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The Complainants: Celine Dion and Sony Music Entertainment (Canada) Inc., both of 1121 Leslie Street, Toronto, M3C 2J9, Canada.
The Respondent: Jeff Burgar, operating or carrying on business as Celine Dion Club, PO Box 2570, 4901 51st Avenue, High Prairie, Alberta, T0G 1EO, Canada.
The domain name in issue is <celinedion.com>, registered with Network Solutions, Inc, of Herndon, Virginia, USA, on March 6, 1995.
(1) The Complaint in Case D2000-1838 was filed on December 28, 2000 and was notified to the Respondent on January 10, 2001.
(4) The Respondent has subsequently drawn my attention to the recent decision in Case No. D2000-1532, Springsteen v. Burgar. The case being a matter of public record, it is proper for a party to draw the Panel's attention to it at any stage before submission of the Panel's Decision. After submission of the present Decision to the WIPO Mediation and Arbitration Center for final formatting, the Center received a further request from the Respondent to submit arguments criticising my Decision in Case D 2000-1628, Julie Brown v. Julie Brown Club. The Respondent was in substance the Respondent in that case, the facts in both bear striking similarity and, in my opinion, the issues of interpretation of the UDRP raised by those facts are the same. Accordingly, the Repondent's request seeks to reopen with me the decision which I reached in Case D 2000-1628 and which, as will be seen below, I have considered to be equally correct in the present case. The UDRP paragraph 4(K) provides that any such decision is subject to the institution of proceedings in a prescribed court. There is thus a mechanism available for the overturning of a Panel decision. It is that course which it is appropriate for the Respondent to follow in the present dispute if he wishes to challenge my Decision.
(5) The date scheduled for issuance of a decision is: February 21, 2001.
The first Complainant is extremely well-known by her given name, Celine Dion, as a top-selling performing artist of pop music, with numerous albums to her credit, certifications indicating the very large numbers of sales achieved and awards that attest to her fame.
The second Complainant has an exclusive recording contract with the first Complainant. In consequence, it holds in trust for her ten domain names through which it runs the official Celine Dion Website. These include <celindion.com> and <celinedeon.com>. This Website is used by the second Complainant inter alia to sells "Celine Dion" merchandise, on which the first name is written in cursive script and the surname in capital letters. The same format has been used on two of her albums, while the name appears in a variety of scripts on the others.
The registrant of the domain name in suit is "Celine Dion Fan Club" at an address now given as that of Mr. Jeff Burgar.
- that the domain name in dispute is identical to the "Celine Dion" famous name and trade mark, which were extremely well established in association with CD music recordings, videos, live performances and other merchandise, well before the Respondent first registered the domain name in suit on March 16, 1997.
- that the Respondent has not, since securing registration of the domain name in dispute in 1999, used the Celine Dion trade marks or any variant thereof with any legitimate offering of wares or services, has no public reputation or association with those marks and has not become commonly known by them.
- that no bona fide business is being conducted by the named Registrant, "Celine Dion Club", which amounts only to an operating name for the Respondent, Jeff Burgar, the address now given for the Club being his. Previously an address for the Club at 1350 East Flamingo Road, #57, Las Vegas, Nevada, 89119, USA, proved, on investigation, not to exist.
- that when first approached in October 1997 about his domain name registration, Mr Burgar stated to the Complainants' legal representative that he would relinquish the registration, but not without "negotiating." A later letter, of June 12 2000, seeking transfer of the domain name in return for payment of Mr. Burgar's out-of-pocket expenses, went unanswered.
- that the Respondent, Mr. Burgar, pursues a pattern of behaviour in which he registers famous trade marks as domain names under the ownership of a "Club" with the same name as the trade mark, as is attested by the judgments in the cases, T-768-98 Canada Post Corporation v. Burgar, Federal Court of Canada, May 15, 1998; and NAF Case 0002000093564, Hewlett-Packard Company v. Burgar; and also by registrations using the names of a famous country music artist and famous American actors.
- that the Respondent deliberately registered the domain name in suit for the purpose of attracting Internet users to his <Celebrity1000> website for commercial purposes.
- that the Respondent made non-commercial and fair use of the name, which did not produce confusion with the Complainants nor any tarnishing of Ms. Dion's name.
The Complainants are justified in identifying the Respondent as Jeff Burgar, operating or carrying on business as Celine Dion Club. The Response at various points identifies Mr. Burgar as the Respondent.
(2) Requirement that the Domain Name in dispute is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights.
The UDRP posits this requirement as the initial threshold which the Complainant must satisfy. The requirement defines the condition under which there is a potential conflict of interests between the Complainant as a trade mark holder and the Respondent as a Domain Name registrant. It does not, of itself, entitle the Complainant to any relief. That will happen only when the Respondent is shown to be acting, or to have acted, in bad faith, and when, in all the circumstances, the Respondent has not demonstrated rights and legitimate interests in the Domain Name.
"People have reasonable expectations when they buy a car, a music CD, a soft drink, a newspaper or a magazine. If the car says "Ford" on it, they expect it to actually be a Ford. If the CD says "The Beatles" on it, they expect it to be a CD of their work. If the soft drink says "Coca-Cola" they do not expect beer."
Equally, as the passage points out at length, such words can be used in descriptive ways.
The Policy requires the Panel to consider, first, whether the Complainant has rights in a relevant trade mark; and, secondly, whether the Domain Name is the same as, or is confusingly similar to, that mark.
It has been accepted in a succession of UDRP decisions that authors and performers may have trade mark rights in the names by which they have become well-known: notably Case D2000-0235, Winterson v. Hogarth; D2000-0210, Roberts v. Boyd; D2000-0598, Marino v. Video Images Productions; D2000-0794, Adu (Sade) v. Quantum Computer Services. The majority of the Panel in Case D2000-1532, Springsteen v. Burgar has cast doubt on this view, but their dictum is in no way necessary to their Decision and I have not accepted it in deciding Case D2000-1628, Julie Brown v. Julie Brown Club. Authors and performers can establish trade mark rights either by showing that they have registered their names as marks for certain goods or services, or because, through deployment of the names as source indicators in commerce, they have unregistered or "common law" rights to protection against misleading use. The Respondent's example of a Beatles CD is a case in point. Such use amounts to unfair competition of the kind defined in the Paris Industrial Property Convention, Article 10bis. As was, for instance, accepted long ago by the English Court of Appeal, in order to protect the copyright in a work, its author must have an action against passing off so as to prevent false attribution: see Samuelson v. Producers Distributing (1932) 48 RPC 580. A defendant cannot be permitted to supply goods or put on performances which the consuming public are led to believe consist of the author's work when they consist of a substitute. The same must apply to the rights related to copyright which performers enjoy in their performances in many countries, and video-makers enjoy in their products.
While the Complainants in this case have not yet registered Ms. Dion's name as a trade mark, it is clear that her fame as a performing artist establishes the kind of reputation which can warrant protection against passing off. There is much in the course of the Response which shows acceptance of the view that the Complainant has, in her career, attained the status of a celebrity.
The Domain Name, <celinedion.com>, falls to be treated as the same as the Complainant's name, since it is well settled that the addition of the gTLD suffix makes no essential difference. Accordingly, in the practice of incorporating the names of famous performers into domain names, which the Respondent admits to having done in 75 cases, Complainants have satisfied the requirements of the initial threshold.
The Complainants' allegations of bad faith relate to the UDRP, Paragraph 4(b)(i),(ii) and (iv). As to the first of these (acquiring in order to transfer for more than expenses), there is only ambivalent and contested evidence that the Respondent sought payment for the transfer or rental of the domain name. This ground is therefore note made out.
Paragraph 4(b)(ii) concerns the case where a respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that he has engaged in a pattern of such conduct.
Here the Respondent seeks to deflect the Complainants' submission that they have shown this form of bad faith by pointing out that the registration of the star's name plus .com does not preclude her from obtaining a great many other gTLD registrations, and indeed the second Complainant has done just that. The question is thus what is meant by the phrase "reflecting the mark in a corresponding domain name" and above all what is meant by "a". Does "a" mean "any", or does it mean "a particular"? If the meaning is the former, as the Respondent asserts, then this form of bad faith can scarcely ever be established. There are many choices of suffix, just as there are of variations in hyphenation, spelling, added words and so on. On the Respondent's construction, there would only be bad faith if the domain squatter had sought to register them all.
As I have already decided in Decision D2000-1628, Julie Brown v. Julie Brown Club, the Policy cannot have been drafted with such a narrow intent. I therefore differ from the opinion on this matter taken by the Majority in the Decision D2000-1532, Springsteen v. Burgar. As that Majority noted, their own view represents a departure from previous decisions. It has been clearly demonstrated, partly through the Respondent's admissions, that he obtained a succession of celebrity .com domain names, and this gives rise to an evident pattern of conduct in which he stockpiled similar registrations. These prevented the celebrities concerned from securing the straightforward .com registration for their name as it is correctly spelled. They, therefore, could not reflect their mark in that particular corresponding domain name. Such conduct falls within the form of bad faith identified in the UDRP, Paragraph 4(b)(ii).
As to the form of bad faith covered by the UDRP, Paragraph 4(b)(iv), there are two actual instances of others seeking to use the domain name in suit as a link to the official Celine Dion site. The Respondent's explanation of one of these as the result of an honest mistake does not demonstrate that there was no confusion, and he does not deny the other case. Contrary to his lengthy arguments that a domain name address is or must be understood by users as no more than an indication that something about the named person will be found, this evidence suggests that by no means all users treat domain name listings solely in this way. As is found in the dissenting opinion in D2000-1532, Springsteen v. Burgar, it is particularly likely that an address which is the proper spelling of an artist's name in the .com gTLD will be treated by some as pointing to an official site. So long as the link was to <Celebrity1000> it is far from clear that a person visiting that site would be disabused of any connection with the Complainants. That was the case at least until a few days before the complaint was submitted. But he offers no explanation of when this change occurred and it is unclear exactly why it was made. I accordingly find that this form of bad faith has arisen in the circumstances.
Paragraph 4(c) of the UDRP lists specific (but non-exclusive) circumstances which will entitle the Respondent to retain the Domain Name in issue. Where these circumstances arise, the Respondent is entitled to retain its name without qualification and, in a sense, these rights or legitimate interests override findings of bad faith. But in practical terms they must be read as the opposites of what constitutes bad faith. They are, moreover, grounds which it is for the Respondent to establish sufficiently.
The Respondent claims the protection of Paragraph 4(c)(i), i.e. that it was using the domain name, before notice of the dispute, for a bona fide offering of goods or services. It relies upon the services available at <Celebrity1000>, but is, at the same time, stating that at some recent point in time it has felt it necessary to establish The Unauthorised Celine Dion Site instead. The Complainants assert that the connection is to <Celebrity1000>, a site which simply allows users to vote for their favourite stars. Thus, the Respondent has failed to provide sufficient evidence under this head. As to the reliance on Paragraph 4(c)(ii), it is unclear in what way it can be said that it has been commonly known by the domain name since, until very recently, the name acted purely as a pointer to <Celebrity1000>.
The Respondent also relies on Paragraph 4(c)(iii), viz, that he is making a legitimate non-commercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue. The interpretation of this justification calls for careful attention, since it consists of a positive requirement and (from "without intent" onwards) an exclusionary statement. First, it requires that the Respondent prove legitimate non-commercial or fair use of the domain name; then it states that no such use could arise where, for commercial gain, consumers are misleadingly diverted or the mark is tarnished. It does not say, that any use (let alone failure to use) is justified where the second exclusionary statement is not established. It is for the Panel to decide whether, in all the circumstances, the Respondent has sufficiently established a case of legitimate non-commercial or fair use of the domain name.
The Complainants have asserted that the Respondent uses the domain name only to point to <www.celebrity1000.com> where users can vote for their favourite star. The Respondent admits that he owns 75 celebrity names and that the <Celebrity1000> site carried advertising of some kind. He demonstrates that <www.celinedion.com> now points to "The Unauthorized Celine Dion Web Site." As already pointed out, the Respondent does not explain when or why the change was made, or whether similar treatment has been applied to all or any of the Respondent's other similar sites.
Is this course of conduct, so far as it has been explained, to be characterised as legitimate non-commercial or fair use of the domain name? So long as the admitted bunch of celebrity domain names were all directed to the <Celebrity1000> site, the Respondent's conduct must be characterised as a stock-piling of leading artistes' names, their only substantial function then being to attract people to view advertising on the site. The Respondent asserts that he has been accumulating such names in order to develop fan-club websites for them, but that it has taken time to set up these sites. So long as this remained only an intention it could not in itself amount to a use. Nor could any such use be substantiated by the fact that the registration was made (as in the present instance) in the name of a Fan Club bearing the celebrity's name, when there was no evidence of the Club having any substantial existence.
Even if undertaken in due time, can the severing of the link to <Celebrity1000> and the establishment of The Unauthorized Celine Dion Site alter the situation? Respondents who have engaged in use of a domain name which does not amount to legitimate use must expect to bear a substantial burden when they seek to demonstrate that their changed activity has acquired this character. Are they not seeking merely to achieve their previous position by less transparent means? In this case, is the Respondent not seeking to retain a stockpile of celebrity domain names? The circumstances are that there is trade-marking potential in those names. Accordingly, he (as the Respondent's operator) must demonstrate positively a legitimate interest in retaining them, as for instance by providing an established fan club or, for that matter, a site for criticism or satire. It is for him to show that the new use of the site is substantial and genuine, rather than merely a colourable continuation of his former stockpiling activity. Given the successive ways in which this registration has been employed, I am completely unsatisfied that he has made out any sufficient justification under Paragraph 4(c)(iii).
In support of his demonstration of rights and legitimate interests, the Respondent also asserts in general terms that he has common law rights from two years use of the domain name; that his use of the domain name is legitimate; that he has kept the domain name in good financial repair; and that because his business is in building websites he has a legitimate interest in registering domain names for future development. In large measure these are mere repetitions of assertions made under the specific heads of the Policy. It is hard to detect any other element in these claims which could possibly override my view that the registration in suit was made and maintained in bad faith.
The Panel accordingly requires that the domain name,<celinedion.com>, be transferred to the Complainant.

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37 C.F.R. 1.313 Withdrawal from issue.
(a) Applications may be withdrawn from issue for further action at the initiative of the Office or upon petition by the applicant. To request that the Office withdraw an application from issue, applicant must file a petition under this section including the fee set forth in § 1.17(h) and a showing of good and sufficient reasons why withdrawal of the application from issue is necessary. A petition under this section is not required if a request for continued examination under § 1.114 is filed prior to payment of the issue fee. If the Office withdraws the application from issue, the Office will issue a new notice of allowance if the Office again allows the application.
(4) For interference or derivation proceeding.
(3) Express abandonment of the application. Such express abandonment may be in favor of a continuing application.
(d) A petition under this section will not be effective to withdraw the application from issue unless it is actually received and granted by the appropriate officials before the date of issue. Withdrawal of an application from issue after payment of the issue fee may not be effective to avoid publication of application information.
If the applicant wishes to have an application withdrawn from issue, he or she must petition the Director under 37 CFR 1.313(a) or file a request for continued examination (RCE) under 37 CFR 1.114 with a submission and the fee set forth in 37 CFR 1.17(e). A submission may be an information disclosure statement (37 CFR 1.97 and 1.98 ) or an amendment. The RCE practice does not apply to utility or plant applications filed before June 8, 1995 and design applications. See MPEP § 706.07(h), subsections I, II and IX. If an applicant files a RCE (with the fee and a submission), the applicant need not pay the issue fee to avoid abandonment of the application. Applicants are cautioned against filing a RCE prior to payment of the issue fee and subsequently paying the issue fee (before the Office acts on the RCE) because doing so may result in issuance of a patent without consideration of the RCE (if the RCE is not matched with the application before the application is processed into a patent).
Petitions under 37 CFR 1.313(a) to have an application withdrawn from issue should be directed to the Technology Center (TC) Director to which the application is assigned (see MPEP § 1002.02(c)). Unless applicant receives a written communication from the Office that the application has been withdrawn from issue, the issue fee must be timely submitted to avoid abandonment.
Applicant may also file a continuing application on or before the day the issue fee is due and permit the parent application to become abandoned for failure to pay the issue fee (35 U.S.C. 151).
Once the issue fee is paid, withdrawal is permitted only for the reasons stated in 37 CFR 1.313(c). The status of the application at the time the petition is filed is determinative of whether the petition is considered under 37 CFR 1.313(a) or 37 CFR 1.313(c). Petitions under 37 CFR 1.313(c) to have an application withdrawn after payment of the issue fee should be directed to the Office of Petitions (see MPEP § 1002.02(b)).
In addition to the specific reasons identified in 37 CFR 1.313(c)(1) -(3) applicant should identify some specific and significant defect in the allowed application before the application will be withdrawn from issue. A petition under 37 CFR 1.313(c) based on the reason specified in 37 CFR 1.313(c)(2) can only be filed in utility or plant applications filed on or after June 8, 1995 because the request for continued examination (RCE) practice does not apply to these types of applications filed before June 8, 1995 and design applications. See MPEP § 706.07(h), subsections I and IX. Such a petition under 37 CFR 1.313(c)(2) along with the petition fee set forth in 37 CFR 1.17(h) must include a request for continued examination in compliance with 37 CFR 1.114 (e.g., a submission and the fee set forth in 37 CFR 1.17(e)). The continued prosecution application (CPA) practice under 37 CFR 1.53(d) only applies to design applications. See MPEP § 201.06(d). To withdraw from issue a utility or plant application, an applicant may wish to file a petition under 37 CFR 1.313(c)(2) with a RCE or under 37 CFR 1.313(c)(3) for the express abandonment of the application in favor of a continuing application under 37 CFR 1.53(b).
(D) filed via EFS-Web as an ePetition.
Applicants are strongly advised to use EFS-Web, transmit by facsimile or hand-carry the petition to the Office of Petitions to allow sufficient time to process the petition and if the petition can be granted, withdraw the application from issue. While a petition to withdraw an application from issue may be granted as late as one day prior to the patent issue date, to avoid publication and dissemination, the petition decision must be granted at least 3 weeks prior to the issue date.
The Office cannot ensure that any petition under 37 CFR 1.313(c) will be acted upon prior to the date of patent grant. See Filing of Continuing Applications, Amendments, or Petitions after Payment of Issue Fee, Notice, 1221 Off. Gaz. Pat. Office 14 (April 6, 1999). Since a RCE (unlike a CPA under 37 CFR 1.53(d)) is not any type of new application filing, the Office cannot grant a petition to convert an untimely RCE to a continuing application under 37 CFR 1.53(b). Therefore, applicants are strongly cautioned to file any desired RCE prior to payment of issue fee. In addition, applicants considering filing a RCE after payment of the issue fee are strongly cautioned to call the Office of Petitions to determine whether sufficient time remains before the patent issue date to consider (and grant) a petition under 37 CFR 1.313(c) and what steps are needed to ensure that a grantable petition under 37 CFR 1.313(c) is before an appropriate official in the Office of Petitions in sufficient time to grant the petition before the patent is issued.
Once a petition under 37 CFR 1.313(c)(1) or (c)(2) has been granted, the application will be withdrawn from issue, the applicant’s submission(s) will be entered, and the application forwarded to the examiner for consideration of the submission and further action. If an application has been withdrawn from issue after the payment of the issue fee and the application is again found allowable, see MPEP § 1306 regarding request to reapply a previously paid issue fee toward the issue fee that is now due in the same application.
The Director may withdraw an application from issue under 37 CFR 1.313 on his or her own initiative. See BlackLight Power Inc. v. Rogan, 295 F.3d 1269, 1273, 63 USPQ2d 1534, 1537 (Fed. Cir. 2002) (USPTO may withdraw a patent application from issuance after the issue fee has been paid.) and Harley v. Lehman, 981 F. Supp. 9, 12, 44 USPQ2d 1699, 1702 (D.D.C. 1997) (adoption of 37 CFR 1.313(b) permitting applications to be withdrawn from issue under certain narrow circumstances not directly covered by the statute was not unreasonable). 35 U.S.C. 151 provides that upon payment of the issue fee, "the patent shall issue." Thus, an application cannot be withdrawn from issue after payment of the issue fee consistent with 35 U.S.C. 151 unless there has been a determination that at least one of the conditions specified at 37 CFR 1.313(b)(1) through (4) exist such that the applicant is no longer "entitled to a patent under the law" as provided in 35 U.S.C. 151. See BlackLight Power Inc. v. Rogan, 295 F.3d at 1273, 63 USPQ2d at 1537 (Fed. Cir. 2002) (USPTO is not required to make final determination of unpatentability before withdrawing an application from issue pursuant to 37 CFR 1.313(b)(3), which permits the Office to withdraw an application after payment of the issue fee on ground of "unpatentability of one or more claims."); Harley v. Lehman, 981 F. Supp. at 11-12, 44 USPQ2d at 1701-02 (D.D.C. 1997) (Commissioner may adopt rules permitting applications to be withdrawn from issue after payment of the issue fee in situations in which the applicant is not entitled to a patent under the law); and see Sampson v. Dann, 466 F. Supp. 965, 973-74, 201 USPQ 15, 22 (D.D.C. 1978)(Commissioner not authorized to withdraw an application from issue after payment of the issue fee on an ad hoc basis, but only in situations which meet the conditions of 37 CFR 1.313(b) ).
The authority to withdraw an application from issue at the initiative of the USPTO after payment of the issue fee under 37 CFR 1.313(b) has been delegated to TC Directors (see MPEP § 1002.02(c)). The Office of Petitions has also been delegated the authority to withdraw an application from issue after payment of the issue fee in those situations in which the request for withdrawal from issue is at the initiative of the USPTO by someone other than a TC Director (see MPEP § 1002.02(b)).
(4) for interference or derivation.
(C) to permit the applicant to file a continuing application (including a CPA).
An application may be removed from the Office of Data Management, without it being withdrawn from issue under 37 CFR 1.313(b), to permit the examiner to consider an information disclosure statement or whether one or more claims are unpatentable, see MPEP § 1309.02. Only if such consideration results in a determination that one or more claims are unpatentable does 37 CFR 1.313(b) authorize the application to be withdrawn from issue. If uncertainty exists as to whether prosecution will in fact be re-opened, the uncertainty must be resolved before the application is withdrawn from issue. If there is a question whether an application must be withdrawn from issue and no TC Director is available to decide whether withdrawal from issue is appropriate and to sign the withdrawal Notice, the application should be sent to the Office of Petitions for decision on whether withdrawal from issue is appropriate and to effect the withdrawal.
Any notice withdrawing an application from issue after payment of the issue fee must specify which of the conditions set forth in 37 CFR 1.313(b)(1) through (4) exists and thus warrants withdrawal of the application from issue. Any petition under 37 CFR 1.181 to review the decision of a TC Director to withdraw an application from issue after payment of the issue fee will be decided by the Deputy Commissioner for Patent Examination Policy.
If an application has been withdrawn from issue after the payment of the issue fee and the application is again found allowable, see MPEP § 1306 regarding request to reapply a previously paid issue fee toward the issue fee that is now due in the same application.
The procedure set forth below is to be followed when a TC Director withdraws an application from issue. This processing is to be done in the Technology Center without the need to send the application to the Office of Data Management.
First, determine (via PALM) whether the issue fee has been paid, and whether the application has been assigned a patent number and issue date.
(A) Prepare and mail a "Withdrawal from Issue" letter signed by the TC Director to the applicant to effectuate the withdrawal from issue, using form paragraph 10.01. This action will change the status of the application to status code 066 (Previous Action Withdrawn - Awaiting Further Action) and enter the Withdrawal from Issue letter in the application file and make it of record on the application file contents and forward the application to the examiner for prompt appropriate action (e.g., reopen prosecution, initiate interference proceedings).
The purpose of this communication is to inform you that the above identified application is being withdrawn from issue pursuant to 37 CFR 1.313.
The application is being withdrawn to permit reopening of prosecution. The reasons therefor will be communicated to you by the examiner.
U.S. Patent and Trademark Office records reveal that the issue fee and the publication fee have not been paid. If the issue fee and the publication fee have been submitted, the applicant may request a refund, or may request that the fee be credited to a deposit account. However, applicant may wait until the application is either again found allowable or held abandoned. If the application is allowed, upon receipt of a new Notice of Allowance and Fee(s) Due, applicant may request that the previously submitted issue fee and publication fee be applied toward payment of the issue fee and publication fee in the amount identified on the new Notice of Allowance and Fee(s) Due. If the application is abandoned, applicant may request either a refund or a credit to a specified Deposit Account.
The application is being forwarded to the examiner for action.
1. This letter is printed with the USPTO letterhead and must be signed by the TC Director.
2. DO NOT use this form letter if the issue fee and publication fee have been paid.
3. In bracket 7, insert the correspondence address of record.
(A) Prepare a "Notice of Withdrawal From Issue under 37 CFR 1.313(b) " indicating that the application has been withdrawn from issue.
(1) E-mail the memorandum to the Director of the Office of Data Management and the persons copied on the memorandum to inform them that the application has been withdrawn from issue.
(2) The "Notice of Withdrawal From Issue under 37 CFR 1.313(b) " letter to applicant must be signed, date stamped, and mailed no later than the Monday before the issue date to be effective to withdraw the application from issue.
(3) The Office of Data Management updates the PALM status to remove the patent issue data and place the application in status 95.
(C) Mail and enter the "Notice of Withdrawal From Issue under 37 CFR 1.313(b) " and the "Withdrawal from Issue of" memorandum, if applicable, in the application file and make it of record on the application file contents, which will update the PALM status code to change the status of the application to status code 066 (Previous Action Withdrawn - Awaiting Further Action) by using PALM transaction code 1040.
(D) Forward the application to the examiner for prompt appropriate action (e.g., reopen prosecution, initiate interference proceedings).
When an application is withdrawn from issue, either at the initiative of the applicant or by the Office, and the application contains an examiner’s amendment, the claims as amended by the examiner’s amendment are the claims subject to further examination.


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Revocation of probation of an alcohol dependent person because he consumed alcohol or because of alcohol related offenses for which he was convicted does not constitute cruel and unusual punishment in violation of the Constitution. FSM v. Phillip, 5 FSM Intrm. 298, 300 (Kos. 1992).
Even if the defendant had been arrested merely for drinking alcohol the Court would be compelled to return him to prison because the no-drinking condition had been imposed before the Court became aware of the defendant's alcohol dependent condition and because compliance with that condition is fundamental to a proper probation. FSM v. Phillip, 5 FSM Intrm. 298, 300-01 (Kos. 1992).
While the Court is interested in the rehabilitation of a defendant, its greater interest is in protecting society at large from illegal conduct. When a court releases convicted person on probation, it does so at its own discretion. Probation is a leniency granted by the Court. It is not a right and revocation of probation should not be thought of as additional punishment. FSM v. Phillip, 5 FSM Intrm. 298, 301-02 (Kos. 1992).
The issue of whether a defendant actually broke the law or that his arrest was unconstitutional is beyond the scope of a probation revocation hearing. The issues of whether a conviction is valid and constitutional should be taken to the appropriate court of appeals. FSM v. Phillip, 5 FSM Intrm. 298, 302 (Kos. 1992).
A parole revocation hearing is significantly different than a trial. Although a court may not act capriciously in revoking probation, there is no need to establish beyond a reasonable doubt that the terms of the probation have been violated. A court may revoke probation if it is reasonably satisfied that the terms of the probation were violated. FSM v. Phillip, 5 FSM Intrm. 298, 302-03 (Kos. 1992).
On March 18, 1992, a hearing was held to determine if the probation of Cancilin Phillip should be revoked. The hearing was scheduled in response to a petition filed by the Justice Ombudsman of Kosrae State. Mr. Phillip, while on conditional probation, twice violated the terms of that probation by committing two separate criminal acts. Mr. Phillip was convicted of consuming alcoholic beverages without a drinking permit in violation of Kosrae Code 13.517(2) and of being drunk and disorderly in violation of Kosrae Code 13.504. Both of these convictions indicate that Mr. Phillip also violated a second condition of his probation which stipulates that he shall not consume any alcohol while on probation.
On the day of the March 18 hearing, counsel for the defendant filed a brief in opposition to the revocation of probation. In the interest of justice and to allow this Court to consider all of the relevant issues thoroughly, the government was given until March 31, 1992 to file a response to defendant's brief. Defendant was then given until April 3, 1992 to file a reply. After considering the arguments made at the March 18 hearing and reviewing all of the briefs, this Court concludes that the probation of Cancilin Phillip should be temporarily revoked and that he should be returned to prison for a period of two months.
Defendant first argues that he is alcohol dependent and that revoking his probation because he consumed alcohol would be unjust. Defendant has submitted a letter from Dr. Lance Dale in which Dr. Dale states that Mr. Phillip is alcohol dependent. (Attached as exhibit A to defendant's brief in opposition.) Defendant argues that revoking his probation because he consumed alcohol or because of the alcohol related offenses for which he has been convicted is, in effect, punishing him for actions over which he has no control. He argues that this would constitute cruel and unusual punishment in violation of the Constitution of the Federated States of Micronesia. This Court disagrees.
If this were a case where the defendant had been arrested merely for consuming alcohol, the defendant's argument would cause this Court some concern. Even in such a case, however, this Court would feel compelled to return Mr. Phillip to prison for the violation of his probation restrictions. This is so for two reasons. First, the sentence was handed down and the conditions imposed before the Court became aware of Mr. Phillip's condition. Thus, the Court did not knowingly impose a condition upon the defendant which he was predestined to violate.
in cases where an issue before this Court has not been addressed by the case law of the FSM and cannot be resolved by the customary or traditional laws of Micronesia, it is appropriate to turn to the case law of the United States and of other jurisdictions for guidance. Semens v. Continental Airlines, Inc. (I), 2 FSM Intrm. 131, 140-41 (Pon. 1985). In Oyler, the Idaho Supreme Court stated that it would be unjust to require a person who is known to be addicted to alcohol to abstain from drinking as a requirement of his probation. Oyler, 436 P.2d at 712. As previously stated, however, this Court did not know of Mr. Phillip's condition at the time of sentencing. Further, Mr. Phillip was apparently unaware of his illness. He did not object to the condition at the time of his sentencing or at the time of his release on probation.
Second, as the court in Oyler recognized, even if it is impossible for the convicted person to abstain from drinking alcohol, if compliance with that condition is fundamental to a proper probation, the court may revoke the probation. Id. at 713. This Court has an obligation to the community it serves. If this Court were, as Mr. Phillip suggests, to remove the requirement that he abstain from alcohol and then allow his probation to continue, the Court would be placing the community at risk. The reason this Court regularly requires probationers to abstain from consuming alcohol is an obvious one. Young people in Micronesia, as in other parts of the world, have tendency to get in trouble and to break the law while under the influence of alcohol.
This Court is interested in the rehabilitation of Mr. Phillip. Its greater interest, however, is in protecting society at large from illegal conduct. Mr. Phillip's probation conditions are intended to insure that society at large does not suffer because of Mr. Phillip's probation. It is important to remember that Mr. Phillip was convicted of sexual assault and had his freedom restricted for a period of five years. When this Court releases convicted persons on probation, it does so at its own discretion. Probation is a leniency granted by the Court. Mr. Phillip, therefore, was not convicted because of his status as an alcohol dependent and is not being punished because of his status.
Assuming that Mr. Phillip is alcohol dependent and has, as he asserts in his briefs, no control over his actions, this Court would be derelict in its duty to the citizens of this country if it were to simply allow Mr. Phillip his freedom without first obtaining some assurance that Mr. Phillip will behave himself. If this Court simply removes the abstention provision and then requires Mr. Phillip to attend Alcoholics Anonymous meetings, the Court will be left with no recourse should Mr. Phillip stop attending the meetings and begin drinking. With this in mind, the abstinence condition shall remain in effect and Mr. Phillip, as outlined in this Court's April 8, 1992 order, will be encouraged to participate in a self help program for alcoholics.
require Mr. Phillip to abstain from alcohol and to encourage him to attend AA meetings while he is on probation. Again, probation is an act of leniency by the Court. It is not a right and the revocation of probation should not be thought of as additional punishment. In this case, the conditions of the probation serve Mr. Phillip as well as the community at large.
Aside from his consumption of alcohol, Mr. Phillip violated the terms of his probation by breaking the laws of Kosrae State. Mr. Phillip was convicted of two separate offenses. Based on these convictions alone, this Court is justified, and indeed obligated, to revoke the probation. Even is this Court accepted the defendant's argument that his probation should not be revoked because of his drinking, which it does not, these convictions are much more damaging to his cause. It is one thing to be unable to control one's desire to consume alcohol and be driven by these desires to drink. It is another thing entirely to drink in a public place in an illegal and disorderly manner. The convictions are, therefore, a separate and legitimate ground on which the probation should be revoked.
Finally, counsel for Mr. Phillip argues that this Court erred by refusing to allow certain witnesses to be examined at the revocation hearing. Counsel argues that this refusal violated Mr. Phillip's due process rights. This Court disagrees.
Pursuant to this Court's Rules of Criminal Procedure, Mr. Phillip was granted an opportunity to present evidence and witnesses for the purpose of disputing the allegations that he violated the terms of his probation. See FSM Crim. R. 32.1(2). This Court refused to allow certain witnesses to testify when it became clear that their testimony was not relevant.
Through an offer of proof made by counsel for Mr. Phillip, it was clearly established that the witnesses in question were called by the defendant in order to raise the question of whether Mr. Phillip actually broke the law and to raise the possibility that Mr. Phillip's arrest was unconstitutional. These issues are significantly beyond the scope of a probation revocation hearing. See United States v. Lustig, 555 F.2d 751 (9th Cir. 1977).
Mr. Phillip was convicted by a state court in Kosrae. Counsel for defendant now asserts that the FSM Supreme Court must determine that the convictions were constitutionally valid before revoking probation. That, however, is not the role of this Court or of a revocation hearing. The issue of whether the convictions were valid and constitutional should be taken to the appropriate court of appeals.
reasonable doubt that the terms of the probation have been violated. This Court believes that it is authorized to revoke probation if it is reasonably satisfied that the terms of the probation were violated. See United States v. D'Amato, 429 F.2d 1284 (3rd Cir. 1970). The Court is satisfied that the burden of proof was met and that the terms of the probation were violated. Accordingly, the probation of Cancilin Phillip is revoked pursuant to the terms of this Court's April 8, 1992 order.

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Late last month, the Supreme Court declined to review the D.C. Circuit’s decision in CareFirst v Attias. In CareFirst, the D.C. Circuit ruled that the mere theft of personal information was sufficient to provide standing to bring suit, even in the absence of other alleged harm. As we have previously discussed, the federal Courts of Appeals have reached differing conclusions on the issue—with the D.C., Third, Sixth, Seventh, Ninth, and Eleventh Circuits holding that data theft, with the attendant risk of future identify theft fraud, is by itself sufficient for Article III standing, and the Second, Fourth, and Eighth Circuits holding, in contrast, that such allegations are not sufficient on their own to satisfy Article III’s injury requirements.
This Circuit split has largely developed following the Supreme Court’s May 2016 decision in Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016), which held that Article III requires plaintiffs to allege a “concrete and particularized” injury that is “actual or imminent, not conjectural or hypothetical.” In Spokeo, the Ninth Circuit originally found standing was present for a plaintiff claiming Fair Credit Reporting Act violations based on alleged inaccuracies contained in an online profile published by Spokeo, but the Supreme Court vacated and remanded for the Ninth Circuit to analyze whether the alleged harms met the standards set forth in its opinion. On remand, the Ninth Circuit again found standing for the plaintiff even under the new Spokeo standards. Spokeo once again sought the Supreme Court’s review, but its certiorari petition was denied earlier this year.
For now, it appears that the Supreme Court is hesitant to wade back into Article III standing requirements having recently decided Spokeo. As a result, data breach plaintiffs will likely attempt to steer their cases, to the extent possible, toward Circuits with more hospital interpretations of Spokeo. Potential defendants should keep this in mind when considering the litigation risk following a data breach or other cybersecurity incidents.
 Attias v. Carefirst, Inc., 865 F.3d 620 (D.C. Cir. 2017), cert. denied Carefirst v. Attias, No. 17-641 (2017); In re: Horizon Healthcare Services Inc. Data Breach Litigation, 846 F.3d 625 (3rd Cir. 2017); Galaria v. Nationwide Mut. Ins. Co., 2016 WL 4728027 (6th Cir. Sept. 12, 2016); Remijas v. Neiman Marcus Grp., 794 F.3d 688, 693 (7th Cir. 2015); Spokeo v Robins, 867 F.3d 1108 (9th Cir. 2017); Resnick v. AvMed, Inc., 693 F.3d 1317 (11th Cir. 2012).
 Whalen v. Michaels Stores, Inc., 689 Fed. Appx. 89, 2017 WL 1556116 (2d Cir. May 2, 2017); Beck v. McDonald, 848 F.3d 262, 268 (4th Cir. 2017), cert. denied sub nom. Beck v. Shulkin, No. 16-1328, 2017 WL 1740442 (U.S. June 26, 2017); In re SuperValu, Inc., 870 F.3d 763 (8th Cir. 2017).

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What is the first step in obtaining a Certificate of Need?
The first step in obtaining a Certificate of Need is to file a Letter of Intent. Any person proposing a new health service shall file with the Authority a Letter of Intent 10 days before the submission of an application. A CON application must be filed 10 days after the Letter of Intent. The Letter of Intent shall contain sufficient information to advise the board of the nature, scope, cost and timing of the project, as well as the location and name of the proposed applicant. See W. Va. C.S.R. § 65-32-8.
What is a request for a determination of reviewability?
Basically, this is a question posed to the Board asking if a particular proposal is subject to Certificate of Need review. The request must be accompanied by a nonrefundable $100 fee. See W. Va. C.S.R. §65-32-18.
What is the current expenditure minimum?
As set forth in W. Va. Code §16-2D-2(15), the current expenditure minimum is $5,100,000 dollars and includes the cost of acquisition, improvement, expansion of any facility, equipment, or services including the cost of any studies, surveys, designs, plans, working drawings, specifications and other activities, including staff effort and consulting.
How do I obtain a copy of the CON Law and Regulations?
How do I obtain a listing of existing health care facilities?
You can obtain a listing of health care facilities operating within the State of West Virginia on the Office of Health Facility Licensure and Certification website, www.ohflac.wv.gov, under Health Care Facilities.
How do I become an affected/interest party to a project?
To request affected/interested party status, send a written request to the Authority, to the attention of Timothy Adkins, Director, Certificate of Need, West Virginia Health Care Authority, 100 Dee Drive, Charleston, WV 25311. Identify the project name and CON File Number in the request. The definition of an affected party can be found at W. Va. Code §16-2D-2(1).
How do I request a copy or view a case file?
Send a written request or fax to the Authority requesting a copy or to view a particular case file. Include the project name and CON File number. When requesting a copy of the case file indicate if you want to pick up the file or if you want it mailed to you. When requesting to view a case file, provide a telephone number where you can be reached to inform you when the file will be ready for viewing. There may be processing and copying fees attached to this request.
Can the Authority grant a CON for a nursing home or an intermediate care facility for individuals with an intellectual disability (ICF/IID)?
No. The Authority may not issue a CON for the development of new intermediate care or skilled nursing beds as well as the further development of ICF/IID beds. See W. Va. Code §16-2D-9.
What population projections does the Authority use?
The Authority uses population projections prepared by the Regional Research Institute at West Virginia University. The U.S. census is the basis for the population projections. The Authority uses the population projections based on the short-term in-out migration averages. The projections are available at: www.be.wvu.edu/bber.
What are the guidelines for the testimony of witnesses from the public during a CON hearing?
According to HCA Policy Statement dated April 11, 2012: In order to ensure an orderly public hearing, all witnesses from the public shall register in person during the first day of the hearing. If a witness fails to register during the first day of the hearing, the witness will not be allowed to testify during the hearing. If multiple witnesses are present on behalf of one party, the group can elect up to three representatives. The representative's comment will be limited to five minutes each up to a maximum of 15 minutes. Individual comments will be limited to five minutes each. Further, a witness in the hearing that has provided testimony shall not testify as a witness from the public in the same hearing.
Can the Authority process applications for Summary Review?
Based upon the change in the CON law, the Authority can no longer process applications for summary review.
The Authority previously processed applications related to children’s behavioral health services and intellectual developmental disabilities services through a summary review process pursuant to W.Va. Code § 9-5-19 and W. Va. Code § 49-2-124.
House Bill 4365, effective June 10, 2016 (W. Va. Code § 16-2D-1 et seq.), as amended by the Legislature, conflicts with the summary review provisions cited above. Pursuant to W.Va. Code § 16-2D-8(17), providing intellectual developmental disabilities services requires a Certificate of Need (CON). Furthermore, W.Va. Code § 16-2D-11(c)(8), creates an exemption from CON review for a behavioral health service selected by the Department of Health and Human Resources in response to its request for application for services intended to return children currently placed in out-of-state facilities to the state or to prevent placement of children in out-of-state facilities. In addition, the provision of behavioral health facilities and services are also eligible for an exemption from CON review pursuant to W.Va. Code § 16-2D-11(c)(21).
PLEASE NOTE that exemptions require the filing of an exemption application accompanied by a nonrefundable $1,000 filing fee, as set forth in W.Va. C.S.R. § 65-29-1 et seq.


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The inclusion of new members to the Academy, i.e. the election of scientists, is intended to ensure that the German National Academy of Sciences can fulfil its statutory obligations at all times through its members.
There are two different ways to nominate candidates for election.
1. The proposed candidates should have outstanding academic achievements. There is no age limit.
2. Nominations may be submitted by any full or corresponding member of the Leopoldina, and should be in writing, contain detailed reasons for the nomination, and be signed by at least three members, at least two of whom must be members of the Section looking to elect a candidate. Nominations should be submitted to the Academy Office.
3. Each Section sets up a working group consisting of the Section spokesperson, his or her deputy, and usually at least two other members of the Section, so that the Section’s various disciplines are adequately represented. This working group meets at least once a year and prepares, for example, candidate nominations in accordance with §1b of these Election Regulations. In its deliberations, the working group considers all candidate nominations submitted for the Section in question. Nominations drawn up by the Section’s working group should also be submitted to the Academy Office. The working groups should ensure that minutes are taken at any sessions where nominated candidates are discussed. These minutes form part of the election procedure.
1. The Presidium may appoint a Member Selection Committee to identify suitable candidates in interdisciplinary research areas that are not adequately covered by the Sections, or candidates who have distinguished themselves through their exceptional commitment to the research system that goes beyond their scientific achievements. There is no age limit for candidates.
2. The Member Selection Committee is made up of the Class spokespersons and one Section spokesperson in each Class who is appointed to the committee for four years by the President, after consultation within the Presidium and in liaison with the Class. The committee is supported by a vice-president designated by the Presidium. The committee may also invite further Leopoldina members to participate as advisors in its meetings, particularly if they are spokespersons of Sections whose areas of research are close to the nominated candidate’s own research work. The Member Selection Committee elects a chairperson and a deputy from among its own ranks. The committee meets at least once a year, or more often if required. It is assisted by the Academy Office.
3. All full and corresponding members of the Leopoldina can, at any time, ask the Member Selection Committee to address certain interdisciplinary and transdisciplinary research topics (and also, if necessary, name possible candidates) and identify suitable candidates. Nominations should be submitted to the Academy Office.
4. When required, the Member Selection Committee initiates the relevant nominations, which must be supported by at least three Leopoldina members. Every nomination includes a curriculum vitae, a nomination statement, and an overview of five to ten of the candidate’s most important publications. As a rule, the committee commissions expert opinions (including from abroad) for each candidate who is to be nominated. The Academy Office assists the Member Selection Committee in this task.
5. The Member Selection Committee submits its nominations to the Presidium. All nominations must be supported by the majority of the committee members in a secret ballot vote. The outcomes of all meetings must be documented.
a) In consultation with the Senate, the Presidium determines the number of full members under the age of 75 in each Class (benchmark). Once a member turns 75, his or her position is vacated and can be assigned to someone else. The rights of those members are not affected.
b) A maximum of five candidates nominated by the Member Selection Committee can be elected each year.
c) A member may apply to be relieved of his or her duties for a limited or unlimited period of time. The Presidium decides on the outcome of such applications. All voting rights and all duties then expire. If a member is permanently released from his or her duties, his or her position becomes vacant for a new member.
The election procedure is based on the results of member voting (evaluation) in the Sections (First Reading). The nominated candidates and the results of the First Reading are then discussed in the respective Class sessions, which rank candidates in order of preference (Second Reading). The ballot takes place in the Presidium, which is extended for this purpose to include the responsible Class spokesperson and the responsible Section spokesperson, both of whom have a vote (Third Reading). Nominations submitted by the Member Selection Committee are discussed directly in the Third Reading.
a) The Section spokesperson compiles the nominations submitted to and discussed by the Section working group into a list of nominated candidates. This list includes an appendix with each candidate’s curriculum vitae, reasons for nomination, and nomination statements, as well as an overview of their five to ten most important publications. The list and appendix are sent to all full and corresponding members of the Sections along with a form for written evaluation.
Within the stipulated period, members return their evaluation forms, which are treated confidentially, to the Academy Office along with a statement giving the reasons for their votes. The votes and statements are collected by the election secretariat. The forms are treated as highly confidential and are only available in their original form to the election secretariat, the President, the Class secretary and the relevant Section spokesperson. The election secretariat provides the Section spokespersons and their deputies, the Class spokesperson and his or her deputy, and the members of the Presidium with an overview showing the average voting scores, their distribution, and any statements, which are presented anonymously.
Candidates may only be considered for the Second Reading if two thirds of all the members of a Section who have not reached the age of 75 have voted.
c) Each Section spokesperson draws up a list ranking the candidates in order according to the Section members’ evaluations, and sends it each year to the responsible Presidium member along with his or her comments.
d) The responsible Presidium member or the Presidium can also obtain expert advice from members outside the voting Section and from non-members.
a) The Section spokespersons present the nominations and a report on the outcome and circumstances of the election procedure so far to the Class session. All the relevant Section spokespersons and their deputies attend the Class session, which is chaired by the elected Class spokesperson, or by his or her deputy in the event that he or she is unable to attend. The responsible member of the Presidium and an associate from the Academy Office are invited to the Class sessions as guests. Minutes must be taken at the Class session.
b) Appendix I of these Election Regulations shows how the Sections are assigned to the Classes.
c) All the candidates are discussed during the Class session. They are ranked in order, based on the number of places available and in consideration of how scientific specialisations should best be spread across the relevant Section and Class. The final vote, which is also possible in blocks, is a secret ballot. Each Section has one vote (if several spokespersons of a Section are present, they should decide in advance who will cast the vote). Sections that do not send a spokesperson to the Class session may not vote.
d) All Sections may be members of a second Class. In this case, they cannot vote and may only contribute in an advisory capacity.
1. The Presidium normally holds an extended session for each Class once a year to decide on the election of the individual candidates nominated by the relevant Class. The Presidium may obtain expert advice if necessary. Furthermore, the Presidium normally holds an extended session once a year to decide on the election of the candidates nominated by the Member Selection Committee.
2. After discussing all the candidates for a particular Section and those nominated by the Member Selection Committee, the Presidium votes on these candidates in a joint ballot.
3. During the electoral session with the Member Selection Committee, the chairperson of the Member Selection Committee and his or her deputy bring forth the considerations and votes of the committee. All other members of the Member Selection Committee are invited to attend the session as guests.
4. Voting on each candidate takes place in secret. During the vote, each member must decide whether to elect, reject or defer (yes/no) each candidate. In order to be elected, a candidate requires positive votes from two thirds of the eligible voters present.
5. The following individuals are entitled to vote: the members of the Presidium, the responsible Class spokesperson (or his/her deputy or a member of the Sections in the relevant Class) and the responsible Section spokesperson for the Section that the candidate would join if elected (or his/her deputy or another member of the relevant Section), or the chairperson of the Member Selection Committee and his/her deputy (or other members of the Member Selection Committee as their spokespersons).
6. The extended Presidium has a quorum when at least seven members of the Presidium, and a representative of the relevant Section or a representative of the Member Selection Committee are present.
7. At least six of the seven or more Presidium members present must vote for a candidate in order for his or her election to be valid. Abstentions are not permitted. Where possible, the responsible Class spokesperson and the Section spokesperson or their deputies or the chairperson of the Member Selection Committee and his/her deputy should be present at the session.
The President writes to the elected candidates to inform them of their election, to explain in detail the aims, structures and tasks of the Leopoldina, to ask them if they are prepared to play an active role in achieving the Academy’s goals, and to find out which Section they would like to join.
The election is complete when a candidate agrees in writing to accept membership and to work for the benefit of the Academy. The Class spokesperson, the Section spokesperson, the nominating persons and the members of the Section are informed of the result. If the successful candidate was originally nominated by the Member Selection Committee, it must also be informed of the result.
If necessary, the Presidium can address any technical or administrative details in specific guidelines on the election procedure.
1. All full and corresponding members of a Section elect a spokesperson for their Section in a secret written ballot, which is usually conducted by post. All full members are eligible for election and may be re-elected once, regardless of their age. Section spokespersons are elected for a term of four years.
2. The responsible member of the Presidium initiates the voting procedure by writing to all of the members of the Section, explaining the need for the election. Enclosed with the letter is a ballot paper with a list of the Section members running for election.
3. Each Section member elects his or her preferred Section spokesperson from the list by clearly marking this candidate’s name on the ballot paper and returning the paper to the Academy Office within four weeks. The candidate with the highest number of votes is elected Section spokesperson. If two or more candidates receive the same number of votes, the Presidium makes the final decision. The Presidium is responsible for supervising the election, checking that it complies with the relevant regulations, and appointing the Section spokesperson at the end of the process.
4. The Deputy Section spokesperson is elected in a second ballot following the procedure outlined in §2(3).
1. Each Section is assigned to a Class in accordance with its subject area (see Appendix 1 of these Election Regulations). The Class is the organisational unit that brings together the Section spokespersons and their deputies once a year for the Second Reading, where they rank the nominations for new members agreed by the Sections in the First Reading.
2. All of the Section spokespersons from a Class and their deputies elect, from among the members of the Sections in their Class, a Class spokesperson in a secret written ballot, which is usually conducted by post. Class spokespersons are elected for a term of four years and may be re-elected once.
3. Sections may belong to two Classes, but are only entitled to vote in one.
4. The responsible member of the Presidium initiates the voting procedure by sending the list of candidates on a ballot paper (see §3(2)). Votes are cast by clearly marking the preferred candidate’s name on the ballot paper and returning the paper to the Academy Office within four weeks. The candidate with the highest number of votes is elected Class spokesperson. If two or more candidates receive the same number of votes, the Presidium makes the final decision. The Presidium is responsible for supervising the election, checking that it complies with the relevant regulations, and appointing the Class spokesperson at the end of the process. The Deputy Class spokesperson is elected in a second ballot in the same manner.
1. The Academy has a Regional Section in both Austria and Switzerland.
2. Members of each Regional Section elect a full member from their region as the Regional head in a secret written ballot, which is usually conducted by post. Prior to the vote, the Presidium obtains the consent of the members eligible for election that they will accept office should they be elected.
3. Regional heads and their deputies are elected in the same way as Section spokespersons (see §2 of these Election Regulations).
1. In accordance with §7(1) of the Academy’s statutes, members elect Section spokespersons (1a) and Regional heads (1b) as members of the Senate in accordance with §2 and §4 of these Election Regulations respectively. The other senators (1c) are elected by the Senate for a term of four years on the recommendation of the Presidium and may be re-elected once.
3. The elected Section spokesperson also serves as Senator.
4. The two Regional heads for Austria and Switzerland also serve as Senators.
1. The Senate formed in accordance with §7 of the Academy’s statutes and §5 of these Election Regulations elects the Presidium according to §6(1) of the Academy’s statutes. All full members may be elected, regardless of their age. Presidium members are elected for a term of five years and may be re-elected once.
2. The election of the President and Vice-Presidents is prepared by a Presidium Selection Committee, which is appointed by the Presidium.
For the election of the President, the Presidium Selection Committee also includes three ex-officio Senators.
The Secretary-General also serves on the Presidium Selection Committee in an advisory capacity.
The President or the longest-serving Vice President chairs the Presidium Selection Committee and has a second vote if there is a parity of votes.
Every Senator and every member of the Presidium is entitled to nominate candidates.
Nominations are submitted to the Presidium Selection Committee, which then prepares a nomination and sends it in written form to the members of the Senate in good time before the ballot. Each seat on the Presidium is subject to a separate ballot. Block voting is not permitted.
3. The Presidium serves as the Presidium Selection Committee for the other Presidium members.
4. The ballot is managed by an electoral commission comprised of three members, who are appointed ad hoc by the Senate. The Senate has a quorum if more than half of the Senators are present for the ballot (or take part by post). A candidate is elected if he or she receives over half of the votes. If none of the candidates receive over half of the votes, a second ballot is held to decide between the two candidates who received the most votes in the first ballot. The candidate who gains a simple majority in this vote is elected. If there is a parity of votes, lots are drawn.
Expulsion proceedings may only be initiated against a member if at least ten members apply to the President for a member’s expulsion and give detailed reasons for this request in writing. The President is required to assess the circumstances. He or she should obtain a written statement from the responsible Section spokesperson and, if relevant, the Regional head. The President then presents the matter to the Presidium, which assesses whether and to what extent the Academy has suffered damage. The member in question should make a written or, if he or she prefers, verbal statement to the Presidium to explain his or her position. If the majority of the Presidium members agree that there are sufficient grounds for expulsion, the Presidium forwards the application and the detailed reasons for it to the Senate. In accordance with §7(1) of the Academy’s statutes, the Senate then rules on the expulsion on the basis of a simple majority in a written ballot. This decision is final and appeals may not be lodged.
These Election Regulations were adopted following a decision by the Senate on 27 November 2015 and replace the previous Election Regulations of 19 September 2013.

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Accord and satisfaction is the purchase of the release from an obligation, whether arising under contract or tort by means of any valuable consideration not being the actual performance of the obligation itself. The accord is the agreement by which the obligation is discharged. The satisfaction is the consideration which makes the agreement operative. The consideration may be executory.
Under English law, an accord without satisfaction is of no effect. In Indian law, an accord is an agreement, there must be consensus ad idem; its validity liable to be judged by the general law of contract quite apart from the provisions of sections 62 and 63 of the Indian Contract Act, 1872.
A liability arising out of breach of contract may be discharged by the doctrine of accord and satisfaction. An accord is an agreement made after breach whereby some consideration other than the legal remedy is to be accepted by the party not in fault, followed by the performance of the substituted consideration.
The question is, whether an arbitration clause in a contract survived despite the purported satisfaction of the terms of the contract. Normally, an accord and satisfaction by itself would not affect the arbitration clause for even rights and obligations of the parties are worked out, the contract does not come to an end. If the dispute is that the contract itself does not subsist, the question of invoking the arbitration clause may not arise. But in the event it be held that the contract survives, recourse to the arbitration clause may be taken.
The doctrine of accord and satisfaction has many underlying principles, including the acceptance of a lesser sum and acceptance of any satisfaction. The Privy Council gave its views on the doctrine in Payan Reena Saminathan v. Puna Lana Palaniappa [41 IA 142]. The doctrine and its usage in India have been derived from the American Common Law.
Section 63 of the Indian Contract Act allows a party to a contract to dispense with the performance of the contract by the other party, or to extend the time of performance or to accept any other satisfaction instead of the performance.
According to Section 62 of the Indian Contract Act, on the other hand, every person who accepts a proposal may dispense with or remit wholly or in part, the performance of the proposal made to him which he has accepted, or may extend the time for such performance or may accept instead of it any satisfaction which he thinks fit.
(iii) accept any other satisfaction instead of performance.
The sections 63 and 62 must be construed so as to not overlap with each other. This can be done by holding that agreements referred to in section 62 are agreements which more or less affect the rights of both the parties to the contract discharged by such agreements. Those referred to in section 63 are such as to affect the right of only one of the parties.
The former case necessarily implies consideration, which may be either the mutual renunciation of right, or, in addition to this, the mutual undertaking of fresh obligations, or the renunciation of some right on the one side and the undertaking of some obligation on the other. It is only when the agreement to discharge affects the right of only one party that consideration might be found wanting. There alone the Indian law departs from the English law by making provisions for every such possible case in section 63. The result is that the agreement set up by the defendant which falls under section 63 is binding, though without consideration.
This section enables the defendant in a suit filed by the promise, dispensing or remitting performance or accepting satisfaction and subsequently trying to enforce, the promise made to him, to plead that he was relieved from performance that which the plaintiff told he need not do. It has been held, in the case of New Standard Bank Ltd. v. Probodh Chandra Chakravarty [AIR 1942 Cal 87], that an agreement made between the parties after the breach of contract may be enforced under this section.
Under the English law, it is competent for both parties to an executor contract by mutual agreement, without any satisfaction, to discharge the obligation of that contract; in other words, reciprocal promises are a sufficient consideration for each other, so are reciprocal discharges. A contract rescinded by an agreement, stands completely discharged and cannot be revived.
But an executed contract cannot be discharged except by release under seal, or by performance of the obligation, as by payment where the obligation is to be performed by payment. Subject to that exception, ‘the new agreement in rescission or alteration of the prior contract must in general satisfy all the requirements of an independent contract’, and so must an agreement to accept satisfaction for a right of action which has arisen by breach of contract.
This section makes a wide departure from the English law, and the principles of that law cannot be relied upon to interpret the section. The intention of the present section to alter the rule of the common law is clear; and this has been recognised in several Indian cases.
In 1903, the High Court of Bombay had held (Abaji Sitaram Modak v. Trimbak Municipality) that a dispensation or remission under this section involved a promise as defined by section 2(b) or an agreement within section 2(e), so that ‘there must be a proposal of the dispensation or remission which is accepted’: in technical terms, that the effect of the section is only to allow an accord to be good without satisfaction.
Many jurists have continuously protested against this ruling and suggested that the words of the section ought to be construed according to their natural meaning and a promise could discharge the promise not only without consideration but without a new agreement.
There have been two interpretations of this doctrine till date, the situation in which the party not at fault accepts any satisfaction in place of the original consideration and most importantly, when he or she accepts a lesser sum as satisfaction until the previous contract is discharged.
The doctrine of accord and satisfaction is merely a method of discharging a claim whereby the parties agree to give and accept something in settlement of the claim and perform the agreement, the accord being the agreement and the satisfaction its execution or performance, and it is a new contract substituted for an old contract which is thereby discharged, or for an obligation or cause of action which is settled, and must have all of the elements of a valid contract.
To constitute an accord and satisfaction, there must have been a genuine dispute that is settled by a meeting of the minds with an intention to compromise. Where there is an actual controversy, an accord and satisfaction may be used to settle it. The controversy may be founded on contract or tort. It can arise from a collision of motor vehicles, a failure to deliver oranges ordered and paid for, or a refusal to finish constructing an office building, etc.
An accord and satisfaction can be made only by persons who have the legal capacity to enter into a contract. A settlement is not binding on an insane person, for example; and an infant may have the right to disaffirm the contract. Therefore, a person, such as a guardian, acting on behalf of a person incapable of contracting for himself or herself may make an accord and satisfaction for the person committed to his or her charge, but the law may require that the guardian’s actions be supervised by a court.
An executor or administrator may bind an estate; a trustee can accept an accord and satisfaction for a trust; and an officer can negotiate a settlement for a corporation.
A third person may give something in satisfaction of a party’s debt. In such a case, an accord and satisfaction is effected if the creditor accepts the offer and the debtor authorizes, participates in, or later agrees to, the transaction.
Most commonly, this is seen in situations where people lack the capacity to consent and negotiate legal agreements, and the person negotiating the contract may be supervised to confirm that the agreement is in the best interests of the person being represented. People can also reach accord and satisfaction on behalf of someone else more informally; for example, a parent may help an adult child settle a debt to a landlord, acting on behalf of the child to resolve the matter. However, the law may require that the guardian’s actions be supervised by a court. An executor or administrator may bind an estate; a trustee can accept an accord and satisfaction for a trust; and an officer can negotiate a settlement for a corporation.
A valid accord does not discharge the prior contract, it suspends the right to enforce it in accordance with the terms of the accord contract, in which satisfaction, or performance of the contract will discharge both contracts (the original and the accord). If the creditor breaches the accord, then the debtor will be able to bring up the existence of the accord in order to enjoin any action against him.
The accord agreement must be transacted on a new agreement. It must therefore have the essential terms of a contract, (parties, subject matter, time for performance, and consideration). If there is a breach of the accord there will be no “satisfaction” which will give rise to a breach of accord. In this instance the non-offending party has the right to sue under either the original contract or the accord agreement.
A mere retaining of the money sent by the promisor does not imply satisfaction. Whether or not the money is taken in satisfaction is a question of fact to be determined keeping in view all the circumstances of the case. An award of damages for breach of a contract is not the same thing as a party to the contract accepting satisfaction of the contract other than in accordance with the original terms thereof.
According to the doctrine of accord and satisfaction, the promise may accept, instead of performance of the promise, such satisfaction as he thinks fit. But until the satisfaction agreed upon remains executory, the original cause of action is not discharged. But where the promise accepts the promise itself in satisfaction, the original cause of action is discharged.
In the case of Manohur Koyal v. Thakur Das Naskar [(1888) ILR 15 Cal 319], the defendant executed a bond of a certain sum of money in favour of the plaintiff, to be repaid on a certain date at eighteen percent per annum. If not paid on that date, the rate would be increased to twenty – four per cent per annum. The defendant came to the plaintiff on the day of repayment and expressed his inability to pay the said amount. Instead, he offered to pay Rs.400 cash and agreed to issue another bond in favour of the plaintiff to be paid at a much later date. The plaintiff accepted theses terms, but the defendant failed to carry them out. The plaintiff filed a suit for recovery of the original balance and the later promised amount from the defendant. The Court applied the principle of accord and satisfaction from section 63 of the Indian Contract Act and entitled the plaintiff to the entire sum demanded by him, stating that the reason was that the plaintiff had accepted the promise to carry out a different set of terms and conditions as the satisfaction for the later contract.
(iii) the contract may be an independent transaction, in the sense that it does not affect the rights of the creditors or the obligations of the debtor till the sale is actually completed.
In which of these ways the contract is to have operation will depend upon the intention of the parties to be gathered in the absence of any express stipulation, from their conduct and the surrounding circumstances in the particular case.
It was held in the case of Sakarchand Shamji v. Ismail Hoosein [AIR 1931 Rang 189], that where on the breach of contract for sale, the buyer accepted a promissory note to reimburse loss on breach, and the receipt for one of the payments stated that the whole amount was not paid within a particular time, there was no agreement to revive the original cause of action.
In the case of Ram Swaroop Mam Chand v. Chhaju Ram & Sons. [(1937) 1 Cal 757], the Court held that before a party can be said to accept something other than the performance stipulated for in satisfaction of the contract, it should be open to him to refuse such satisfaction and to insist on the performance of the contract in accordance with its terms.
Thus, if any party instead of original satisfaction of a claim accepted another satisfaction, deemed fit by it, such unilateral acts were covered under section 63 of the Indian Contract Act.
Although the rule that the court does not enquire into the adequacy of the consideration is applicable in general, and therefore anything different in kind from what is due may be good satisfaction without regard to its apparent value, yet the court cannot help knowing that nineteen pounds is not equal to twenty pounds. Accordingly, a less sum of money cannot be good for a greater sum already due. This last rule was confirmed with great reluctance by the House of Lords in the case of Foakes v. Beer [[1881 – 85] All ER Rep 106].
However, in Indian law, neither consideration nor an agreement is necessary for enabling a promise to dispense with or remit the performance of the promise or accept any other satisfaction in place of the original satisfaction.
This is one of the most common manifestations of the doctrine of accord and satisfaction. Where there has been a true accord under which the creditor voluntarily agrees to accept a lesser sum in satisfaction and the debtor acts upon that accord by paying the lesser sum and the creditor accepts it, then it is inequitable for the creditor afterwards to insist on the balance.
The real emphasis is not on the acceptance of a smaller sum, but on the debtor’s condition that if the tendered money be at all accepted, it must be in discharge of the entire debt. A creditor accepting payment on a condition cannot accept the payment and repudiate the condition. Such accord and satisfaction are a question of fact, implying an agreement to take the money in satisfaction of the claim in respect of which it is sent; and preclude the creditor promise from claiming the amount under the original contract.
This was seen in the case of State of Maharashtra v. Nav Bharat Builders [(1994) SC 3 SCC 83], where in a mutual agreement pending a suit, a contactor agreed to receive on account of his claim, labour escalation charges, an amount calculated according to specified principles aand in order to withdraw the suit, there was accord and satisfaction after he had accepted the amount and withdrawn the suit.
The same principle was applied in the case of PK Ramaiah v. CMD, National Thermal Power Corpn. [(1994) Supp 3 SCC 126], in which when the creditor accepted the final measurements of the work completed and issued a receipt stating that the amount had been received in full and final settlement, there was accord and satisfaction and the creditor was not entitled to claim the balance.
Once any dispute is settled in this manner, no arbitral dispute remains, and the arbitration clause cannot be invoked.
If a cheque for a smaller amount than the debt due is sent to the creditor in full satisfaction, it does not discharge the debt if the latter does not accept it as such. It depends upon the intention of the parties as expressed in the correspondence and the character of the transaction.
For instance, in the case of Union of India v. Gangaram Bhagwandas [AIR 1977 MP 215], the railway sent a cheque for a smaller sum than the claim of the plaintiff in court in full and final satisfaction as settlement of the claim. The plaintiff encashed the cheque but continued his suit for the balance. The court held that the plaintiff had not accepted the cheque in full and final settlement as he continued the suit.
Similarly, in the case of Tata Locomotive & Eng. Co. Ltd. v. Sardar Kartar Singh [AIR 1961 Pat 37], a cheque for a smaller sum was sent to the creditor with the request that it be accepted in full payment, accompanied by a receipt to be signed by the creditor in full satisfaction. The cheque was cashed but no receipt was sent. On the contrary, before cashing the cheque a demand for the rest was made. The payment was held not to be in discharge of the entire debt.
Further, in respect of a works contract, if a contractor accepts the final bill, it would not mean that he was not entitled to make any claim. He was not precluded in law from raising the rest of his claim. The judgement is clearly right since under section 63 of the Indian Contract Act, there have to be accord as well as satisfaction to discharge the liability of the debtor.
The acceptance of a lesser sum of money where more is due, is a good discharge of the whole liability. The Supreme Court decision in Kapur Chand Godha v. Mir Nawab Himayatali Khan [(1963) 2 SCR 168] illustrates this. In this case, the liability was above twenty-seven lakhs of rupees. A Committee was formed to clear up the matter, which offered the creditor twenty lakhs in full satisfaction of the debt. The plaintiff after some initial protest expressed his readiness to accept the sum sent in full satisfaction of his claim and discharge the promissory note making endorsement of full satisfaction and received the payment. After the settlement, the creditor sued the debtor for the balance amount.
Justice S.K.Das held that “the facts of the case are completely covered by section 63 and illustration (c) thereof. The appellant having accepted the payment in full satisfaction of his claim was not entitled to sue”.
For this principle to lie, there must be proof that the a lesser sum has been accepted by the party not at fault.
It is the general rule that full satisfaction equals the accord. That is, after a party not at fault has accepted the satisfaction for an extension in the performance of the previous contract, the accord is complete and the other party cannot back out of the performance of his part of the contract so formed.
This rule has certain exceptions. If the party was made to enter into the contract despite protesting against it, the accord does not hold good. For instance, in the case of Union of India v. Gangaram Bhagwandas [AIR 1977 MP 215], the railway sent a cheque for a smaller sum than the claim of the plaintiff in court in full and final satisfaction as settlement of the claim. The plaintiff encashed the cheque but continued his suit for the balance. The court held that the plaintiff had not accepted the cheque in full and final settlement as he continued the suit and this was clearly a protest against the acceptance of the satisfaction.
Similarly, if the second party gave his assent to the accord under undue influence, mistaken belief or coercion, this rule is not applicable. Also, if the second party entered into the agreement for accord and satisfaction under the pressing circumstances, the doctrine does not apply, as in the case of Usman v. Union of India.
In the American common law, the term “accord and satisfaction” is used to express “the legal consequence of a creditor’s acceptance of a substitute performance for a previously existing claim or prior original duty.” As the conjunctive name implies, accord and satisfaction consists of two distinct parts. The “accord” of an accord and satisfaction is an agreement in which the creditor promises to accept the substitute performance for the pre-existing claim or duty. The “satisfaction” is the actual acceptance by the creditor of that substitute performance. Used together, these terms represent the legal consequence of accepting performance of the accord as satisfaction, the legal consequence being the discharge of the prior claim or duty.
For the second requirement to be met, the offer and acceptance must be for a substitute performance. In the common law, a substitute performance must be distinguished from a substitute contract. Though the two are very similar, the distinction between them for the purposes of accord and satisfaction is the timeline by which each discharges the prior existing claim or duty. A substitute contract discharges the prior duty at the moment the parties reach an agreement. A substitute performance does not discharge the existing duty until the performance is executed.
The last requirement for a valid accord and satisfaction to exist is that “new, valuable, and legal consideration” be present. Consideration is a bargained for performance or return promise. Therefore, for a promise to give, do, or not do, there must be a quid pro quo, something given, done, or not done in return. In the context of accord and satisfaction, courts have held that “the consideration is the resolution of the disputed claim”.
Although the principle of accord and satisfaction has been said to be similar to other forms of dispute settlement and often confused for being synonymous with compromise and settlement and some forms of arbitration, it can clearly be distinguished from them.
Accord and satisfaction is the purchase of the release from an obligation, whether arising under contract or tort by means of any valuable consideration not being the actual performance of the obligation itself. The accord is the agreement by which the obligation is discharged. The satisfaction is the consideration which makes the agreement operative.
An accord and satisfaction can be distinguished from other forms of resolving legal disputes. A payment or performance means that the original obligations were met.
A release is a formal relinquishment of the right to enforce the original obligations and not necessarily a compromise, as in accord and satisfaction.
An arbitration is a settlement of the dispute by some outside person whose determination of an award is voluntarily accepted by the parties.
A composition with creditors is very much like an accord but has elements not required for an accord and satisfaction. It is used only for disputes between a debtor and a certain number of his or her creditors, while an accord and satisfaction can be used to settle any kind of controversy-whether arising from contract or tort-and ordinarily involves only two parties.
Although distinctions have occasionally been drawn between an accord and satisfaction and a compromise and settlement, the two terms are often used interchangeably.
A novation is a kind of accord in which the promise alone, rather than full performance, is satisfaction, and is accepted as a binding resolution of the dispute.
The principle of accord and satisfaction implies that after a breach of contract has been made, the parties may enter into a subsequent contract by which the party not at fault may accept some other consideration other than the legal remedy.
This principle has also been described as only a method of discharge of a contract, as not annihilating the contract itself, but only making the obligation arising out of it unenforceable. The principle of accord and satisfaction is seen as a defense to legal action.
‘It is a good defense to an action for the breach of any contract that the cause of action has been discharged by accord and satisfaction, that is to say, by an agreement after breach whereby some consideration other than his legal remedy is to be accepted by the party not in fault’.
An accord and satisfaction which secures a release from such an obligation is really based on the existence of the contract instead of treating it as non-existent. When an action is brought for non-performance an accord and satisfaction furnishes good defense. The defense is not that the contract has come to an end, but that its breach has been satisfied by accord and satisfaction, and therefore the plaintiff in the action is not entitled to the usual remedy for the breach.
Through accord and satisfaction, a lessee can agree to acceptance of a lesser amount by way of full satisfaction of all claims. But when the debtor paid still lesser amount, his liability could not come to an end. In such a case, there would be no accord even though the creditor had accepted the said amount.