-2268 (WIPO January 6, 2017) (<bmw-icom.com> and several others); Fifty Shades Limited v. Domain Admin / Whois Privacy Corp., FA161100 1704616 (Forum January 17, 2017) (<fiftyshades2.com>).
There are two different senses of “counterfeit.” When it refers to a “spurious mark” registrants found to have registered domain names in bad faith are cybersquatters by definition. Noun infringements are the province of the UDRP/URS. However, more commonly we encounter counterfeiting as an adjective as it applies to spurious goods (counterfeit goods) –“made in exact imitation of something valuable or important with the intention to deceive or defraud.” Webster’s Ninth New Collegiate Dictionary. Under U.S. trademark law noun claims can be joined with adjectival claims under the Anticybersquatting Consumer Protection Act (ACPA) which is a section of the Lanham Act but adjectival claims are not actionable under the UDRP/URS.
Complainants in the following two cases initiated complaints for cybersquatting against respondents acquiring domain names by auction.
In this case, Complainant’s predecessor owned a trademark that lapsed and Complainant applied for a trademark that was registered in 2016. Respondent acquired the domain name after it was abandoned by a third-party and later than the lapsed trademark but earlier than Complainant’s recently acquired trademark. Since Respondent’s registration of <biospa.com> is senior to Complainant’s filing date for the BIOSPA mark with the USPTO there can be no bad faith.
Domain name abandoned by earlier registrant and immediately registered by Respondent for its own account. Complaint denied even though Complainant’s mark has priority; weak trademark and no evidence of Respondent capitalizing on the mark.
Mr. Levine is the author of a treatise on trademarks, domain names, and cybersquatting, Domain Name Arbitration, A Practical Guide to Asserting and Defending Claims of Cybersquatting under the Uniform Domain Name Dispute Resolution Policy. (Legal Corner Press, 2015). Learn more about the book at Legal Corner Press. Available from Amazon and Barnes & Noble. Supplement and Update through August 2016 published January 2017. It is available in print format from Amazon and Barnes & Noble but is also available in pdf format free on the publisher’s website, www.legalcornerpress.com/dna-supplement.

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Head of the System Programming Department of CMC MSU.
Head of the System Programming Department of MIPT.
Head of the System Programming Department of HSE.
Victor Ivannikov is a prominent scientist in the field of computer engineering and programming. Born in 1940, he graduated from the Moscow Institute of Physics and Technology (MIPT) in 1963 where he specialized in mathematical computation devices and appliances. After graduating, he went on to work at the renowned Institute of Precise Mechanics and Computer Engineering (IPMaCE) becoming a leading member of the team responsible for creating the D-68 operating system for the BESM-6 computer.
While at IPMaCE, Ivannikov gained extensive experience of systems programming that enabled him to make notable contributions to the development of operating systems, including the creation of new ways to organize parallel processing and programming complexes. Ivannikov also conducted numerous research projects and was responsible for important innovations in object-oriented programming, creating new cluster technology that was implemented during the creation of the AS-6 operating system and has been used in various computational complexes and super-computers.
In the 1980s Ivannikov worked at the Academy of Sciences of the USSR’s Institute of Cybernetics and supervised the creation and implementation of automatic design and software development for super computers. In 1984 he was elected an associate member of the Academy and continues to head commissions on programming and software distribution there while organizing exchanges between Russian scientists and their foreign counterparts as a member of the board of the Department of Mathematical Sciences.
In 1994 he established the Academic Institute of System Programming, and served as its director since. The institute develops methods and tools for the assessment of software reliability, performance and safety, the analysis of high-performance and distributed systems, including GRID, and the formalization of the basic standards of open and telecommunication systems. Mr. Ivannikov also leads the departments of system programming at the faculty of Computation Mathematics and Cybernetics at Moscow State University, the MIPT and HSE, where he lectures on the fundamentals of algorithms and algorithmic languages as well as on general issues in the field of the information sciences.
1963. Moscow Institute of Physics and Technology «Mathematical computing instruments and devices».
Research Seminar "Component-Oriented Programming" (HSE).
Scientific advisor of many PhD and students.
Heads the Russian branch of the IEEE Computer Society.
Department of Mathematical Sciences (AS Russia) board.
Programming and Computer Software, in Russian and English.
Belevantsev, A.A., Veselevich, E.A.,Ivannikov, V.P. Analysis of entities in C and C++ programs and relations between them for program understanding. Programming and Computer Software, Volume 42, Issue 1, January 2016. pp 49-53.
A. I. Get'man , V.P. Ivannikov, Yu. V. Markin, V. A. Padaryan, A. Yu. Tikhonov. Model of Data Handling for In-Depth Analysis of Network Traffic. Proceedings of the Institute for System Programming Volume 27 (Issue 4). 2015 y. pp. 5-22.
Ivannikov, V.P.,Belevantsev, A.A.,Borodin, A.E.,(...),Zhurikhin, D.M.,Avetisyan, A.I. Static analyzer Svace for finding defects in a source program code. Programming and Computer Software, September 2014, Volume 40, Issue 5, pp 265-275.
Ivannikov, V.P.,Kamkin, A.S.,Chupilko, M.M. Correctness checking of HDL-model behavior based on runtime trace matching, Proceedings - 2013 Tools and Methods of Program Analysis, TMPA 2013, 2013. pp. 25-30.
Burdonov I., Ivannikov V., Kosachiov A. The KLASTOS Project SORUCOM-2011 Proceedings,12–16 September, 2011, Veliky Novgorod, Russia, pp. 76-82.
Ivannikov V., Turdakov D., Nedumov Y. Fast Text Annotation with Linked Data. Eighth International Conference on Computer Science and Information Technologies 26 - 30 September, 2011, Yerevan, Armenia.
Ivannikov, V.P.,Grushin, D.A.,Kuzyurin, N.N.,Pospelov, A.I.,Shokurov, A.V. Software for improving the energy efficiency of a computer cluster. Programming and Computer Software, November 2010, Volume 36, Issue 6, pp 327-336.
Budenkov, G.A.,Ivannikov, V.P.,Kabakova, A.V.,Strizhak, V.A. Ultrasonic quality control of press-fit joints. Russian Journal of Nondestructive Testing, August 2009, 45:575, 2009.
Belevantsev, A.A.,Gaisaryan, S.S.,Ivannikov, V.P. Construction of speculative optimization algorithms, Programming and Computer Software, May 2008, Volume 34, Issue 3, pp 138-153.
Ivannikov, V. Grand challenges of system programming. Perspectives of Systems Informatics, Volume 4378 of the series Lecture Notes in Computer Science pp 19-19.
Ivannikov, V.,Gaissaryan, S.,Avetisyan, A.,Padaryan, V. Model based performance evaluation for MPI programs (Chapter). Parallel Computing Technologies Volume 4671 of the series Lecture Notes in Computer Science pp 537-543.
Ivannikov, V.P.,Kamkin, A.S.,Kossatchev, A.S.,Kuliamin, V.V.,Petrenko, A.K. The use of contract specifications for representing requirements and for functional testing of hardware models, Programming and Computer Software, September 2007, Volume 33, Issue 5, pp 272-282.
Avetisyan, A.I.,Gaisaryan, S.S.,Ivannikov, V.P.,Padaryan, V.A. Productivity prediction of MPI programs based on models. Automation and Remote Control, May 2007, Volume 68, Issue 5, pp 750-759.
Ivannikov, V.P.,Gaissaryan, S.S.,Avetisyan, A.I.,Padaryan, V.A. Checkpointing improvement in ParJava environment (Book Chapter), Parallel Computational Fluid Dynamics 2004: Multidisciplinary Applications, 2005.
Ivannikov, V.,Gaissaryan, S.,Avetisyan, A.,Padaryan, V.,Leontiev, G. Model based recovery protocol in ParJava environment, Proceedings of the International Conference on Parallel and Distributed Processing Techniques and Applications, PDPTA '04, June 21-24, 2004, Las Vegas, Nevada, USA, Volume 3.
Ivannikov, V.,Gaissaryan, S.,Avetisyan, A.,Padaryan, V. Development of scalable parallel programs in ParJava environment (Book Chapter). Parallel Computational Fluid Dynamics 2003: Advanced Numerical Methods, Software and Applications, 2004.
Ivannikov, V.,Gaissaryan, S.,Avetisyan, A.,Padaryan, V. Improving properties of a parallel program in ParJava environment, Lecture Notes in Computer Science (including subseries Lecture Notes in Artificial Intelligence and Lecture Notes in Bioinformatics), 2003.
Ivannikov, V.,Gaissaryan, S.,Avetisyan, A.,Padaryan, V. Using symbolic execution of a parallel program to estimate its scalability, Proceedings of the International Conference on Parallel and Distributed Processing Techniques and Applications, 2003.
Ivannikov, V.P.,Kovalenko, N.S.,Metel'skii, V.M. On the minimal time required for execution of distributed concurrent processes in synchronous modes. Programming and Computer Software September 2000, Volume 26, Issue 5, pp 268-274.
Victor Ivannikov, Sergei Morozov, Vitaly Semenov, Oleg Tarlapan, Reinhard Rasche, Thomas Jung. Parallel object-oriented modeling and visualization in OpenMV environment.Proceedings of GraphiCon'99. Publisher: Dialog-MSU, 1999. Pp. 206-213.
Ivannikov V. P., Dyshlevoi K. V., Zadorozhnyi V. I. Specification of Metaextensions for Efficient Metaobject Control. Programming and Computer Software, No. 4, 1997.
Ivannikov V. P., Dyshlevoi K. V., Kamensky V. E., Klimov A. V., Manzgeley S. G., Omelchenko V. A., Solovskaya L. B., Vinokurov A. A. Distributed applications design and run time support in Cover Model.
Ivannikov V. P., Dyshlevoi K. V., Kamensky V. E., Klimov A. V., Manzgeley S. G., Omelchenko V. A., Solovskaya L. B., Vinokurov A. A. Cover Model: a Framework for Design and Execution for Distributed Applications.

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text:
FindACase | Lewis v. Ocwen Loan Servicing, Inc.
Lewis v. Ocwen Loan Servicing, Inc.
The Rule 12(b)(6) standard requires the Court to “assume the truth of the plaintiff's well-pleaded factual allegations and view them in the light most favorable to the plaintiff.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). Having assumed that truth, the dispositive inquiry then usually becomes “whether the complaint contains ‘enough facts to state a claim to relief that is plausible on its face.'” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This analysis assumes that the plaintiff's legal theory is recognized in law and that the only salient question is whether the asserted facts state a claim under that theory. However, some Rule 12(b)(6) motions raise the argument that “a legal theory [is] not cognizable as a matter of law.” Golan v. Ashcroft, 310 F.Supp.2d 1215, 1217 (D. Colo. 2004), aff'd sub nom. Golan v. Gonzales, 501 F.3d 1179 (10th Cir. 2007). That standard applies here.
Defendant's primary argument is that Plaintiffs cannot plead a negligence claim because they cannot establish a duty of care to, as Plaintiffs phrase it, “act reasonably when collecting an alleged debt . . . including the means and methods for contacting [debtors].” (ECF No. 25 ¶ 46.) Defendant has cited cases from the Colorado Court of Appeals, from this District, and from other jurisdictions. (ECF No. 34 at 4-7.) Plaintiffs have cited supposedly contrary federal district court cases not from this District. (ECF No. 42 at 3-4.) In other words, no party has cited anything controlling. Nor is any of the cited authority particularly helpful, as it largely deals with situations distinct from telephone harassment by debt collectors, or tort theories Plaintiffs have not pleaded (such as invasion of privacy).
The elements of a negligence claim consist of the existence of a legal duty by the defendant to the plaintiff, breach of that duty by the defendant, injury to the plaintiff, and a sufficient causal relationship between the defendant's breach and the plaintiff's injuries. A negligence claim will fail if it is predicated on circumstances for which the law imposes no duty of care upon the defendant. . . . The initial question in any negligence action, therefore, is whether the defendant owed a legal duty to protect the plaintiff against injury. The issue of legal duty is a question of law to be determined by the court.
A duty of reasonable care arises when there is a foreseeable risk of injury to others from a defendant's failure to take protective action to prevent the injury. While foreseeability is a prime factor in the duty calculus, a court also must weigh other factors, including the social utility of the defendant's conduct, the magnitude of the burden of guarding against the harm caused to the plaintiff, the practical consequences of placing such a burden on the defendant, and any additional elements disclosed by the particular circumstances of the case.
Connes v. Molalla Transp. Sys., Inc., 831 P.2d 1316, 1320 (Colo. 1992) (citations omitted).
Plaintiffs have not attempted to explain why they believe the Colorado Supreme Court would apply this analysis and conclude that debt collectors have a duty of care, enforceable through a negligence claim, encompassing the choice to engage in numerous harassing phone calls. To be sure, there may be other tort theories that encompass this alleged course of conduct, but Plaintiffs have given the Court no basis to think that the Colorado Supreme Court would approve a negligence cause of action based on Plaintiffs' allegations.

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text:
Pheobe Conger Allen's patriot grandfather, Joseph Conger (1758 -1842), found in New York!
Oneida County, to the berg of Sangerfield to see the Stockwell cemetery.
is pretty in the fall. Dad and I were ecstatic.
family. We exchanged photos, took photos and conversed the whole night.
Charlie in Austin and Lula's lap.
annum for his efforts in resisting the British in the Revolutionary War.
from the National Archive records).
had made connections with our shared families and to past generations.
The Conger trip to Washington DC was a trip into generations.
only the Conger Family of America but the Eggleston's of Michigan.
add this to your web site. Give them my e-mail address.
my proofs are well documented.
Enclosed is a text file of Pheobe Congers ancestors. Please review.
Ione Eggleston's genealogy I'll send you a copy. This is exciting news.
1. Pheobe Conger, born September 20, 1807 in New York; died August 20, 1883 in Allenton, Berlin Twnshp, St. Clair County, Michigan. She was the daughter of 2. Jesse Conger and 3. Delight Benedict. She married (1) Douglass Allen October 19, 1829. He was born April 05, 1807 in New York, and died September 03, 1850 in Armada, Michigan.
2. Jesse Conger, born October 21, 1784 in Dutchess County, New York; died April 10, 1866 in Armada, Michigan. He was the son of 4. Joseph Conger and 5. Pheobe Eggleston. He married 3. Delight Benedict.
3. Delight Benedict, born November 20, 1788 in Springfield, New York; died December 06, 1865 in Armada, Michigan.
1 i. Pheobe Conger, born September 20, 1807 in New York; died August 20, 1883 in Allenton, Berlin Twnshp, St. Clair County, Michigan; married Douglass Allen October 19, 1829.
ii. Alpheus Conger, born March 29, 1812 in Genesee County, N.Y.; died July 20, 1879 in Armada, Macomb, Michigan; married Harriet Holmes October 19, 1834 in Genesee County, N.Y; born March 28, 1820 in Genesee County, N.Y.; died September 11, 1894 in Armada, Michigan.
iii. Mary L Conger, born June 21, 1814.
iv. Jesse Conger, born 1818; died January 13, 1900 in Armada, Michigan; married Elizabeth G; born 1847.
v. Clark Conger, born January 17, 1821; died September 27, 1896 in Armada, Michigan; married Clarissa Russell; born April 10, 1838 in Gainesville, Wyoming, NY; died April 29, 1906 in Armada, MI.
vi. Samantha Conger, born June 10, 1823.
vii. Saphronia Conger, born April 05, 1826.
viii. Rosewell Conger, born February 05, 1829.
ix. Jeremiah Conger, born April 17, 1832.
x. Aaron Conger, born January 26, 1835; died December 27, 1894.
4. Joseph Conger, born March 07, 1758 in New Fairfield, Conn; died December 08, 1842 in Stockwell, Oneida, New York. He was the son of 8. Joseph Conger and 9. Hannah Pepper. He married 5. Pheobe Eggleston in North East Dutchess, New York.
5. Pheobe Eggleston, born February 24, 1762 in Northeast Dutchess County, NY; died April 14, 1833 in Stockwell, Oneida, New York. She was the daughter of 10. Samuel Eggleston and 11. Hester Buck.
2 i. Jesse Conger, born October 21, 1784 in Dutchess County, New York; died April 10, 1866 in Armada, Michigan; married Delight Benedict.
ii. Abel Conger, born May 08, 1786.
iii. Parley Conger, born August 06, 1788.
iv. John Conger, born August 23, 1790.
v. Roswell Conger, born September 21, 1793.
vi. Susan Conger, born February 29, 1796.
vii. Elijah Conger, born May 11, 1798.
viii. Cynthnia Conger, born June 13, 1800.
ix. Eunice Conger, born April 22, 1803.
x. Joseph Conger, born November 03, 1805.
8. Joseph Conger, born Abt. 1726 in Woodbridge, N.J.; died August 1820 in First Presbyterian Church, Newark, NJ. He was the son of 16. Joseph Conger and 17. Mary Marsh. He married 9. Hannah Pepper October 20, 1746 in Fisrt Presbyterian Church,New Fairfield,CT.
9. Hannah Pepper, died February 12, 1809 in First Presbyterian Church, Newark, NJ.
i. Joel Conger, born Abt. 1750; married Anna Hollister.
ii. Elijah Conger, born June 24, 1755; married Martha Leach in New Fairfield Connecticut.
iii. Hannah Conger, born Abt. 1758.
4 iv. Joseph Conger, born March 07, 1758 in New Fairfield, Conn; died December 08, 1842 in Stockwell, Oneida, New York; married Pheobe Eggleston in North East Dutchess, New York.
v. Ephraim Conger, born Abt. 1760.
vi. Ezra Conger, born Abt. 1762.
vii. Jessie Conger, born Abt. 1764.
viii. Abiah Conger, born Abt. 1766.
10. Samuel Eggleston, born August 17, 1738 in East Middltown, Middlessex, CT; died January 24, 1822 in Northeast Dutchess County, NY. He was the son of 20. Samuel Eggleston and 21. Abigail Bevin. He married 11. Hester Buck March 18, 1761 in North East Dutchess, New York.
11. Hester Buck, born Abt. 1742 in East Middltown, Middlessex, CT; died Abt. 1828.
5 i. Pheobe Eggleston, born February 24, 1762 in Northeast Dutchess County, NY; died April 14, 1833 in Stockwell, Oneida, New York; married Joseph Conger in North East Dutchess, New York.
ii. Elizabeth Eggleston, married Stephen Sherwood.
iii. Hester Eggleston, married Samuel Gilbert.
iv. Martha Eggleston, married Aaron Barnes.
v. Nicholas Eggleston, born November 08, 1768.
vi. David Eggleston, born 1771.
vii. Abigail Eggleston, born 1773; married Lemuel Case.
viii. Samuel Eggleston, born May 03, 1777.
ix. Eunice Eggleston, born May 1779; married John Darrow.
x. Susan Eggleston, born January 08, 1782; married Joseph Huntley.
xi. Kituarh Eggleston, married Brewster Jewett.
16. Joseph Conger, born May 17, 1692 in Woodbridge, N.J.. He was the son of 32. John Belconger and 33. Sara Cawood. He married 17. Mary Marsh in Woodbridge, N.J..
8 i. Joseph Conger, born Abt. 1726 in Woodbridge, N.J.; died August 1820 in First Presbyterian Church, Newark, NJ; married Hannah Pepper October 20, 1746 in Fisrt Presbyterian Church,New Fairfield,CT.
ii. John Conger, born Abt. 1726; died December 1767; married Sara Tuttle.
iii. Elizabeth Conger, born 1728; married John Baldwin.
iv. James Conger, born Abt. 1734.
20. Samuel Eggleston, born February 01, 1706 in Middletown, Hartford, CT; died January 19, 1784 in East Middletown, Middlessex, CT. He was the son of 40. Samuel Eggleston and 41. Patience Payne. He married 21. Abigail Bevin November 02, 1729 in Middletown, Hartford, CT.
21. Abigail Bevin She was the daughter of 42. Thomas Biven and 43. Martha.
10 i. Samuel Eggleston, born August 17, 1738 in East Middltown, Middlessex, CT; died January 24, 1822 in Northeast Dutchess County, NY; married Hester Buck March 18, 1761 in North East Dutchess, New York.
ii. John Eggleston, born February 09, 1731.
iii. Martha Eggleston, born August 26, 1733.
iv. Abigail Eggleston, born June 23, 1736.
v. Joseph Eggleston, born October 28, 1740; died January 25, 1822; married Mary Prosser March 18, 1761.
vi. Benjamin Eggleston, born March 23, 1743; died January 26, 1749.
vii. Prudence Eggleston, born September 22, 1745; married Ephriam Goss 1764.
viii. Nicholas Eggleston, born April 12, 1747; died June 10, 1853; married Polly Stewart April 26, 1771 in North East Dutchess, New York.
ix. Benjamin Eggleston, born December 26, 1749.
x. Amos Eggleston, born November 20, 1751.
32. John Belconger, born Abt. 1645 in Woodbridge, Middlesex county, New Jersey; died September 1712 in Woodbridge, N.J.. He was the son of 64. John Belconger and 65. Sarah. He married 33. Sara Cawood Bet. 1667 - 1689 in Woodbridge, N.J..
33. Sara Cawood, died in Woodbridge, N.J.. She was the daughter of 66. Thomas Cawood and 67. Rebecca Potter.
i. Abigail Conger, born 1690.
16 ii. Joseph Conger, born May 17, 1692 in Woodbridge, N.J; married Mary Marsh in Woodbridge, N.J..
iii. Job Conger, born June 19, 1694; died 1758; married Mary Keziah Thorp 1758.
iv. Rachael Conger, born May 12, 1696; married Thomas Cawood.
v. Lydia Conger, born April 28, 1698; married Robert Mitchell.
vi. Benjamin Conger, born 1700; married Experience Foord March 1762.
40. Samuel Eggleston, born March 06, 1663 in Weathersfield, Hartford, CT; died December 24, 1736 in East Middletown, Middlessex, CT. He was the son of 80. Samuel Eggleston and 81. Sarah Disborough. He married 41. Patience Payne August 07, 1703 in Weathersfield, Hartford, CT.
41. Patience Payne, born August 19, 1678 in Middletown, Hartford, CT; died Abt. 1749 in Guilford, New Haven, CT. She was the daughter of 82. John Payne and 83. Mary Hall Martin.
20 i. Samuel Eggleston, born February 01, 1706 in Middletown, Hartford, CT; died January 19, 1784 in East Middletown, Middlessex, CT; married Abigail Bevin November 02, 1729 in Middletown, Hartford, CT.
ii. Susannah Eggleston, born February 25, 1704 in East Middletown, Middlessex, CT.
iii. Abigail Eggleston, born March 11, 1708 in East Middletown, Middlessex, CT.
iv. John Eggleston, born August 15, 1714 in East Middletown, Middlessex, CT.
v. Joseph Eggleston, born October 24, 1716 in East Middletown, Middlessex, CT.
vi. Patience Eggleston, born October 18, 1719 in East Middletown, Middlessex, CT.
vii. Mercy Eggleston, born June 29, 1723.
42. Thomas Biven He married 43. Martha.
21 i. Abigail Bevin, married Samuel Eggleston November 02, 1729 in Middletown, Hartford, CT.
64. John Belconger, born June 25, 1625 in last male Belconger in Suffolk, England; died June 30, 1678. He was the son of 128. Antony Belconger and 129. Anne Beleconger. He married 65. Sarah.
65. Sarah, died July 10, 1676.
32 i. John Belconger, born Abt. 1645 in Woodbridge, Middlesex county, New Jersey; died September 1712 in Woodbridge, N.J; married (1) Mary Kelley April 12, 1666 in Newbury, Mass; married (2) Sara Cawood Bet. 1667 - 1689 in Woodbridge, N.J..
66. Thomas Cawood He married 67. Rebecca Potter.
33 i. Sara Cawood, died in Woodbridge, N.J; married John Belconger Bet. 1667 - 1689 in Woodbridge, N.J..
80. Samuel Eggleston, born 1620 in Strettington, York, England; died February 01, 1690 in Windsor, Hartford, Ct. He was the son of 160. Bygod Eggleston and 161. Mary Wall. He married 81. Sarah Disborough May 18, 1661 in Windsor, Hartford, CT.
81. Sarah Disborough, born 1642 in Weatherfield, Hartford, CT; died 1683. She was the daughter of 162. Nicholas Disbro and 163. Mary Bronson.
40 i. Samuel Eggleston, born March 06, 1663 in Weathersfield, Hartford, CT; died December 24, 1736 in East Middletown, Middlessex, CT; married Patience Payne August 07, 1703 in Weathersfield, Hartford, CT.
ii. Thomas Eggleston, born June 03, 1667; died 1667.
iii. Joseph Eggleston, born January 24, 1668; died 1668.
iv. Sarah Eggleston, born October 26, 1670; married Daniel Pryar.
v. Susannah Eggleston, born May 09, 1674; married Jobe Payne.
vi. Nicholas Eggleston, born October 24, 1676.
vii. Mary Eggleston, born 1678; married John Benton.
viii. Mercy Eggleston, born July 27, 1679; died 1751; married Samuel Miller.
ix. Ebenezer Eggleston, born July 07, 1684; married Mary Bennett June 26, 1711.
82. John Payne He married 83. Mary Hall Martin.
41 i. Patience Payne, born August 19, 1678 in Middletown, Hartford, CT; died Abt. 1749 in Guilford, New Haven, CT; married Samuel Eggleston August 07, 1703 in Weathersfield, Hartford, CT.
128. Antony Belconger, born 1590. He was the son of 256. William Belconger III and 257. Ann Ward. He married 129. Anne Beleconger.
129. Anne Beleconger, died July 13, 1668 in Erwarton, Suffolk, England.
64 i. John Belconger, born June 25, 1625 in last male Belconger in Suffolk, England; died June 30, 1678; married Sarah.
ii. Anne Belconger, born July 06, 1628.
160. Bygod Eggleston, born February 20, 1586 in Strettington, York, England; died September 01, 1674. He was the son of 320. James Eggleston and 321. Julianna Harker. He married 161. Mary Wall.
80 i. Samuel Eggleston, born 1620 in Strettington, York, England; died February 01, 1690 in Windsor, Hartford, Ct; married Sarah Disborough May 18, 1661 in Windsor, Hartford, CT.
ii. James Eggleston, born 1620; died December 01, 1679; married Hester Williams.
iv. Thomas Eggleston, born August 26, 1638 in Windsor, Hartford, Ct; died 1697.
v. Mercy Eggleston, born May 25, 1641; married John Deslow July 06, 1655.
vi. Sarah Eggleston, born March 28, 1643; married John Pettibone Jr February 16, 1664.
vii. Rebecca Eggleston, born August 12, 1644.
viii. Abigail Eggleston, born June 12, 1648; married John Osborn October 14, 1669.
ix. Joseph Eggleston, born March 10, 1651.
x. Benjamin Eggleston, born December 18, 1653; married Hannah Osborn June 03, 1678.
162. Nicholas Disbro, born 1612 in England; died August 31, 1683 in Weatherfield, Hartford, CT. He married 163. Mary Bronson.
163. Mary Bronson, born March 1622 in England. She was the daughter of 326. Roger Bronson and 327. Mary Underwood.
i. Mary Disborough, born 1641; married Obadiah Spencer 1665.
81 ii. Sarah Disborough, born 1642 in Weatherfield, Hartford, CT; died 1683; married Samuel Eggleston May 18, 1661 in Windsor, Hartford, CT.
iii. Hannah Disborough, born 1644; died October 1718; married John Kelley.
iv. Phebe Disborough, born 1646.
v. Abigail Disborough, born February 01, 1649; married Robert Flood Abt. September 1670.
256. William Belconger III, born 1544 in Norfolk, England; died 1601. He was the son of 512. William Belconger II. He married 257. Ann Ward.
257. Ann Ward She was the daughter of 515. Mary Spooner.
i. Jeffery Belconger, born 1584; died December 24, 1626 in Ufford.
ii. William Belconger IV, born 1586; died 1625; married Elizabeth; died March 16, 1626.
iii. John Belconger, born 1589; died 1653.
128 iv. Antony Belconger, born 1590; married (1) Elizabeth; married (2) Anne Beleconger.
320. James Eggleston, born February 20, 1586 in Strettington, York, England; died September 01, 1674 in Strettington, York, England. He was the son of 640. Eggleston. He married 321. Julianna Harker.
321. Julianna Harker, born Abt. 1565; died January 08, 1636.
160 i. Bygod Eggleston, born February 20, 1586 in Strettington, York, England; died September 01, 1674; married (1) Mary Wall; married (2) Mary Talcott.
326. Roger Bronson He married 327. Mary Underwood.
163 i. Mary Bronson, born March 1622 in England; married Nicholas Disbro.
512. William Belconger II, born 1500; died 1563. He was the son of 1024. William Belconger I.
i. Joana Belconger, married William Holmes.
ii. Kathryn Belconger, married John Mollett.
iii. Mary Belconger, married John Kibard.
256 iv. William Belconger III, born 1544 in Norfolk, England; died 1601; married Ann Ward.
257 i. Ann Ward, married William Belconger III.
640. Eggleston, born 1535 in Strettington, York, England.
320 i. James Eggleston, born February 20, 1586 in Strettington, York, England; died September 01, 1674 in Strettington, York, England; married Julianna Harker.
1024. William Belconger I, born 1478; died 1522. He was the son of 2048. Robert Belconger and 2049. Agnes Cove.
512 ii. William Belconger II, born 1500; died 1563.
2048. Robert Belconger, born 1445; died 1503. He was the son of 4096. Henry Belkunger. He married 2049. Agnes Cove.
1024 i. William Belconger I, born 1478; died 1522.
2048 i. Robert Belconger, born 1445; died 1503; married Agnes Cove.

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