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Sensis Pty Ltd., Telstra Corporation Limited v. Yellow Page, Yellow Page Marketing B.V.
Complainant is Sensis Pty Ltd., Telstra Corporation Limited, of Melbourne, Victoria, Australia represented by Blake Dawson, LLP, Australia.
Respondent is Yellow Page, Yellow Page Marketing B.V. of Den Haag, Netherlands represented by Phillips Ormonde & Fitzpatrick, Australia.
The disputed domain names <yellowpage-adelaide.com>, <yellowpage-melbourne.com>, <yellowpage-nsw.com>, <yellowpage-perth.com>, <yellowpage-queensland.com>, <yellowpage-southaustralia.com>, <yellowpage-sydney.com>, <yellowpage-tasmania.com>, <yellowpage-victoria.com>, and <yellowpage-westernaustralia.com> are registered with PSI-USA, Inc. dba Domain Robot.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 21, 2010. On May 21, 2010, the Center transmitted by email to PSI-USA, Inc. dba Domain Robot a request for registrar verification in connection with the disputed domain names. On May 21, 2010, PSI-USA, Inc. dba Domain Robot transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced on May 27, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was June 16, 2010. Respondent requested an extension to June 23, 2010 to file its Response, which was granted by the Center. The Response was filed with the Center on June 22, 2010.
The Center appointed Frederick M. Abbott as the sole panelist in this matter on June 29, 2010. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
Co-Complainants in this proceeding are Telstra Corporation Limited (hereinafter “Telstra”), organized in Australia, and Sensis Pty Ltd. (hereinafter “Sensis”), organized in Australia. Telstra is the parent corporation of Sensis, a wholly-owned subsidiary. Telstra is the owner of the trademark registrations relied upon by Co-Complainants in this proceeding, and Telstra has granted a license to Sensis to make use of its trademarks in a licensed territory that includes Australia.1 Co-Complainants are hereinafter referred to jointly as Complainant, except as otherwise expressly indicated.
Complainant has registered the word trademark and service mark YELLOW PAGES on the records of the Australian intellectual property office (“IP Australia”), registration number 545667, entered on register March 15, 1996, in International Class (IC) 16, covering “Telephone books, telephone directories and business directories”; registration number 545668, entered on register December 11, 1995, in IC 35, covering “Advertising services relating to the provision and promotion of telephone directories and telephone directory business supplements of all kinds”, as further specified; registration number 704079, entered on register August 24, 1999, in ICs 9 and 42, covering “Telephones and telephone equipment, apparatus and systems”, as further specified and, inter alia, computer programming, consultancy and research and development services, and; registration number 545669, entered on register March 15, 1996, in IC 38, covering “Telecommunication services and telephone services”.
Co-Complainant Sensis has registered the business name “Yellow Pages” on a number of state registries in Australia (e.g., on the business names registry of New South Wales).
Complainant refers to “colours and logos that are known to be associated with [Sensis'] goods and services in Australia”, but has not provided examples of such colors and logos. It has provided examples of webpages used by Respondent which Complainant states “contain colours and logos that are deceptively similar” to Complainant's.
According to the Registrar's verification report, Respondent is registrant of the disputed domain names. According to that report, each of the disputed domain names was registered on April 29, 2010, with the exception of <yellowpage-sydney.com> that was registered on April 30, 2010.
At the bottom of the telefax form, the sponsoring company is listed as “YELLOW PUBLISHING LTD.”, with address in Manchester, United Kingdom and with email contact information.
The telefax page includes neither an express claim of affiliation with Complainant nor a disclaimer of such affiliation.
Complainant has also provided examples of webpages to which the disputed domain names resolve. A typical page is headed with the same box and human fingers logo appearing on the telefax described above, with the area inside the box colored yellow, and the remainder of the logo black. The typical page is headed “YellowPage-[geographic indicator].com”, and sub-headed “the [geographic indicator] business directory”. This is followed by a search box requesting the user to enter “Who/What” (and further requesting a “Keyword/Name”) and a separate search box requesting the user to enter “Where in [geographic indicator]” (and further requesting “City or ZIP”).
Respondent indicates that it initiated its online business to consumer directories business in 2007, and commenced publication of “yellow page” directories for Germany, Austria and Switzerland. Following a year of preparation, it commenced publishing such online directories in March 2009 for 35 regions of the United States, and claims that “[w]ithin 12 months of the launch of Respondent's yellow page directories in the United States over ten thousand businesses have registered with Respondent's United States yellow page directories”.
Respondent indicates that in January 2010 it launched its yellow page directories in Canada, and that today over 5,000 businesses have registered with Respondent's Canadian yellow page directories.
Respondent indicates that it began preparing to introduce its online yellow page directories in Australia in early 2010.
Respondent indicates that during 2008 it developed its business model based on a determination that the term “yellow page” is a generic descriptive term in some countries, including the United States, and that in many countries where the term was registered as a trademark it would be susceptible to invalidation. Respondent indicates that its conclusion is supported by a decision of the German Patent and Trade Mark Office (“German Trademark Office”) of May 15, 2009 canceling the German trademark registration for GELBE SEITEN (i.e. the German language equivalent of YELLOW PAGES in English) on the basis of bad faith registration by a former telecommunications monopoly.
The Registration Agreement in effect between Respondent and PSI-USA, Inc. dba Domain Robot subjects Respondent to dispute settlement under the Policy. The Policy requires that domain name registrants submit to a mandatory administrative proceeding conducted by an approved dispute resolution service provider, of which the Center is one, regarding allegations of abusive domain name registration and use. (Policy, paragraph 4(a)).
Complainant contends that it has rights in the trademark and service mark YELLOW PAGES in Australia as evidenced by various registrations and supported by use in commerce in Australia. Complainant further contends that it has rights in the “business name” YELLOW PAGES in Australia as evidenced by various business name registrations.
Complainant argues that the disputed domain names are confusingly similar to Complainant's trademark and business name, as they differ by only one letter, each followed by the name of a geographic location in Australia. Complainant contends that since consumers in Australia are familiar with the fact that its YELLOW PAGES directories are divided by State or region, consumers will assume that the disputed domain names are divided similarly by Complainant.
Complainant alleges that the use by Respondent on its websites of colors and logos that are deceptively similar to the colors and logos used by Complainant are deliberately and deceptively intended to confuse consumers. Complainant argues that Respondent's use of correspondence that takes advantage of Complainant's trademark and logos is further evidence of confusing similarity between Complainant's trademark the disputed domain names.
Complainant argues that Respondent registered and is using the disputed domain names in bad faith by intentionally attempting to attract for commercial gain Internet users to the websites to which the domain names resolve by creating a likelihood of confusion with Complainant's YELLOW PAGES trademarks, and by creating the false impression that Complainant is the source and/or affiliated with the websites associated with the disputed domain names. Complainant further argues that Respondent was aware of the wide recognition of Complainant's trademark in Australia, and that it is highly likely that Internet users would visit the websites associated with disputed domain names and assumes sponsorship by or affiliation with Complainant.
Complainant requests the Panel to direct the Registrar to transfer the disputed domain names to Complainant.
Respondent asserts that the disputed domain names plainly are not identical to Complainant's alleged trademark. Respondent contends that “yellow page” is descriptive of business to consumer directories and is not in and of itself a distinguishing or memorable feature of the disputed domain names. Respondent contends that the plural YELLOW PAGES “naturally refers to a hard copy directory such as that identified in the Complaint as being distributed by the Complainants, the singular yellow page naturally refers to an online webpage which provides Business to Consumer directory services”. Respondent asserts that colors and logos that constitute part of the design of webpages is irrelevant from the standpoint of the Policy to a comparison between the trademark and the disputed domain names. Respondent further asserts that Complainant's reference to complaints from consumers is devoid of evidentiary support.
Respondent contends that it has rights or legitimate interests in the disputed domain names because: (1) it acquired the business of two providers of online business to business directories in 2007, changed its name to “Yellow Page (Netherlands) BV” and commenced publication of business to consumer “yellow page” directories in Germany, Austria and Switzerland; (2) it was aware that in the United States and other countries the term “yellow page” was a generic descriptive term used in relation to business to consumer directories, and further formed the view that in many other countries where the term “YELLOW PAGES” was registered as a trademark, those trademark rights were likely to be invalid because, inter alia, they had been obtained in bad faith by former government telecommunications monopolies; (3) in March 2009 Respondent launched its yellow page directories for 35 regions in the United States (using a similar “yellowpage-[geographic indicator]” format as used in the disputed domain names); (4) in May 2009 the German Trademark Office canceled trademark registration for the German equivalent of YELLOW PAGES on grounds that the former telecommunications monopoly had acted in bad faith by seeking to register the mark; (5) in January 2010 Respondent launched its yellow page directories in Canada (using the similar “yellowpage-[geographic indicator]” used in the disputed domain names), and (6) in early 2010 Respondent decided to extend its yellow page directories to Australia and registered the disputed domain names in contemplation of that market entry. With respect to Australia, Respondent argues that it registered the disputed domain names in connection with a bona fide offering of services, namely its online business to consumer yellow page directory service, and that there is no need for Respondent to have a physical business presence in Australia to conduct its online business. Respondent asserts that the fact it is in competition with Complainant for online directory services does not mean that its telefax offer to customers is a “scam”, but instead the telefax provides evidence of the bona fide nature of its services. Respondent further indicates that it has been known as Yellow Page (Netherlands) BV or similar variants of that name since 2007, and that it has been known by the terms used in the disputed domain names.
Respondent asserts again that Complainant has provided no evidentiary support for its assertion that it has received complaints from customers, or the nature of those complaints.
Respondent argues that the Complaint has provided no evidence of any rights in a trademark device of Complainant other than in the words YELLOW PAGES.
Respondent asserts that its use of geographic terms for places in Australia referenced by its business to consumer directories is consistent with legitimate use of the disputed domain names.
Respondent concludes that it is not using the disputed domain names to create Internet user confusion, but instead is using them for the legitimate business purpose of providing online business to consumer directory services in Australia, as are provided in other countries such as the United States and Canada.
Respondent requests the Panel to reject Complainant's request for transfer of the disputed domain names.
The Center transmitted the Complaint and notification of commencement of the proceeding to Respondent, and Respondent submitted a Response. The Panel is satisfied that each party had adequate opportunity to present its position in this proceeding.
Complainant has furnished evidence of registration of the trademark and service mark (hereinafter “trademark”) YELLOW PAGES in Australia dating back at least 15 years, and has asserted substantial use in commerce of that trademark and service mark.
Respondent has not challenged the fact of Complainant's trademark registration in Australia, or that Complainant has used the trademark in commerce in Australia. Respondent has indicated that it believes Complainant's trademark registration is susceptible to invalidation on grounds that it constitutes a merely descriptive term, or perhaps was secured unfairly as part of a government telephone monopoly (as in the decision of the German Trademark Office).
Respondent has not provided the type of legal argumentation and support under Australian law that might arguably form the basis for the Panel to make a determination regarding whether the term YELLOW PAGES should be considered a merely descriptive or generic term within the meaning of Australia trademark law. Further, it is unnecessary to address whether a Panel determination regarding anticompetitive behavior alleged to be undertaken in connection with trademark registration is within the scope of the Policy because Respondent has not presented facts or law on this issue with respect to Complainant and its conduct regarding the Australian trademarks relied upon here.
In exceptional cases panels making determinations under the Policy have rejected the bona fide character of an otherwise valid trademark registration (see Madonna Ciccone, p/k/a Madonna v. Dan Parisi and “Madonna.com”, WIPO Case No. D2000-0847). This is not such an exceptional case and the Panel does not question the bona fide character of Complainant's trademark registration.
The Panel determines that Complainant has rights in the YELLOW PAGES trademark in Australia based on the evidence of registration and use in commerce.
Respondent has asserted that the disputed domain names are not confusingly similar to Complainant's trademark. Respondent's principal argument is that YELLOW PAGES “naturally” implies a connection to a hard copy telephone directory whereas “yellow page” … “naturally” refers to an online business to consumer directory. The Panel fails to draw the “natural” inference suggested by Respondent. Since Internet websites often include a substantial number of “pages”, it is not apparent why Internet users would infer that a website would not be identified by YELLOW PAGES, even if historically YELLOW PAGES directories were in hard copy (for obvious technical reasons). A simple Google search of YELLOW PAGES by the Panel returned a large number of websites using YELLOW PAGES either in domain names and/or in search result descriptions.2 If Complainant's “natural” inference concerning the plural YELLOW PAGES was correct, it would be difficult to explain the proliferation of YELLOW PAGES websites. The Panel concludes that YELLOW PAGES and “yellow page”, without more, are confusingly similar.
Respondent has added (following a hyphen) a geographically descriptive term after “yellowpage” in each of the disputed domain names (e.g., “-adelaide”, “-melbourne”, “-victoria”).3 Because a YELLOW PAGES or “yellow page” directory has traditionally provided information regarding a geographically defined area,4 Internet users viewing “yellowpage-[geographic indicator]” will likely assume that the source or provider of the YELLOW PAGES directory or “yellow page” directory is clarifying the scope of geographic coverage of the directory, and is the source of the product or service. By adding a geographic identifier Respondent does not dispel confusing similarity between YELLOW PAGES and the disputed domain names. Since each of the disputed domain names employs a common format, this determination regarding confusing similarity applies without distinction to each of the disputed domain names (i.e., each is confusingly similar to Complainant's trademark).
The Panel determines that the disputed domain names are confusingly similar to Complainant's YELLOW PAGES trademark.
Complainant argues that Respondent lacks rights or legitimate interests in the disputed domain names. Complainant alleges that Respondent has deliberately adopted its trademark in connection with providing a substantially similar service in Australia, lacks physical presence in Australia, and is engaged in a pattern of fraudulent conduct in Australia (i.e. carrying out a “scam” involving Complainant's existing customers).
Respondent counters that the disputed domain names incorporate its business name since 2007, that it has developed and implemented a business plan involving the provision of online business to consumer directory services involving a number of geographic territories (including Austria, Canada, Germany, the United States and Switzerland), that it has formed a good faith belief that it is entitled to use the term “yellow page” in domain names to describe its services even if that term (or a close approximation) is registered as a trademark in a particular national jurisdiction, and that it is providing a bona fide service to consumers.
Respondent acknowledges that it was aware of Complainant's trademark registrations in Australia when it registered the disputed domain names. Respondent anticipated that it might need to seek invalidation of Complainant's Australian trademark registrations (presumably in order to avoid infringement liability). In this regard, Respondent may not rely on paragraph 4(c)(i) of the Policy to establish a bona fide offering of services under the disputed domain names “before any notice to you of the dispute” because Respondent should reasonably have anticipated that Complainant would object (as it rapidly did) to Respondent's registration and use of the disputed domain names.
Respondent was known as “Yellow Page (Netherlands) BV” when it registered the disputed domain names. It is not clear that Complainant would have objected to Respondent's registration and use of the disputed domain names were they limited to the term “yellow page” without inclusion of the geographic identifiers (e.g., “Adelaide”, “Melbourne”, and so forth) as such domain names (i.e. without geographic identifiers) are widely in use for many countries. Complainant's specific objection is that Respondent is targeting the Australian market, and has done so by incorporating Australian geographic terms in the disputed domain names. In light of the fact that the parties are in dispute concerning specific domain names involving Australian geographic identifiers, and that Respondent has not been known by domain names including those geographic identifiers (though it might have been commonly known as <yellowpage-netherlands.com>), the Panel considers that for purposes of this proceeding Respondent has not been commonly known by the disputed domain names within the meaning of paragraph 4(c)(ii) of the Policy.
Respondent acknowledges that it is in business to make a profit, and its use of the disputed domain names could not reasonably be considered legitimate “noncommercial” use within the meaning of paragraph 4(c)(iii) of the Policy.
The central question regarding rights or legitimate interests is whether Respondent's use of the disputed domain names should be considered “fair use”.
It is commonly understood in trademark law that a descriptive term that has taken on the function of distinguishing the good or service of an enterprise (i.e. a trademark) may nevertheless be used “fairly” by third parties in its descriptive sense without necessarily infringing the rights of the trademark holder (see, e.g., Case C-63/97, Bayerische Motorenwerke (BMW) and BMW Nederland BV v. Ronald Karel Deenik, 1999 E.C.R. I-905 (Court of Justice of the European Communities)).
The present proceeding presents a difficult jurisprudential issue regarding the fair use of trademark terms in domain names.5 Respondent is making non-infringing use of a trademark term in some jurisdictions (e.g., Complainant does not have trademark rights in YELLOW PAGES in the United States, and it appears that the U.S. Patent and Trademark Office (USPTO) requires applicants for trademark registrations incorporating “yellow pages” to disclaim exclusive rights in that term).6 Respondent may have “descriptive” fair use rights with respect to YELLOW PAGES in some jurisdictions (though Respondent has not expressly identified jurisdictions where YELLOW PAGES is registered as a trademark but nonetheless has been determined to be open to fair descriptive use). Respondent has provided a decision of the German Trademark Office that invalidated trademark registration of the German-language equivalent of YELLOW PAGES. The grounds of that decision may be unique to the circumstances of that case and, in any event, the decision was reversed and is presently on further appeal. Respondent appears at least to have the right to use the term “yellow page” in a domain name in and for the United States. In U.S. trademark law, geographic identifiers generally may not be protected as trademark terms in their descriptive sense.7 Non-infringing or fair use in and for the United States should in principle extend to incorporating or combining “yellow page” with terms describing geographic locations in Australia (where used in the United States).
Complainant argues that Respondent should not be entitled to registration and “fair” use of the disputed domain names because Respondent (a) is specifically targeting businesses in Australia to sell its directory services (b) has no physical presence (or other obvious connection) to Australia and (c) is using the disputed domain names to “scam” Australian business customers of Complainant.
The Panel considers that the service provided by Respondent under the disputed domain names is not geographically restricted to Internet users or business customers in Australia. It is perfectly plausible that a person in New Zealand, Vietnam or the United States may want to identify the vendor of a good or service in Australia and may use an online business to consumer directory to accomplish that objective. It may be that the most frequent users of online directories listing businesses in Australia will be located in Australia, but that should not necessarily preclude Respondent (who is not in Australia) from fairly providing a service for customers outside Australia. The Panel determines that, in its assessment, Respondent is making fair use of Complainant's trademark term YELLOW PAGES in the disputed domain names because it is providing services under the disputed domain names outside the territorial jurisdiction where Complainant holds trademark rights, and with respect to Internet users in jurisdictions where the term YELLOW PAGES is not protected by trademark rights or is subject to fair descriptive use (e.g., the United States).
Complainant's argument concerning the “non-legitimate” (i.e. scam) use of the disputed domain names by Respondent might have had greater force if the evidence Complainant presented was more persuasive. Complainant on several occasions repeated that it received complaints from its customers regarding telefaxes received from Respondent, but Complainant failed to provide any evidence of such complaints. Complainant must surely have anticipated the need to support such an allegation with evidence. Complainant provided a form of telefax transmission from Respondent, but that telefax does not indicate that it originates with Complainant, does not indicate the recipient, does not demonstrate or suggest any frequency of use, and does not generally establish that Respondent has engaged in a “scam”.
The Panel acknowledges that its decision presents certain difficulties for Complainant in terms of enforcing its Australian trademarks in respect to domain names such as those in the present case which may be in use across several jurisdictions outside of Australia. However, the Policy is not intended to address all potential acts of trademark infringement. In an Australian court, Complainant may be able to demonstrate that through actions with a direct, foreseeable and substantial effect within the territory of Australia, Respondent is infringing Complainant's trademark rights. Moreover, if a court is presented with material evidence of misconduct on the part of Respondent (i.e. conducting a “scam” directed at Australian business customers), surely there are remedies under Australian law. But this Panel rendering a decision using its limited inquiry authority under the Policy is reluctant to try and convict Respondent of fraudulent activity on the basis of the single telefax form furnished by Complainant.
The Panel determines that Respondent has demonstrated sufficient legitimate “fair” use of the disputed domain names to rebut Complainant's allegation regarding Respondent's lack of rights or legitimate interests in the disputed domain names. This determination does not address whether Respondent may be infringing Complainant's trademark rights in Australia, nor does it address whether Respondent may be engaging in some other unlawful conduct under the laws of Australia. A dispute settlement proceeding under the Policy is not the appropriate forum for determinations of infringement and/or for specifically addressing allegations of fraud.
Complainant has not been able to demonstrate to the Panel on the evidence in this Policy proceeding that Respondent lacks rights or legitimate interests in the disputed domain names, and does not succeed in this proceeding. The Panel exercises administrative economy and does not address the question of bad faith registration and use.
1 Complainant has furnished a redacted license agreement between Telstra and Sensis that defines the licensed “Territory” to mean “all those countries where Sensis provides any of the Products or Services”. There is sufficient evidence to infer that Australia is included in the licensed territory as asserted by Complainant.
2 Panel search of “yellow pages” using Google search engine of July 12, 2010. The Panel also searched “yellow page”, which returned substantially fewer results, but nevertheless a large number. The number of ‘hits” for each set of search terms is so large that an objective comparison of the frequency of use of the “competing terminology” is not suggested by the Panel.
3 Addition of the generic top level domain identifier (gTLD) “.com” is not relevant for the purpose of analysis of confusing similarity under the Policy in cases such as this.
4 The Panel appreciates that the “information sets” covered by directories, including common “yellow page(s)” directories, today encompass many groups that are not defined by geography.
5 This Panel has rendered decisions allowing a third-party to establish rights or legitimate interests in a domain name based on trademark registration and use in a national jurisdiction other than where the complaining party holds trademark rights (Lexicon Marketing Operating Luxembourg, S.A.R.L v. Facundo de Giorgio, WIPO Case No. D2006-0730), and has allowed a third-party to establish a bona fide offering of goods or services prior to notice of a dispute in a country other than that where a trademark was conclusively registered (Hogrefe AG v. Ney Limonge, WIPO Case No. D2008-1206) and Physik Instrumente GmbH. & Co. v. Stefan Kerner and Jeremy Kerner and Magic Moments Design Limited, WIPO Case No. D2000-1001).
6 Panel search of “yellow pages” on the USPTO TESS database of July 11, 2010 indicates routine disclaimer by trademark applicants of exclusive rights in the term “yellow pages”. This implies that the USPTO has determined that the terms are generic or commonly descriptive. This does not prevent the registration of combination marks using “yellow pages”.
7 Collective and certification marks (e.g., wine growing regions) may be subject to a different treatment, but that is not relevant here.

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Tsidulko v. K & L Int'l Trading, Inc.
Tsidulkov.K & L Int'l Trading, Inc.
Dmitry TSIDULKO, appellant, v. K & L INT'L TRADING, INC., et al., respondents.
William Pager, Brooklyn, NY, for appellant. Cheven, Keely & Hatzis, New York, NY (William B. Stock of counsel), for respondents.
William Pager, Brooklyn, NY, for appellant.
Cheven, Keely & Hatzis, New York, NY (William B. Stock of counsel), for respondents.
WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, L. PRISCILLA HALL, and JEFFREY A. COHEN, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Rothenberg, J.), dated October 8, 2015, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident.
In support of their motion for summary judgment dismissing the complaint, the defendants met their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197 ; Gaddy v. Eyler, 79 N.Y.2d 955, 956–957, 582 N.Y.S.2d 990, 591 N.E.2d 1176 ). The defendants submitted competent medical evidence establishing, prima facie, that none of the alleged injuries to the cervical and lumbar regions of the plaintiff's spine constituted a serious injury under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) (see Staff v. Yshua, 59 A.D.3d 614, 874 N.Y.S.2d 180 ), and that, in any event, the alleged injuries were not caused by the subject accident (see generally Jilani v. Palmer, 83 A.D.3d 786, 787, 920 N.Y.S.2d 424 ).
In opposition, however, the plaintiff raised a triable issue of fact as to whether he sustained serious injuries to the cervical and lumbar regions of his spine under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102(d), and as to whether the alleged injuries were caused by the accident (see Perl v. Meher, 18 N.Y.3d 208, 218–219, 936 N.Y.S.2d 655, 960 N.E.2d 424 ; Jilani v. Palmer, 83 A.D.3d at 787, 920 N.Y.S.2d 424 ). Accordingly, the Supreme Court should have denied the defendants' motion.


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It is unclear as to where the Florys listed below fit into the history of other known Florys in Germany. They are Catholic, not Lutheran, and they do not live near Birkenau. There is a record of Caspar Flory, the progenitor of the Horcheim Florys as coming fromAlveneu of Graubuenden in Switzerland. The area is to the east of Bern and not near the stronghold of the Floris of Solothurn. The evidence of this family, however, indicates again that most, if not all of the Flori families in Germany at one time passed through Switzerland.
1. CASPAR1 FLORY was born in Switzerland and came to Germany from Alvenau in Graubunden. He joined the St. Sebastian Brotherhood, with his son, Cornelius, in 1640.
2. CORNELIUS2 FLORY (CASPAR1). He married MARIA in Horchheim, near Koblenz, Germany.
i. OTILIA3 FLORY, b. June 02, 1658, Horchheim, near Koblenz, Germany.
ii. MARIA FLORY, b. October 03, 1660.
iii. BARBARA FLORY, b. December 13, 1662, Horchheim, near Koblenz, Germany.
iv. MARGARETHA FLORY, b. August 02, 1665.
v. ANNA BARBARA FLORY, b. May 27, 1668, Horchheim, near Koblenz, Germany.
vi. ANNA MARIA FLORY, b. May 27, 1668, Horchheim, near Koblenz, Germany.
vii. WERNER FLORY, b. January 14, 1670/71, Horchheim, near Koblenz, Germany.
3. viii. JOHANN FLORY, b. January 22, 1672/73, Horchheim, near Koblenz, Germany; d. July 29, 1720, Horchheim, near Koblenz, Germany.
ix. JACOB FLORY, b. May 03, 1676, Horchheim, near Koblenz, Germany.
x. ANNA MARIE FLORY, b. September 05, 1677, Horchheim, near Koblenz, Germany.
3. JOHANN3 FLORY (CORNELIUS2, CASPAR1) was born January 22, 1672/73 in Horchheim, near Koblenz, Germany, and died July 29, 1720 in Horchheim, near Koblenz, Germany. He married AMALIA HEPP November 26, 1697 in Horchheim, near Koblenz, Germany, daughter of JOHAN JACOB HEPP.
i. PHILIPP JACOB4 FLORY, b. June 02, 1698, Horchheim, near Koblenz, Germany.
ii. JOHANN CASPAR FLORY, b. April 09, 1700, Horchheim, near Koblenz, Germany.
4. iii. JOHANN FLORY, b. June 19, 1702, Horchheim, near Koblenz, Germany; d. July 13, 1773, Horchheim, near Koblenz, Germany.
iv. ANNA FLORY, b. December 13, 1703, Horchheim, near Koblenz, Germany.
v. NICKOLAUS FLORY, b. February 23, 1709/10, Horchheim, near Koblenz, Germany.
vi. OTILIA FLORY, b. February 06, 1712/13, Horchheim, near Koblenz, Germany.
4. JOHANN4 FLORY (JOHANN3, CORNELIUS2, CASPAR1) was born June 19, 1702 in Horchheim, near Koblenz, Germany, and died July 13, 1773 in Horchheim, near Koblenz, Germany. He married (1) ANNA MILTZ May 20, 1731 in Horchheim, near Koblenz, Germany. He married (2) ANNA KATHARINA May 20, 1731 in Horchheim, near Koblenz, Germany.
The family has traceably lived in Horchheim since the beginning of the 18th century. The family is said to have come from France via Austria and, for the most part, is Roman Catholic. Johann, like many of the family was a baker.
ii. ANNA FLORY, b. December 22, 1724, Horchheim, near Koblenz, Germany.
iii. MARIA JOHANNETTA FLORY, b. February 19, 1727/28, Horchheim, near Koblenz, Germany.
iv. GERTRUD FLORY, b. April 18, 1731, Horchheim, near Koblenz, Germany.
v. ANNA MARIA FLORY, b. September 26, 1732, Horchheim, near Koblenz, Germany.
vi. ANNA MARIA5 FLORY, b. May 22, 1737, Horchheim, near Koblenz, Germany.
6. vii. PETER FLORY, b. June 17, 1742, Horchheim, near Koblenz, Germany; d. June 21, 1799, Horchheim, near Koblenz, Germany.
5. JOHANN5 FLORY (JOHANN4, JOHANN3, CORNELIUS2, CASPAR1) was born September 11, 1726 in Horchheim, near Koblenz, Germany, and died October 31, 1802 in Horchheim, near Koblenz, Germany. He married MARIA MAGDELENA GOBEL November 14, 1751 in Horchheim, near Koblenz, Germany, daughter of ANTON GOBEL and MARGARETE. Maria was christened on Jan 10, 1714.
7. i. JAKOB6 FLORY, b. January 26, 1756, Horchheim, near Koblenz, Germany; d. March 10, 1816, Horchheim, near Koblenz, Germany.
6. PETER5 FLORY (JOHANN4, JOHANN3, CORNELIUS2, CASPAR1) was born June 17, 1742 in Horchheim, near Koblenz, Germany, and died June 21, 1799 in Horchheim, near Koblenz, Germany. He married ANNA BARBARA HARTUNG November 14, 1770 in Horchheim, near Koblenz, Germany.
8. i. JOHANN6 FLORY, b. June 06, 1775, Horchheim, near Koblenz, Germany; d. January 06, 1841, Horchheim, near Koblenz, Germany.
9. ii. ANTON FLORY, b. September 30, 1778, Horchheim, near Koblenz, Germany; d. December 25, 1862, Horchheim, near Koblenz, Germany.
7. JAKOB6 FLORY (JOHANN5, JOHANN4, JOHANN3, CORNELIUS2, CASPAR1) was born January 26, 1756 in Horchheim, near Koblenz, Germany, and died March 10, 1816 in Horchheim, near Koblenz, Germany. He married ELISABETH OPER October 28, 1800 in Horchheim, near Koblenz, Germany, daughter of JOHANN OPER and GERTRUD STEURAUFF.
i. APOLLONIA7 FLORY, b. April 25, 1812, Horchheim, near Koblenz, Germany; d. May 16, 1881, Horchheim, near Koblenz, Germany; m. JOHANN JOSEPH LEIKERT, 1839, Horchheim, near Koblenz, Germany. Johann was a master bricklayer/builder, master carpenter, building contractor.
ii. KATHARINA FLORY. She was godparent of child of her sister.
8. JOHANN6 FLORY (PETER5, JOHANN4, JOHANN3, CORNELIUS2, CASPAR1) was born June 06, 1775 in Horchheim, near Koblenz, Germany, and died January 06, 1841 in Horchheim, near Koblenz, Germany. He married MARIA ANNA BOHN August 29, 1815 in Horchheim, near Koblenz, Germany. JOHANN FLORY was a baker and innkeeper in Horchheim.
10. i. ANTON7 FLORY, b. October 24, 1817, Horchheim, near Koblenz, Germany; d. April 10, 1893.
ii. ELISABETH FLORY, b. July 15, 1823, Horchheim, near Koblenz, Germany; d. June 20, 1881, Horchheim, near Koblenz, Germany; m. MATTHIAS LEIKERT, April 30, 1850, Horchheim, near Koblenz, Germany. MATTHIAS LEIKERT was a master bricklayer and master carpenter.
9. ANTON6 FLORY (PETER5, JOHANN4, JOHANN3, CORNELIUS2, CASPAR1) was born September 30, 1778 in Horchheim, near Koblenz, Germany, and died December 25, 1862 in Horchheim, near Koblenz, Germany. He married MARIA ANNA STRUTH April 17, 1804 in Horchheim, near Koblenz, Germany. ANTON FLORY was a master Baker in Horchheim.
11. i. MATHIAS JOSEPH7 FLORY, b. March 19, 1817, Horchheim, near Koblenz, Germany; d. February 12, 1852, Horchheim, near Koblenz, Germany.
ii. MARIA ANNA FLORY, b. March 19, 1819, Horchheim, near Koblenz, Germany; d. June 06, 1899, Horchheim, near Koblenz, Germany.
12. iii. ANTON FLORY, b. March 24, 1824, Horchheim, near Koblenz, Germany; d. September 15, 1876, Horchheim, near Koblenz, Germany.
10. ANTON7 FLORY (JOHANN6, PETER5, JOHANN4, JOHANN3, CORNELIUS2, CASPAR1) was born October 24, 1817 in Horchheim, near Koblenz, Germany, and died April 10, 1893. He married KATHARINA ALSBACH June 06, 1854 in Horchheim, near Koblenz, Germany, daughter of MATTHIAS ALSBACH and GERTRUD JUNGENHILD. ANTON FLORY was a master baker and innkeeper in Horchheim.
13. i. JOSEPH MATTHIAS8 FLORY, b. January 22, 1858, Horchheim, near Koblenz, Germany; d. August 28, 1940, Horchheim, near Koblenz, Germany.
14. ii. WILHELM FLORY, b. December 15, 1859, Horchheim, near Koblenz, Germany; d. October 18, 1944, Duisburg, Germany.
11. MATHIAS JOSEPH7 FLORY (ANTON6, PETER5, JOHANN4, JOHANN3, CORNELIUS2, CASPAR1) was born March 19, 1817 in Horchheim, near Koblenz, Germany, and died February 12, 1852 in Horchheim, near Koblenz, Germany. He married (1) CACILIE MANDT in Horchheim, near Koblenz, Germany. He married (2) CHRISTINA ARENZ in Horchheim, near Koblenz, Germany.
15. i. MARGARETHA8 FLORY, b. December 04, 1852, Horchheim, near Koblenz, Germany; d. January 25, 1917, Koin-Kalk.
12. ANTON7 FLORY (ANTON6, PETER5, JOHANN4, JOHANN3, CORNELIUS2, CASPAR1) was born March 24, 1824 in Horchheim, near Koblenz, Germany, and died September 15, 1876 in Horchheim, near Koblenz, Germany. He married MARGARETHA ERBEN November 16, 1852 in Horchheim, near Koblenz, Germany, daughter of JOHANN ERBEN and ANNA EICH.
16. i. ANTON8 FLORY, b. January 23, 1856, Horchheim, near Koblenz, Germany.
17. ii. KATHARINA FLORY, b. October 18, 1857, Horchheim, near Koblenz, Germany; d. October 18, 1895, Horchheim, near Koblenz, Germany.
18. iii. FRANZ FLORY, b. April 13, 1860, Horchheim, near Koblenz, Germany; d. December 18, 1924, Bad Godesberg, Germany.
19. iv. MARGARETE FLORY, b. January 28, 1863, Horchheim, near Koblenz, Germany; d. May 12, 1929, Horchheim, near Koblenz, Germany.
20. v. CONRAD FLORY, b. March 23, 1866, Horchheim, near Koblenz, Germany.
vi. JOHANN FLORY, b. Horchheim, near Koblenz, Germany; d. Horchheim, near Koblenz, Germany.
21. vii. AUGUST FLORY, b. April 06, 1871, Horchheim, near Koblenz, Germany; d. November 03, 1934, Horchheim, near Koblenz, Germany.
13. JOSEPH MATTHIAS8 FLORY (ANTON7, JOHANN6, PETER5, JOHANN4, JOHANN3, CORNELIUS2, CASPAR1) was born January 22, 1858 in Horchheim, near Koblenz, Germany, and died August 28, 1940 in Horchheim, near Koblenz, Germany. He married KATHARINA KRAUS January 02, 1882 in Horchheim, near Koblenz, Germany, daughter of ANTON KRAUS and AGNES LOSEN. JOSEPH MATTHIAS FLORY was a master baker and innkeeper in Horchheim.
22. i. ANTON9 FLORY, b. September 14, 1883, Horchheim, near Koblenz, Germany; d. March 23, 1957, Horchheim, near Koblenz, Germany.
ii. ANTON JOSEPH MAXIMUS FLORY, b. December 02, 1886, Horchheim, near Koblenz, Germany; m. ELSA IDA LOOS, December 28, 1916, Berlin-Wilmersdorf, Germany.
23. iii. MARIA GERTRUDE FLORY, b. February 20, 1898, Horchheim, near Koblenz, Germany.
24. iv. AGNES FLORY, b. September 24, 1901, Horchheim, near Koblenz, Germany.
14. WILHELM8 FLORY (ANTON7, JOHANN6, PETER5, JOHANN4, JOHANN3, CORNELIUS2, CASPAR1) was born December 15, 1859 in Horchheim, near Koblenz, Germany, and died October 18, 1944 in Duisburg, Germany. He married JOHANNA PETERS September 11, 1888 in Koblenz, Germany, daughter of LUDWIG PETERS and ELISABETH SCHNEIDER. WILHELM FLORY was a customs Officer and children were Protestant. JOHANNA PETERS was also a Protestant.
i. ELISABETH META9 FLORY, b. April 30, 1890, Koblenz, Germany; d. April 17, 1902, Lemgo, Lippe Co., Germany.
25. ii. JOHANNA FLORY, b. April 08, 1893, Koblenz, Germany.
iii. WILHELM FLORY, b. January 12, 1896, Koblenz, Germany; m. ANNALIESE TELOH, August 19, 1941, Duisburg, Germany.
iv. LUISE FLORY, b. March 12, 1898, Koblenz, Germany; d. September 21, 1898, Lemgo, Lippe Co., Germany.
15. MARGARETHA8 FLORY (MATHIAS JOSEPH7, ANTON6, PETER5, JOHANN4, JOHANN3, CORNELIUS2, CASPAR1) was born December 04, 1852 in Horchheim, near Koblenz, Germany, and died January 25, 1917 in Koin-Kalk. She married JAKOB SABEL April 10, 1875.
26. i. ANNA MARIA9 SABEL, b. November 12, 1882, Ehrenbreitstein (Koblenz); d. February 19, 1943, Koin-Kalk.
16. ANTON8 FLORY (ANTON7, ANTON6, PETER5, JOHANN4, JOHANN3, CORNELIUS2, CASPAR1) was born January 23, 1856 in Horchheim, near Koblenz, Germany. He married WILHELMINE. ANTON FLORY was a railway inspector and his wife was English.
ii. ROSCHEN FLORY, m. TICKE.
17. KATHARINA8 FLORY (ANTON7, ANTON6, PETER5, JOHANN4, JOHANN3, CORNELIUS2, CASPAR1) was born October 18, 1857 in Horchheim, near Koblenz, Germany, and died October 18, 1895 in Horchheim, near Koblenz, Germany. She married PETER BREITBACH 1890 in Horchheim, near Koblenz, Germany. PETER BREITBACH married wife’s sister, Margarete.
ii. CONRAD BREITBACH, b. November 1894, Horchheim, near Koblenz, Germany; d. January 06, 1915, Vosges Mountains.
18. FRANZ8 FLORY (ANTON7, ANTON6, PETER5, JOHANN4, JOHANN3, CORNELIUS2, CASPAR1) was born April 13, 1860 in Horchheim, near Koblenz, Germany, and died December 18, 1924 in Bad Godesberg, Germany. He married ELISABETH KRAMER May 15, 1888 in Konigswinter, Germany. FRANZ FLORY was a master baker in Bad Godesberg.
i. FRANZ9 FLORY, b. April 12, 1889, Bad Godesberg, Germany; d. November 08, 1931, Bad Godesberg, Germany; m. GERTRUD STRAHL, September 05, 1918, Bonn, Germany. FRANZ was a baker.
ii. MARIA FLORY, b. September 30, 1890, Bad Godesberg, Germany.
iii. ELISABETH FLORY, b. March 27, 1892, Bad Godesberg, Germany; m. LOUIS LUDGER, a druggist, July 10, 1919, Bad Godesberg, Germany.
iv. MARGARETE FLORY, b. May 14, 1893, Bad Godesberg, Germany; d. October 08, 1961, Bad Godesberg, Germany.
27. v. AUGUST FLORY, b. August 23, 1895, Bad Godesberg, Germany; d. October 27, 1938, Bonn, Germany.
vi. PETER FLORY, b. March 12, 1897, Bad Godesberg, Germany; d. November 27, 1918, Bad Godesberg, Germany. PETER FLORY was a baker and never married.
28. vii. ANNA FLORY, b. March 20, 1899, Bad Godesberg, Germany.
29. viii. HELENE FLORY, b. March 26, 1901, Bad Godesberg, Germany; d. April 08, 1950, Bad Godesberg, Germany.
30. ix. KATHE FLORY, b. June 17, 1904, Bad Godesberg, Germany.
19. MARGARETE8 FLORY (ANTON7, ANTON6, PETER5, JOHANN4, JOHANN3, CORNELIUS2, CASPAR1) was born January 28, 1863 in Horchheim, near Koblenz, Germany, and died May 12, 1929 in Horchheim, near Koblenz, Germany. She married PETER BREITBACH November 25, 1896 in Horchheim, near Koblenz, Germany. MARGARETE FLORY married sister Katharina’s husband.
31. i. JULIANE9 BREITBACH, b. November 17, 1897, Horchheim, near Koblenz, Germany.
ii. ANTON BREITBACH, b. 1903, Horchheim, near Koblenz, Germany; d. 1903, Horchheim, near Koblenz, Germany.
20. CONRAD8 FLORY (ANTON7, ANTON6, PETER5, JOHANN4, JOHANN3, CORNELIUS2, CASPAR1) was born March 23, 1866 in Horchheim, near Koblenz, Germany. He married ANNA MARIA GIESS October 17, 1895 in Horchheim, near Koblenz, Germany.
i. WILHELM9 FLORY, b. March 25, 1896, Horchheim, near Koblenz, Germany; d. July 15, 1947, Horchheim, near Koblenz, Germany. WILHELM FLORYwas a baker and never married.
ii. ANTON JOSEPH FLORY, b. March 17, 1900, Horchheim, near Koblenz, Germany; d. February 02, 1945, Horchheim, near Koblenz, Germany.
iii. FRANZ FLORY, b. August 31, 1904, Horchheim, near Koblenz, Germany; d. 1906, Horchheim, near Koblenz, Germany.
iv. PETER FLORY, b. February 20, 1915, Horchheim, near Koblenz, Germany; d. May 08, 1942, Juchnow, Russia. PETER FLORY was a baker and killed in action during WWII.
21. AUGUST8 FLORY (ANTON7, ANTON6, PETER5, JOHANN4, JOHANN3, CORNELIUS2, CASPAR1) was born April 06, 1871 in Horchheim, near Koblenz, Germany, and died November 03, 1934 in Horchheim, near Koblenz, Germany. He married ANNA MARIA SCHMIDT January 27, 1903 in Horchheim, near Koblenz, Germany.
32. i. KATHARINA9 FLORY, b. November 18, 1903, Horchheim, near Koblenz, Germany.
ii. GEORG FLORY, b. September 13, 1905, Horchheim, near Koblenz, Germany; m. GERTRUD HERMANN, May 05, 1936, Maria Laach, Germany.
33. iii. CONRAD FLORY, b. July 17, 1907, Horchheim, near Koblenz, Germany.
34. iv. ANTON FLORY, b. August 11, 1908, Horchheim, near Koblenz, Germany; d. January 01, 1942, Pustynka, Russia.
35. v. JULIANE FLORY, b. March 23, 1910, Horchheim, near Koblenz, Germany.
36. vi. KAROLINE AUGUSTE FLORY, b. July 15, 1913, Horchheim, near Koblenz, Germany.
37. vii. PETER AUGUST FLORY, b. September 09, 1916, Horchheim, near Koblenz, Germany.
viii. HEINRICH FLORY, b. May 18, 1919, Horchheim, near Koblenz, Germany; d. November 15, 1919, Horchheim, near Koblenz, Germany.
ix. KARL FLORY, b. June 07, 1922, Horchheim, near Koblenz, Germany; d. September 29, 1945. KARL FLORY died as Russian prisoner.
22. ANTON9 FLORY (JOSEPH MATTHIAS8, ANTON7, JOHANN6, PETER5, JOHANN4, JOHANN3, CORNELIUS2, CASPAR1) was born September 14, 1883 in Horchheim, near Koblenz, Germany, and died March 23, 1957 in Horchheim, near Koblenz, Germany. He married MARIA KALLENECKER January 20, 1913 in Ehrenbreitstein/Rhein, Germany. ANTON FLORY was a baker and innkeeper in Horchheim.
38. i. WERNER10 FLORY, b. November 23, 1919, Horchheim, near Koblenz, Germany.
ii. WILHELM FLORY, b. April 07, 1922, Horchheim, near Koblenz, Germany; d. July 29, 1943, Sicily, Italy.
23. MARIA GERTRUDE9 FLORY (JOSEPH MATTHIAS8, ANTON7, JOHANN6, PETER5, JOHANN4, JOHANN3, CORNELIUS2, CASPAR1) was born February 20, 1898 in Horchheim, near Koblenz, Germany. She married WINFRIED BOWDEN STEPHENS 1919 in Horchheim, near Koblenz, Germany.
i. WINFRED BOWDEN10 STEPHENS, b. July 22, 1920, Horchheim, near Koblenz, Germany; d. December 10, 1920, Horchheim, near Koblenz, Germany.
39. ii. JAMES JOSEPH STEPHENS, b. March 05, 1928, Jacksonville, FL.
40. iii. MARY ANN STEPHENS, b. April 22, 1933.
41. iv. NANCY CAROL STEPHENS, b. February 17, 1937.
24. AGNES9 FLORY (JOSEPH MATTHIAS8, ANTON7, JOHANN6, PETER5, JOHANN4, JOHANN3, CORNELIUS2, CASPAR1) was born September 24, 1901 in Horchheim, near Koblenz, Germany. She married WILLY KOHLHASE November 26, 1933 in Horchheim, near Koblenz, Germany.
42. i. GISELA10 KOHLHASE, b. June 21, 1924, Horchheim, near Koblenz, Germany.
ii. NORBERT KOHLHASE, b. September 24, 1927, Hausfelde, Deutsch-Krone Co., Germany.
25. JOHANNA9 FLORY (WILHELM8, ANTON7, JOHANN6, PETER5, JOHANN4, JOHANN3, CORNELIUS2, CASPAR1) was born April 08, 1893 in Koblenz, Germany. She married PAUL NASHEN July 19, 1922 in Duisburg, Germany.
43. i. INGE10 NASHEN, b. June 22, 1923, Bonn, Germany.
44. ii. GERD NASHEN, b. July 10, 1928, Duisburg, Germany.
26. ANNA MARIA9 SABEL (MARGARETHA8 FLORY, MATHIAS JOSEPH7, ANTON6, PETER5, JOHANN4, JOHANN3, CORNELIUS2, CASPAR1) was born November 12, 1882 in Ehrenbreitstein (Koblenz), and died February 19, 1943 in Koin-Kalk. She married JOHANN PETER PELLETIER June 20, 1902 in Ehrenbreitstein (Koblenz).
45. i. JOSEF10 PELLETIER, b. July 06, 1902, Ehrenbreitstein (Koblenz); d. September 03, 1973, Ahrweiler, Alter.
ii. HEINZ PELLETIER, b. March 24, 1908, Aachen; d. September 04, 1943, Hazebrouck, Flanders; m. ANNI GABER.
46. iii. KARL PELLETIER, b. July 27, 1910, Koin-Kalk; d. March 10, 1988, Koin-Riehl.
27. AUGUST9 FLORY (FRANZ8, ANTON7, ANTON6, PETER5, JOHANN4, JOHANN3, CORNELIUS2, CASPAR1) was born August 23, 1895 in Bad Godesberg, Germany, and died October 27, 1938 in Bonn, Germany. He married ANTONIE SANDKUHLER February 01, 1921 in Recklinghausen, Germany.
47. i. WERNER10 FLORY, b. July 25, 1922, Bad Godesberg, Germany.
ii. ERNST FLORY, b. January 26, 1924, Bad Godesberg, Germany; d. July 31, 1943, Near Leningrad, Russia. He was killed in action during the war.
28. ANNA9 FLORY (FRANZ8, ANTON7, ANTON6, PETER5, JOHANN4, JOHANN3, CORNELIUS2, CASPAR1) was born March 20, 1899 in Bad Godesberg, Germany. She married ENGELBERT WALD April 23, 1923 in Bad Godesberg, Germany.
48. i. ANNELIESE10 WALD, b. April 26, 1924, Bad Godesberg, Germany.
ii. ENGLEBERT WALD, b. February 21, 1927, Bad Godesberg, Germany.
iii. INGE WALD, b. February 17, 1930, Roetgen, near Siegen, Germany; m. HEINZ WAGENER, February 08, 1955, Roetgen, near Siegen, Germany.
iv. ERNST WALD, b. July 29, 1934, Bad Godesberg, Germany; m. INGEBORG DICKOPP, 1963.
29. HELENE9 FLORY (FRANZ8, ANTON7, ANTON6, PETER5, JOHANN4, JOHANN3, CORNELIUS2, CASPAR1) was born March 26, 1901 in Bad Godesberg, Germany, and died April 08, 1950 in Bad Godesberg, Germany. She married FELIX FEIDEN August 13, 1927 in Bad Godesberg, Germany.
i. FELICITAS10 FEIDEN, b. January 01, 1931, Bad Godesberg, Germany; m. FRANZ JOSEPH BENTLER, August 11, 1955, Wittlich, Germany.
ii. KARL FEIDEN, b. July 22, 1934, Bad Godesberg, Germany.
30. KATHE9 FLORY (FRANZ8, ANTON7, ANTON6, PETER5, JOHANN4, JOHANN3, CORNELIUS2, CASPAR1) was born June 17, 1904 in Bad Godesberg, Germany. She married OTTO WAGENER August 02, 1932 in Siegen, Germany.
i. DORIS10 WAGENER, b. October 26, 1934, Siegen, Germany; m. WOLFGANG PAAR, March 03, 1962, Siegen, Germany.
ii. HANS OTTO WAGENER, b. October 30, 1939, Siegen, Germany.
31. JULIANE9 BREITBACH (MARGARETE8 FLORY, ANTON7, ANTON6, PETER5, JOHANN4, JOHANN3, CORNELIUS2, CASPAR1) was born November 17, 1897 in Horchheim, near Koblenz, Germany. She married HANS GEISSLER May 12, 1926 in Horchheim, near Koblenz, Germany.
49. i. HELMUTH10 GEISSLER, b. April 14, 1928, Horchheim, near Koblenz, Germany.
50. ii. MARGRIT GEISSLER, b. July 24, 1935, Horchheim, near Koblenz, Germany.
32. KATHARINA9 FLORY (AUGUST8, ANTON7, ANTON6, PETER5, JOHANN4, JOHANN3, CORNELIUS2, CASPAR1) was born November 18, 1903 in Horchheim, near Koblenz, Germany. She married VIKTOR JOHANN GEORG HOLL January 29, 1930 in Horchheim, near Koblenz, Germany. VIKTOR JOHANN GEORG HOLL was the brother of Hans Holl, who married wife’s sister.
i. MARGRIT10 HOLL, b. January 19, 1931, Saarbrucken, Germany.
ii. KARL HOLL, b. August 02, 1934.
33. CONRAD9 FLORY (AUGUST8, ANTON7, ANTON6, PETER5, JOHANN4, JOHANN3, CORNELIUS2, CASPAR1) was born July 17, 1907 in Horchheim, near Koblenz, Germany. He married DORA KRIEGER May 08, 1935 in Horchheim, near Koblenz, Germany.
i. ELFRIEDE10 FLORY, b. July 02, 1938, Horchheim, near Koblenz, Germany; d. February 10, 1945, Frankenthal/Pfalz, Germany.
ii. REINHOLD FLORY, b. May 30, 1949, Horchheim, near Koblenz, Germany.
iii. EDGAR FLORY, b. October 22, 1951, Horchheim, near Koblenz, Germany.
34. ANTON9 FLORY (AUGUST8, ANTON7, ANTON6, PETER5, JOHANN4, JOHANN3, CORNELIUS2, CASPAR1) was born August 11, 1908 in Horchheim, near Koblenz, Germany, and died January 01, 1942 in Pustynka, Russia. He married MARIA MAGDELENA DERKS 1937 in Bad Godesberg, Germany.
51. i. HANS DIETER10 FLORY, b. April 16, 1939, Bad Godesberg, Germany.
35. JULIANE9 FLORY (AUGUST8, ANTON7, ANTON6, PETER5, JOHANN4, JOHANN3, CORNELIUS2, CASPAR1) was born March 23, 1910 in Horchheim, near Koblenz, Germany. She married JOSEPH JAKOB NICK June 05, 1934 in Horchheim, near Koblenz, Germany. JOSEPH JAKOB NICK died a Russian prisoner.
52. i. KARIN10 NICK, b. September 16, 1935, Horchheim, near Koblenz, Germany.
36. KAROLINE AUGUSTE9 FLORY (AUGUST8, ANTON7, ANTON6, PETER5, JOHANN4, JOHANN3, CORNELIUS2, CASPAR1) was born July 15, 1913 in Horchheim, near Koblenz, Germany. She married HANS HOLL January 28, 1941 in Horchheim, near Koblenz, Germany.
i. ANNAKATHE10 HOLL, b. July 16, 1944, Horchheim, near Koblenz, Germany.
ii. PETER HOLL, b. August 01, 1948, Horchheim, near Koblenz, Germany.
37. PETER AUGUST9 FLORY (AUGUST8, ANTON7, ANTON6, PETER5, JOHANN4, JOHANN3, CORNELIUS2, CASPAR1) was born September 09, 1916 in Horchheim, near Koblenz, Germany. He married IRENE EHL April 08, 1953 in Schonstadt, near Vallendar/Rhein, Germany.
i. ANNA MARIA ROSA10 FLORY, b. January 24, 1955, Koblenz-Moselweiss, Germany.
38. WERNER10 FLORY (ANTON9, JOSEPH MATTHIAS8, ANTON7, JOHANN6, PETER5, JOHANN4, JOHANN3, CORNELIUS2, CASPAR1) was born November 23, 1919 in Horchheim, near Koblenz, Germany. He married JOHANN BERTRAM May 15, 1941 in Koblenz, Germany.
i. WERNER11 FLORY, b. September 26, 1941, Koblenz, Germany.
ii. BRIGITTE FLORY, b. January 26, 1947, Niederlahnstein, Germany.
iii. ROSEMARIE FLORY, b. February 25, 1949, Horchheim, near Koblenz, Germany.
iv. BETTINA FLORY, b. December 02, 1960, Horchheim, near Koblenz, Germany.
39. JAMES JOSEPH10 STEPHENS (MARIA GERTRUDE9 FLORY, JOSEPH MATTHIAS8, ANTON7, JOHANN6, PETER5, JOHANN4, JOHANN3, CORNELIUS2, CASPAR1) was born March 05, 1928 in Jacksonville, FL. He married NANCY ELLEN.
i. JAMES JOSEPH11 STEPHENS, b. November 20, 1951, Jacksonville, FL.
ii. JOHN TERRENCE STEPHENS, b. May 15, 1954, Jacksonville, FL.
iii. MARY KATHLEEN STEPHENS, b. January 11, 1956, Jacksonville, FL.
iv. CHRISTOPHER STEPHENS, b. December 26, 1957, New York, New York.
v. MARK STEPHENS, b. July 23, 1960, New York, New York.
40. MARY ANN10 STEPHENS (MARIA GERTRUDE9 FLORY, JOSEPH MATTHIAS8, ANTON7, JOHANN6, PETER5, JOHANN4, JOHANN3, CORNELIUS2, CASPAR1) was born April 22, 1933. She married JAMES JOSEPH MIDDLETON.
i. STEPHAN DAVID11 MIDDLETON, b. September 18, 1953, Jacksonville, FL.
ii. JULIANA MARIE MIDDLETON, b. March 05, 1956, Jacksonville, FL.
iii. SUSAN MARY MIDDLETON, b. December 06, 1958, Jacksonville, FL.
41. NANCY CAROL10 STEPHENS (MARIA GERTRUDE9 FLORY, JOSEPH MATTHIAS8, ANTON7, JOHANN6, PETER5, JOHANN4, JOHANN3, CORNELIUS2, CASPAR1) was born February 17, 1937. She married ROBERT FRITSCH.
i. ROBERT11 FRITSCH, b. December 05, 1959.
ii. CAROLYN FRITSCH, b. January 16, 1961.
42. GISELA10 KOHLHASE (AGNES9 FLORY, JOSEPH MATTHIAS8, ANTON7, JOHANN6, PETER5, JOHANN4, JOHANN3, CORNELIUS2, CASPAR1) was born June 21, 1924 in Horchheim, near Koblenz, Germany. She married BRUNO MARX May 24, 1947 in Berlin-Pankow, Germany.
i. CLAUDIA11 MARX, b. February 24, 1949, Hennef/Sieg., Germany.
43. INGE10 NASHEN (JOHANNA9 FLORY, WILHELM8, ANTON7, JOHANN6, PETER5, JOHANN4, JOHANN3, CORNELIUS2, CASPAR1) was born June 22, 1923 in Bonn, Germany. She married KURT PROBST October 06, 1949 in Sterkrade, Germany.
i. PETER11 PROBST, b. March 14, 1951, Bad Durkheim, Germany.
ii. DIETER PROBST, b. September 19, 1953, Bad Durkheim, Germany; d. February 11, 1957, Mannheim, Germany.
iii. MICHAEL PROBST, b. March 17, 1958, Bad Durkheim, Germany.
44. GERD10 NASHEN (JOHANNA9 FLORY, WILHELM8, ANTON7, JOHANN6, PETER5, JOHANN4, JOHANN3, CORNELIUS2, CASPAR1) was born July 10, 1928 in Duisburg, Germany. He married HELGA NEHLER April 08, 1957 in Oberhausen-Sterkrade, Germany.
i. BJORN11 NASHEN, b. April 12, 1960, Oberhausen-Sterkrade, Germany.
ii. ULF NASHEN, b. February 09, 1962, Oberhausen-Sterkrade, Germany.
45. JOSEF10 PELLETIER (ANNA MARIA9 SABEL, MARGARETHA8 FLORY, MATHIAS JOSEPH7, ANTON6, PETER5, JOHANN4, JOHANN3, CORNELIUS2, CASPAR1) was born July 06, 1902 in Ehrenbreitstein (Koblenz), and died September 03, 1973 in Ahrweiler, Alter. He married MARTHA HASSEL June 26, 1936 in Koin-Kalk.
i. DIETER11 PELLETIER, b. November 29, 1937, Koin-Kalk; m. MARION KREUGER, August 07, 1963, Essen.
46. KARL10 PELLETIER (ANNA MARIA9 SABEL, MARGARETHA8 FLORY, MATHIAS JOSEPH7, ANTON6, PETER5, JOHANN4, JOHANN3, CORNELIUS2, CASPAR1) was born July 27, 1910 in Koin-Kalk, and died March 10, 1988 in Koin-Riehl. He married ELISABETH SCHWAMBORN.
i. GERDA11 PELLETIER, b. September 26, 1941; m. HERZOG.
ii. ROLF PELLETIER, b. January 19, 1943.
47. WERNER10 FLORY (AUGUST9, FRANZ8, ANTON7, ANTON6, PETER5, JOHANN4, JOHANN3, CORNELIUS2, CASPAR1) was born July 25, 1922 in Bad Godesberg, Germany. He married SIBYLLE NIEDERPLUM December 28, 1950 in Bad Godesberg, Germany.
i. BRIGITTE11 FLORY, b. May 27, 1946, Bad Godesberg, Germany.
ii. ERNST-WERNER FLORY, b. October 28, 1951, Bad Godesberg, Germany.
48. ANNELIESE10 WALD (ANNA9 FLORY, FRANZ8, ANTON7, ANTON6, PETER5, JOHANN4, JOHANN3, CORNELIUS2, CASPAR1) was born April 26, 1924 in Bad Godesberg, Germany. She married ALBERT GRIEFENSTEIN April 10, 1950 in Maria Laach, Germany.
i. URSULA11 GRIEFENSTEIN, b. October 19, 1952, Bad Godesberg, Germany.
49. HELMUTH10 GEISSLER (JULIANE9 BREITBACH, MARGARETE8 FLORY, ANTON7, ANTON6, PETER5, JOHANN4, JOHANN3, CORNELIUS2, CASPAR1) was born April 14, 1928 in Horchheim, near Koblenz, Germany. He married JOSEPHA HERGES June 10, 1955 in Zeltingen, Germany.
i. MARGRIT11 GEISSLER, b. February 25, 1956, Horchheim, near Koblenz, Germany.
ii. HELMUT GEISSLER, b. May 15, 1957, Horchheim, near Koblenz, Germany; d. April 29, 1960, Horchheim, near Koblenz, Germany.
iii. STEPHANI GEISSLER, b. April 26, 1960, Horchheim, near Koblenz, Germany.
50. MARGRIT10 GEISSLER (JULIANE9 BREITBACH, MARGARETE8 FLORY, ANTON7, ANTON6, PETER5, JOHANN4, JOHANN3, CORNELIUS2, CASPAR1) was born July 24, 1935 in Horchheim, near Koblenz, Germany. She married HERMANN SCHUON March 15, 1958 in Johanniskloster Niederlahnstein, Germany.
i. HARALD11 SCHUON, b. November 03, 1959, Horchheim, near Koblenz, Germany.
51. HANS DIETER10 FLORY (ANTON9, AUGUST8, ANTON7, ANTON6, PETER5, JOHANN4, JOHANN3, CORNELIUS2, CASPAR1) was born April 16, 1939 in Bad Godesberg, Germany. He married KARIN SCHOPFER October 21, 1959 in Hamburg-Farmsen, Germany.
i. UTE11 FLORY, b. April 18, 1960, Hamburg-Farmsen, Germany.
ii. PETRA FLORY, b. March 31, 1962, Hamburg-Farmsen, Germany.
52. KARIN10 NICK (JULIANE9 FLORY, AUGUST8, ANTON7, ANTON6, PETER5, JOHANN4, JOHANN3, CORNELIUS2, CASPAR1) was born September 16, 1935 in Horchheim, near Koblenz, Germany. She married WERNER ZIMMERMAN June 22, 1959 in Horchheim, near Koblenz, Germany.
i. JORG WILHELM11 ZIMMERMAN, b. September 07, 1960, Horchheim, near Koblenz, Germany.
ii. STEPHAN REINHOLD ZIMMERMAN, b. June 27, 1962, Horchheim, near Koblenz, Germany. STEPHAN REINHOLD ZIMMERMAN was born as 100000th inhabitant of Koblenz.

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


37 C.F.R. 41.66 Time for filing briefs.
(d) Any appellant may file a rebuttal brief under § 41.71 within one month of the date of the examiner’s answer. The time for filing a rebuttal brief or an amended rebuttal brief may not be extended.
(e) No further submission will be considered and any such submission will be treated in accordance with § 1.939 of this title.
37 C.F.R. 41.71 Rebuttal brief.
(a) Within one month of the examiner’s answer, any appellant may once file a rebuttal brief.
(1) The rebuttal brief of the owner may be directed to the examiner’s answer and/or any respondent brief.
(2) The rebuttal brief of the owner shall not include any new or non-admitted amendment, or an affidavit or other evidence. See § 1.116 of this title for amendments, affidavits or other evidence filed after final action but before or on the same date of filing an appeal and § 41.63 for amendments, affidavits or other evidence filed after the date of filing the appeal.
(1) The rebuttal brief of any requester may be directed to the examiner’s answer and/or the respondent brief of the owner.
(2) The rebuttal brief of a requester may not be directed to the respondent brief of any other requester.
(3) No new ground of rejection can be proposed by a requester.
(4) The rebuttal brief of a requester shall not include any new or non-admitted affidavit or other evidence. See § 1.116(d) of this title for affidavits or other evidence filed after final action but before or on the same date of filing an appeal and § 41.63(c) for affidavits or other evidence filed after the date of filing the appeal.
(d) The rebuttal brief must include a certification that a copy of the rebuttal brief has been served in its entirety on all other parties to the proceeding. The names and addresses of the parties served must be indicated.
(e) If a rebuttal brief is timely filed under paragraph (a) of this section but does not comply with all the requirements of paragraphs (a) through (d) of this section, appellant will be notified of the reasons for non-compliance and provided with a non-extendable period of one month within which to file an amended rebuttal brief. If the appellant does not file an amended rebuttal brief during the one-month period, or files an amended rebuttal brief which does not overcome all the reasons for non-compliance stated in the notification, that appellant’s rebuttal brief and any amended rebuttal brief by that appellant will not be considered.
In the examiner’s answer, each appellant is given a period of one month from the mailing date of the examiner’s answer within which to file a rebuttal brief in response to the issues raised in the examiner’s answer and/or in the respondent brief of an opposing party. The one month period may not be extended. 37 CFR 41.66(d).
The rebuttal brief must (A) clearly identify each issue, and (B) point out where the issue was raised in the examiner’s answer and/or in the respondent brief. In addition, the rebuttal brief must be limited to issues raised in the examiner’s answer or in any respondent brief. A rebuttal brief will not be entered if it does not clearly identify each issue and/or is not limited to issues raised in the examiner’s answer or in any respondent brief. Such a rebuttal brief will remain in the file, but it will not be addressed nor considered, except to inform the appropriate party that it was not entered and why.
The rebuttal brief of a third party requester may not be directed to the respondent brief or any other third party requester. No new ground of rejection may be proposed by a third party requester.
After the examiner’s answer, only a rebuttal brief (or an amended rebuttal brief, where appellant is given one opportunity to correct a defective original rebuttal brief (MPEP § 2679)) will be received into the reexamination proceeding. No other submission will be considered, and any such other submission will be returned as an improper paper. 37 CFR 1.939.
If no rebuttal brief is received within the one month period set in the examiner’s answer, the Central Reexamination Unit (CRU) will issue a notification letter to parties using form paragraph 26.67, and will then forward the reexamination proceeding to the Board for decision on the appeal(s).
Appellant(s) was given a period of one month from the mailing date of the examiner’s answer within which to file a rebuttal brief in response to the examiner’s answer. No rebuttal brief has been received within that time period. Accordingly, the reexamination proceeding is being forwarded to the Board for decision on the appeal(s).
Prosecution remains closed. Any further reply/comments by any party will not be considered, and may be returned to the party that submitted it.
If one or more rebuttal briefs is/are timely received, see MPEP § 2679 for treatment of the rebuttal brief(s).


text:
(exechange) — Moscow, Russia, December 29, 2017 — Sergey Rezontov, finance chief of Mechel, leaves. As announced by Mechel PAO in a news release and in a regulatory filing published on Friday, December 29, 2017, Sergey V. Rezontov leaves his post as Chief Financial Officer at the Russian mining and metals company after about a year and a half in the position.
The exact date of Rezontov’s departure was not specified in the announcement. Obviously, it was an abrupt change.
Mechel has already removed the name of Rezontov as Chief Financial Officer from the leadership page.
Mechel did not name a replacement for the position of Chief Financial Officer.
In the announcement, the company did not detail the personal reasons causing Rezontov to leave the position, leaving room for speculation. Generally speaking, “personal reasons” may include, among others, family-related reasons, health reasons or disagreement.
Precise information about Rezontov’s future plans was not immediately available.
Generally speaking, it is often an alarm signal for investors when a CFO leaves the position with no date given and without a reasonable explanation.
The change follows a decline in the share price of Mechel PAO since January 2017.
Mechel PAO is chaired by Igor V. Zyuzin.
Igor V. Zyuzin has been the Chairman of Mechel PAO’s Board of Directors since July 2010.
Oleg V. Korzhov serves as CEO of Mechel PAO. Oleg V. Korzhov has been holding the position of Mechel’s Chief Executive Officer since January 2014.
Sergey V. Rezontov has been Mechel PAO’s Chief Financial Officer since June 15, 2016.
Prior to his appointment, in 2014-2016 Rezontov headed Mechel’s financial department.
In 2013-2014, he worked as deputy chief executive officer and financial officer of Lysva Metallurgical Company UK OOO.
In 2012, he was deputy director of Mechel’s treasury operations department.
In 2006-2012, he worked first as a specialist and then as head of Mechel’s corporate financing department.
In 2004-2006, he was manager of the metals and mining team in the corporate clients department of Commerzbank (Eurasia) ZAO.
Rezontov graduated from Plekhanov Russian Academy of Economics with a degree in management.
It is not completely certain what forces eventually triggered Sergey Rezontov’s move.

matches: V. V. V. V. V. V.