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On the trial of an action upon a promissory note, which is defended on the ground of its payment to the plaintiff, evidence is immaterial that the defendant was advised by counsel that the defence could not be maintained against a third person, who had brought a prior suit on the note, claiming to have bought it before maturity.
The schedule of assets filed by an insolvent debtor is competent evidence that at the time of filing it he did not own property not included therein.
In an action upon a promissory note, which is defended on the ground of its payment to the plaintiff before maturity, he cannot prove that, after the time of the alleged payment, he offered to transfer the note to a third person without any injunction of secrecy, and the defendant was told of the fact.
On the trial of an action upon a promissory note, which is defended on the ground of its payment, a witness for the plaintiff, after testifying in cross-examination that the question whether the note was paid was much discussed in the community, and he had taken part in such discussions, was asked by the defendant what was his theory of the way in which the plaintiff happened to hold the note if it was paid, and answered that he did not give any theory about the note, but supposed, as others did, how a case might come up. Held, that the plaintiff had no ground of exception.
On the issue whether a party repurchased with cash a promissory note from a person to whom he alleged that he previously sold it, evidence is competent that about the time of the alleged repurchase he was an insolvent debtor and a borrower of money to compromise with his creditors, as having some tendency to show that he had not the means with which to pay for the note.
On the trial of an action upon a promissory note, which the defendant contended that he had paid on a certain day, the plaintiff put in evidence that on a certain later day, in front of a tavern which the plaintiff had kept, the defendant said to an insurance agent that he had already told him twice that he should not get his life insured until he paid up the plaintiff, and at the same time pointed to the tavern. Thereupon the defendant was permitted to prove, against the plaintiff's objection, that the plaintiff sold and conveyed the cavern before the date fixed for this conversation. Held, that the plaintiff had no ground of exception.
In an action on a promissory note, which is defended on the ground of its payment to the plaintiff before maturity, it appeared that when it matured an assignment of the plaintiff's estate had been made under the insolvent law; and though one of the assignees was a witness on the trial, there was no evidence that the maker of the note ever spoke of it to either of them. Held, that the plaintiff had no ground of exception to the refusal of the judge to restrain the defendant from arguing to the jury on this absence of evidence as confirming the defence.
Rulings on the competency of evidence offered upon a motion for a new trial are subject to revision on exceptions.
The affidavit of a juror is admissible in denial or explanation of acts and declarations of his outside of the jury room, evidence of which has been introduced in support of a motion for a new trial on the ground that he had formed and expressed an opinion before the trial.
Affidavits of jurors cannot be received, even in support of a verdict, to prove the part taken by any of them in the discussions and votes in the jury room.
On a motion for a new trial upon the ground of the prejudice and bias of one of the jurors, evidence was introduced that before the trial he expressed an opinion of the merits of the case, and did not disclose it upon being interrogated by the court before the case was opened. Held, that he might testify, in reply, that the opinion which he expressed was based wholly upon hearsay, and that when he was interrogated he did not remember having expressed it and was conscious of no bias; but that his testimony that he did not vote against the plaintiff till all the other jurors had done so, and the testimony of other jurymen that he did not take part in the discussions in the jury room or attempt to influence them, was inadmissible.
WRIT OF REVIEW, dated June 13, 1870, of a judgment for the defendant in an action brought against her in the superior court on July 25, 1869, upon two promissory notes, made by her testator, payable to the plaintiff or bearer.
At the trial in the superior court, before Dewey, J., it appeared that the notes were each for $ 250, dated September 22, 1862, and secured by mortgage, and that one of them was payable April 1, 1867, and the other April 1, 1868. The defence was payment by the defendant's testator on April 17, 1863.
"The defendant testified that, about a year after the death of the testator, who was her husband, which occurred March 28, 1868, her attention was first called to the notes by Dexter Drake, who then claimed to own them, and to have purchased them from the plaintiff before they were due, and in the lifetime of the maker. She testified that she was sued by Drake upon the notes before the commencement of the plaintiff's action. The plaintiff, upon cross-examination, asked the defendant if she did not ascertain from counsel, while the notes were in Drake's hands, that she could not defend against Drake. The defendant objected; and the question was excluded. The plaintiff and Drake were each allowed, without objection, to testify that the defendant did say to them that she had taken counsel and had ascertained that she could not defend against Drake.
"The defendant called the register of the probate court as a witness; and offered to show that the plaintiff filed his petition in insolvency on March 18, 1867; and called upon the witness to produce the schedule of assets filed by the plaintiff. The plaintiff objected; but the judge admitted the schedule signed by the plaintiff, for the purpose of showing that the plaintiff asserted no claim upon the notes at that time.
"The plaintiff, in reply to the defendant's case, called among other witnesses William B. Caswell, and offered to prove that this witness had commenced a suit against the plaintiff in March 1866, and that the plaintiff, in the lifetime of the maker of the notes, offered, without any injunction of secrecy, to turn out the notes to the witness, in payment of the plaintiff's debt to the witness. The defendant objected, and the question was excluded. The witness was allowed to testify that he told the maker of the notes that the plaintiff offered to turn them out to the witness, and what their maker said in reply. It was not shown, nor was any offer made to show, that the witness ever saw said notes.
"The plaintiff having stated, as a witness, that he had compromised with his creditors not far from the time when he bought the notes from Drake for cash, was asked, upon cross-examination, whether at a certain time he borrowed money from the Shelburne Falls Bank with which to compromise with his creditors. The plaintiff's counsel objected. The defendant stated that he offered this evidence to show the improbability of the plaintiff's repurchasing these notes from Drake by cash as the plaintiff had stated. The judge said that 'he would allow the defendant to prove that the plaintiff borrowed money about that time;' and admitted the question to be put for that purpose; and the plaintiff answered that he did.
insurance agent, in front of the plaintiff's hotel, in which said maker said that he had already twice told the said Allen that he should not get his life insured until he had got Woodward paid up, at the same time pointing to the hotel, which the plaintiff had owned and kept, known as the Franklin House.' To control this evidence and contradict the witness, the defendant offered, against the plaintiff's objection, to put in the record of the deed, showing that the plaintiff had sold his hotel March 18, 1866. The judge admitted evidence of the date of the deed as bearing upon the question of time, but for no other purpose.
"In the opening to the jury the defendant's counsel stated that he relied, for proof of payment, upon a variety of circumstances, and among others upon the fact that the maker of the notes never called upon the assignees of the plaintiff to pay these notes, or ever spoke to them about the notes, although one of them became due April 1, 1867, after the appointment of the assignees.
"It was admitted or proved that the notes in suit were two of five given in payment of the purchase money for a farm sold by the plaintiff to the defendant's testator, payable in one, two, three, four and five years from April 1, 1863; and that in April 1863, or at farthest during the year commencing April 1, 1863, the testator paid to the plaintiff all of the other notes, together with a demand note for $ 1000, and some $ 400 or $ 500 besides, and a mortgage of $ 800, then on the place, at the time of the purchase due to other parties; and that during the autumn of 1862 he frequently expressed the desire to pay up all of the notes to the plaintiff as soon as possible. There was no evidence that the plaintiff, or any party holding the notes, said anything to their maker, or that he said anything to the holders of the notes, from April 1863 to the time of his death, about the notes or interest. The defendant testified she did not know that any such notes were in existence until about one year after the death of the testator. Samuel D. Bardwell, one of the assignees of the plaintiff, under the insolvency proceedings, was shown to have acted as his agent in compromising with his creditors, doing all of that business for him, the plaintiff not even knowing how much he paid his creditors on the dollar, nor how much to them all.
"From these facts and others, the defendant's counsel argued that the testator must have understood that the notes were paid. In the closing argument, the counsel was proceeding to argue that nothing was ever said to the assignees by the testator, although he lived a year after their appointment. The plaintiff objected to the defendant's counsel being allowed to proceed with this line of argument, because there had been no evidence introduced whether the testator had or had not spoken to the assignees about paying up these notes, and no evidence had been offered by either plaintiff or defendant as to this point. One of the assignees, Humphrey Stevens, had been called to identify certain deeds, but was not further examined. It appeared, in the course of the trial, that the assignees had been enjoined by order of the supreme judicial court from proceeding under their appointment, early after their appointment, pending the case of Day v. Bardwell, 97 Mass. 246 . The judge declined to interrupt the defendant's counsel, and against the plaintiff's objection he was allowed to proceed with this argument."
S. O. Lamb & G. W. Bartlett, for the plaintiff.
S. T. Field, for the defendant.
CHAPMAN, C.J. 1. The notes in suit had been given to the plaintiff by the defendant's testator, who was also her husband. After the testator's death, the defendant had been sued upon them by Drake, and the first exception is to the refusal of the court to permit the plaintiff's counsel, on cross-examination, to ask the defendant if she did not ascertain from counsel, while the notes were in Drake's hands, that she could not defend against Drake. If counsel had told her this, we cannot see how the fact is material to this action, or would affect her defence against Woodward; and we think the refusal was right.
then have or pretend to have such a claim. If he had them, they ought to have appeared on the schedule.
3. The offer of the plaintiff to prove that he, in the testator's lifetime, offered without any injunction of secrecy to turn out the notes in payment of a debt, and that the testator was told of the fact, was not evidence against the defendant, for the plaintiff could not thus prove his own acts and words; and it was properly excluded.
4. The question put to Caswell in cross-examination, what his theory was at a certain time as to how the notes were in the hands of the plaintiff, brought out nothing in evidence of any materiality, and the point is immaterial. Nor does it appear that the judge might not allow the question to be put on cross-examination, in the exercise of his discretion.
5. The cross-examination of the plaintiff as to his borrowing money at the bank about the time that he said he purchased the notes of Drake, and while he was compromising with his creditors, was admissible; as it had some tendency to show that he had not the means with which to pay for the notes. Atwood v. Scott, 99 Mass. 177 .
6. The date of the plaintiff's deed, by which he sold his hotel March 18, 1866, was offered to contradict Pratt's testimony as to the time of a conversation, and had some tendency, perhaps very slight, to prove that the conversation could not have taken place as he stated it. It does not appear to have been material, and had no tendency to prejudice the plaintiff.
7. The defendant's counsel was properly permitted to proceed with his argument to the jury, respecting the fact that the testator had never spoken to the assignees in insolvency about the notes; for, though one of the assignees had been upon the stand, there was an absence of evidence on that point which might fairly be presented to the jury.
trial, one of the jurymen, Solomon Brown, had formed and expressed an opinion on the merits of this case.
"On the hearing of this motion, it was testified by three persons that the juryman Brown after one previous trial had expressed to each of them, at three several times, that he believed that these notes had been paid; and one witness testified that Brown said he thought 'Woodward was on the catch.' It appeared that the case had been a subject of frequent discussion in the town where Brown and the plaintiff lived, there having been several previous trials.
"Before the case was opened to the jury, the presiding judge, at the plaintiff's request, asked the jury whether either of them had formed and expressed an opinion in this case, or was conscious of any bias, and, if so, to make it known. Brown was examined on the motion for a new trial, and admitted that he heard the question so addressed to him by the judge, but that he had then no recollection of having expressed any opinion, nor was conscious of any bias. He also admitted that, before being summoned as a juror at this term, he had expressed an opinion, after hearing some statements as to the evidence at a former trial, that he thought the notes had been paid; but that he then had no personal knowledge of the facts, and that he had not of late expressed any opinion.
"The judge, against the plaintiff's objection, allowed others of the jury to be examined; and they testified that Brown did not take part in the discussions, and did not attempt to influence them. Brown was also allowed to state, against the plaintiff's objection, that he voted in favor of the plaintiff, and did not vote against the plaintiff till after all the other jurors had. The judge overruled the motion for a new trial."
The plaintiff alleged exceptions to the rulings and decision upon this motion, which were certified by the judge to be truly stated as above, and were allowed, so far as such rulings and decision were proper matters of exception.
GRAY, J. The questions presented by the exceptions to the admission of the testimony of the jurors, upon the motion for a new trial in this case, have been fully and ably argued in writing by counsel, and, on account of their practical importance in the administration of justice, and the want of entire harmony in the adjudged cases, have been considered by all the judges, including those who were not present at the term, and after advisement and examination of the authorities, the opinion of the court is unanimous.
A motion for a new trial is addressed to the discretion of the presiding judge; and his decision is conclusive upon the question whether one of the jurors had in fact formed or expressed such an opinion as should disqualify him to try the case, or upon the question whether the party moving for a new trial had seasonably availed himself of the objection, or any other question of fact arising upon the hearing of the motion. But the judge is not at liberty to disregard the rules of law by which the rights of the parties are governed; and upon a motion for a new trial or petition for a review, as well as at any previous stage of the case, questions of law, arising for the first time, relating to the competency of evidence or the merits of the controversy, and the rulings upon which may have affected the final decision, may be revised by this court upon exceptions. Gen. Sts. c. 115, § 7. Norton v. Wilbur, 5 Gray 7 . Shea v. Lawrence, 1 Allen 167 . Kidney v. Richards, 10 Allen 419 . Richardson v. Lloyd, 99 Mass. 475 .
which affected their deliberations are equally strong, whether the evidence is offered to impeach or to support the verdict.
In England, the earlier authorities are not uniform; but we have not found any case since the beginning of this century in which, after the return and affirmance of a verdict in open court, the testimony of jurors to the motives and influences by which their deliberations were governed has been admitted. In Owen v. Warburton, 1 N. R. 326, upon a motion in the common pleas for a new trial, the affidavit of a juror was offered to prove that the verdict was decided by lot; and Sir James Mansfield, C. J., after advisement and conference with the judges of the other courts, said that they were all of opinion that, "considering the arts which might be used if a contrary rule were to prevail," "the affidavit of a juryman cannot be received." In Straker v. Graham, 7 Dowl. 223, 225; S. C. 8 L. J. N. S. (Exch.) 86; Baron Alderson said, "It is entirely against public policy to allow a juryman to make affidavit of anything that passes in agreeing to a verdict." And this statement was quoted with approval by Chief Justice Tindal in Burgess v. Langley, as reported in 1 D. & L. 21, 23. In Roberts v. Hughes, 7 M. & W. 399; S. C. 1 Dowl. N. S. 82; upon an offer, made in opposing a motion for a new trial, of a juror's affidavit to what had passed on the delivery of the verdict in open court, it was treated as a well settled rule "to exclude jurymen from swearing to what took place in their private room, or the grounds upon which they found their verdict." In Raphael v. Bank of England, 17 C. B. 161, 174, where the affidavits of jurymen were offered in support of a motion for a new trial, Mr. Justice Willes said, "If the affidavits are to be taken as a statement of something that passed in the jury room, they clearly are not admissible." In Standewick v. Hopkins, 14 L. J. (Q. B.) 16, Mr. Justice Patteson said, "The affidavits of jurymen cannot generally be read to support their verdict;" or, according to another report of the same case in 2 D. & L. 502, "The general rule is that the affidavits of jurors are not admissible either to support or to impugn their verdict."
which they arrived at a verdict were indeed admitted, by the opinion of two judges against one, in support of a motion for a new trial. But that case has been overruled by a series of later decisions.
In Whitney v. Whitman, 5 Mass. 405 , when the jury retired to consider their verdict, a material paper, favorable to the party that prevailed, and which had not been put in evidence at the trial, was delivered with the other papers to the jury by mistake, and without fault of either party. Upon a motion for a new trial for this cause, each party summoned some of the jurors to prove whether they were influenced by the paper in finding their verdict. But, as the report states, "the court refused to examine any of the jurors; and observed that the court must be governed by the tendency of the paper apparent from the face of it; that it was not pretended that the jury had not read it, and it would be difficult for jurors, where, as in this case, there was much evidence of different kinds, clearly to decide in what manner their minds were influenced in forming their verdict. As it was received by the jury among other written evidence, and read by them, it must be presumed that they considered it as evidence, and gave due weight to it. The verdict was therefore set aside, and a new trial granted." So in Hix v. Drury, 5 Pick. 296 , 302, the court observed: "Where a paper, which is capable of influencing the jury on the side of the prevailing party, goes to the jury by accident, and is read by them, the verdict will be set aside, although the jury say that they were not influenced by such paper, for it is impossible for them to say what effect it may have had on their minds."
In Bridge v. Eggleston, 14 Mass. 245 , 248, "the court said that it had been expressly ruled, at a capital trial in Suffolk, that jurors should not be received to testify to the motives or inducements upon which they had joined in a verdict."
proof of this offered the affidavits of the jurors. But the court, in the judgment delivered by Mr. Justice Morton, said: "We have received and have examined the depositions of all the jurors, and have come to the conclusion that they are inadmissible, but if admitted would show no sufficient cause for a new trial. The only point in which they all agree is, that they did not render a verdict for double damages. Nothing could better illustrate the wisdom of the rule, which holds the deliberations of the jury room to be inviolable, and precludes jurors from giving evidence of their own misconduct, of the reasons and grounds of their determinations, and the motives which governed their conduct. These are different in different jurors, some being influenced by one reason or motive, and others by different ones. If we required perfect unanimity in their reasoning as well as in the results, agreements would become as rare as disagreements now are. Men of strong minds and sound judgments, who are very sure to come to wise and just conclusions, would, if called upon to state the grounds of their opinions, often give very insufficient and unsatisfactory reasons for their decisions. The secrecy of the deliberations and discussions of the jury, and the exemption of jurors from the liability of being questioned as to their motives and grounds of action, are highly important to the freedom and independence of their decisions."
intended to be secret, and it is best they should remain so. It is very probable, indeed it is almost inevitable, that many things should be said and views expressed, by individual jurors, which not only have no influence on others, but which they themselves do not ultimately adhere to and act upon."
In Bridgewater v. Plymouth, 97 Mass. 382 , on a motion for a new trial, the testimony of two of the jurors was held inadmissible to show that they misunderstood the instructions of the judge and were induced by misapprehension to assent to the affirmance of the verdict in court; and Mr. Justice Foster, in delivering the opinion, said: "The time for objecting to the verdict as announced is when it is received and before it is recorded in open court. To admit afterwards a conflict of affidavits would be dangerous in the extreme, and lead to interminable controversy." See also Murdock v. Sumner, 22 Pick. 156 ; Alcott v. Boston Steam Flour Mill Co. 11 Cush. 91 ; Folsom v. Manchester, Ib. 334; Boston & Worcester Railroad Co. v. Dana, 1 Gray 83 ; Chadbourn v. Franklin, 5 Gray 312 .
The jury may indeed, upon the return of the verdict, be inquired of by the court in its discretion, as to which of several grounds taken by the parties at the trial they based their verdict upon, or the rule by which they assessed damages. But in answering such inquiries, as was said by Mr. Justice Morton, "they act as jurors, and not as witnesses -- under their official oath, not under an oath to testify." Dorr v. Fenno, 12 Pick. 521 , 525. Spoor v. Spooner, 12 Met. 281 .
son of which the paper which they signed did not express the result upon which they had all agreed. And that verdict had been sealed up by the jury, and returned by the sheriff into court after they had separated, and never been affirmed in their presence, as to which the affidavits of jurors might with more reason be admitted than in the case of an ordinary verdict rendered in open court and affirmed and recorded in the presence of the jury. See Bridgewater v. Plymouth, 97 Mass. 382 , 391; Milsom v. Hayward, 9 Price 134; 1 Tidd Pract. (9th ed.) 582.
The report of Ferrill v. Simpson, 8 Pick. 359 , upon which the defendant much relied, is very brief and unsatisfactory. So far as it bears upon this point, it merely states that upon a petition for a review of a real action the counsel for the respondent "produced one of the jurors to testify that a misapprehension at the trial in regard to a certain line had no influence upon the verdict;" and that "the court said that, as the petition was addressed to the discretion of the court, the evidence might be admitted. The juror was accordingly examined." Neither the nature of the mistake, nor its alleged bearing upon the case, nor the testimony given, is stated in the report. The only reason assigned for its admission -- "as the petition was addressed to the discretion of the court" -- implies that it was deemed inadmissible on any other ground; and is wholly unsound, for the admission and rejection of evidence upon the hearing of a petition for a review must be governed by the ordinary legal rules. Richardson v. Lloyd, 99 Mass. 475 .
In Tucker v. South Kingstown, 5 R.I. 558, affidavits of jurymen as to what took place in the jury room and the grounds upon which they found their verdict were offered to impeach the verdict, and rejected; and no opinion was required by the case, or expressed by the court, as to the admissibility of such affidavits in support of the verdict.
general rule as to the reception of the affidavits of jurors. or examining the decisions upon the subject, because the court were of opinion "that the facts proved by the jurors, if proved by unquestioned testimony, would be no ground for a new trial. There was nothing in the newspapers calculated to influence their decision, and both of them swore that those papers had not the slightest influence upon their verdict." The court did not decide, but expressly declined deciding, whether the affidavits were or were not admissible. If they were rejected, the verdict of course stood. If the facts stated in them should be assumed as proved, there was nothing in them to impeach the verdict; and this, not merely because the jurors were not influenced, but also because there was nothing in the papers calculated to influence them.
It has long been settled law that the delivery of any paper by a party or his agent, designedly, and without the authority of the court, to the jury after they have retired to deliberate upon the case, will avoid a verdict in his favor, although the jury swear that they did not read it. Co. Lit. 227 b. Heylor v. Hall, Palm. 325; S. C. 2 Rol. R. 261. Webb v. Taylor, 2 Rol. Ab. 714, pl. 6; S. C. Style, 383; Trials per Pais, 224. Richmond v. Wise, 1 Ventr. 124, 125. And in Hix v. Drury, 5 Pick. 296 , 302, this court accordingly said: "We are all of opinion that if a paper not in evidence is delivered to the jury by design, by the party in whose favor the verdict is returned, the verdict shall be set aside, even if the paper is immaterial; and this as a proper punishment for the party's misconduct."
But where evidence has been introduced tending to show that, without authority of law, but without any fault of either party or his agent, a paper was communicated to the jury, which might have influenced their minds, the testimony of the jurors is admissible to disprove that the paper was communicated to them, though not to show whether it did or did not influence their deliberations and decision. A juryman may testify to any facts bearing upon the question of the existence of the disturbing influence, but he cannot be permitted to testify how far that influence operated upon his mind.
For example, in Hix v. Drury, just cited, where material papers, which had not been given in evidence at the trial, were delivered to the jury by accident, it was held that the affidavits of the jurors were admissible to prove that the papers were not read by the jury, because, as was said by the court, "where a paper which might influence the jury is not read, it is the same thing as if it had not been delivered to them." But, as has been stated in the earlier part of this opinion, it was also said in that case, and had been previously decided in Whitney v. Whitman, 5 Mass. 405 , that, if the jury received and read the paper, they could not be permitted to testify upon the point whether it did or did not actually influence them. The same rule was laid down and acted on in the earlier cases in New Hampshire. Page v. Wheeler, 5 N.H. 91, 93. State v. Hascall, 6 N.H. 352, 361. In State v. Hascall, it was further held that the jurors could not be allowed to testify that "they were induced to agree to the verdict from a consideration of the law and evidence given at the trial, and from that only."
Upon the same principle, where the cause which is alleged to have prevented a fair trial is misconduct or partiality on the part of a juror, and testimony of his acts or declarations outside of the jury room has been introduced for that purpose, his testimony in direct denial or explanation of those facts is admissible. The statement of Mr. Justice Morton in Dorr v. Fenno, 12 Pick. 521 , 525, that the testimony of jurors "may be received to explain or contradict other evidence tending to impeach their conduct," directly affirms this; but cannot, consistently with the judgments delivered by himself and other judges of this court in the cases already cited, be extended to allow the same or other jurors to testify to the part which they took, or the motives which influenced them, in their private deliberations.
not allow him to be asked "whether he had not been for the lowest damages of any of the jury;" the chief justice saying that "he thought it unnecessary in this case," and the other judges "that it was wrong, on principle, to inquire into the proceedings of the jury, by questions to the jurors themselves."
In Ramadge v. Ryan, 2 Moore & Scott, 421; S. C. 9 Bing. 333; upon a motion for a new trial, affidavits were produced that one of the jurors, on the day before the trial, had expressed his surprise at a verdict in a similar case, and said, "I shall be on the jury tomorrow, and I will take care that the verdict does not go that way." The court thereupon granted a rule to show cause, Chief Justice Tindal saying that the juror would "then have an opportunity of answering the matters with which he is now charged." The juror made an affidavit, denying the words alleged to have been used by him, which the court received, and on the strength of it refused a new trial. At the hearing upon the rule, the foreman of the jury also made an affidavit, stating that neither he nor any of the other jurors was influenced by anything which that juror said or did at the trial; but the court refused to receive it, and observed that those in support of the application referred only to the conduct of the juror before he entered the jury box.
In Addison v. Williamson, 5 Jur. 466, Baron Alderson permitted an affidavit of a juror, offered in support of the verdict, to be read so far as it contradicted his having made declarations attributed to him by affidavits of other persons, but excluded so much of it as stated other circumstances relating to the trial.
The contents of the affidavits on either side are not particularly stated in any of the reports. But that they did not relate to the deliberations in the jury room is manifest from the note of the first reporter, that "this is not inconsistent with the ruling of Rolle, C. J., in Taylor v. Webb, Trials per Pais, 224, that the affidavit of the jury ought not to be allowed to make good their verdict."
In Haskell v. Becket, 3 Greenl. 92, upon a petition for a review, the petitioner introduced evidence that one of the jurors had said before the trial that he had better settle the action, for he thought he would lose it. The juror, being called by the respondent, testified in direct explanation of these statements, and that he had not formed any opinion of his own upon the merits of the cause, and came to the trial without any bias or prejudice. "He also testified, as did another juror, that on going into their room the jury very soon agreed on a verdict for the defendant, and that he was one of the last to give his opinion." This last testimony does not appear to have been objected to, and is not noticed in the opinion of the court, who, in relation to the position of the petitioner that the juror had formed and expressed an opinion unfavorable to his cause, said: "But this is explained in a satisfactory manner by the juror himself, who is very properly called for that purpose. Indeed, whenever the verdict is impeached for any cause of this sort, the juror implicated ought to be permitted to explain." The subsequent decisions in Taylor v. Greely, 3 Greenl. 204, and Sawyer v. Hopkins, 22 Me. 268, are to the same point exactly. Those of Newell v. Ayer, 32 Me. 334; Thrall v. Lincoln, 28 Vt. 356; Downer v. Baxter, 30 Vt. 467; and Bradford v. State, 15 Ind. 347; go no farther.
In Heffron v. Gallupe, 55 Me. 563, the court held that the testimony of a juror was admissible to facts touching his own conduct or acts when separated from his fellows, or the acts or declarations of other persons with or to him, but was inadmissible to what transpired in the deliberations of the jury, acting as an organized body, presided over by their foreman and performing their official duty.
In Tenney v. Evans, 13 N.H. 462, and several later cases in New Hampshire, the court has indeed gone so far as to admit, in order to disprove that a juror had formed an opinion, or was subject to bias or prejudice, the affidavits of the juror himself and his associates as to the part which he took in the discussions in the jury room; but has not assigned any satisfactory reasons for so doing. State v. Howard, 17 N.H. 171. State v. Pike, 20 N.H. 344. State v. Ayer, 3 Foster 301. Boynton v. Turnbull, 45 N.H. 408. And in Folsom v. Brawn, 5 Foster 114, the same court, in rejecting affidavits of jurors that they were under a misapprehension as to the effect of the verdict upon the costs, and would not have agreed to the verdict had they known the law on the subject, said: "Affidavits of jurors are not admissible to show their impressions as to the effect of their finding, or that they intended something different from what they found by their verdict. To allow affidavits of jurors for such purposes, or to show the consultations that took place in the jury room, and the motives, inducements or principles upon which the jury founded or joined in a verdict, would lead to great mischief. And this view of the matter is well sustained by authority."
England. But the affidavits there admitted were in direct contradiction of the testimony offered to impeach the verdict, and related to the action of the whole jury, and not to the part taken by individual jurors in their deliberations. And the decision would seem to be limited accordingly by the judgment of the same court in Brownell v. McEwen, 5 Denio 367, excluding affidavits of particular jurors offered to show that they agreed to the verdict rendered, on the supposition and under the impression that it would settle another cause of action beside that on which the suit was brought; and declaring that to allow a juror to disclose what influence operated upon his own mind, to induce him to assent to the verdict which he joined in rendering, was not warranted by any of the cases on the subject, and could not be tolerated.
Upon a consideration of the whole matter, our conclusion is, that the testimony of the juryman Brown in explanation of the facts and statements relied on to prove that he had formed and expressed such an opinion as was attributed to him, was rightly admitted, as directly tending to meet and explain the testimony introduced by the plaintiff, and not concerning anything that passed in the jury room; but that the testimony of Brown and other jurors as to the part which he took in the discussions and votes of the jury was incompetent and should have been excluded, because it related to the private deliberations of the jury, and had no tendency to disprove that he had previously expressed and still entertained an opinion inconsistent with an impartial discharge of his duty.
Rehearing of the motion for a new trial.

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The European Unique Resources Organisation 2000 B.V.
Domain name  Domain name dispute resolution policy  Res judicata  Trademarks  Trademarks not registrable in one or more jurisdictions  Decision emanating from a judicial authority does not terminate a proceeding under Paragraph 18(a)  Panel retains large scope of discretion under Paragraph 18(a) and each decision from a judicial authority should be considered on a case by case basis.
UEFA asked the Paris Court to order that the Respondent cease the use of the domain name euro2000.com, the latter being an infringement of both the "famous brand name" EURO 2000. UEFA demands were dismissed, the court having concluded that UEFA is not the owner of a "famous brand name" EURO 2000 in France and that international trademark registration is not infringed by Respondent's current use of the domain name euro2000.com.
The filing of a previous complaint in 1998 does not prevent the Complainants from filing this complaint because (a) one of the Complainants was not a party to the previous Complaint, (b) nothing under Art. 9 of the ICANN policy about complaints filed under a precious Policy prevents the filing of new complaint under the 1999 Policy, and (c) the subject matter of the previous complaint is not one and the same as the present complaint and some circumstances have significantly changed in more than one respect.
The Policy has adopted a very broad concept of "trademark or service mark." The Policys requirements appear to be minimal, and limited to the fact that a certain combination of letters and/or numbers is recognizable as a trademark or service mark by a significant number of Internet users or consumers in general. Secondary meaning is also not specifically requested. Under the (minimal) requirements of the Policy, EURO 2000 is potentially capable of functioning as a trademark or service mark.
It is concluded that, for the purposes of the Policy, although possibly not registrable as such in some jurisdictions (but registrable, and in fact registered, in others) EURO 2000 is a trademark and a service mark, and that UEFA as organizer of the event commonly known as Euro 2000 has rights on it.
A decision rendered from a judicial authority does not de facto terminate the proceedings. The Panel is given a large scope of discretion under Paragraph 18(a)(ii) to proceed where there has been a decision rendered by a judicial authority on the same issue that is before the Panel. However, the result of the Paris Courts decision is to confer a right upon the respondent to use the domain name in at least one country.
This, of course, does not mean that Complainants may not eventually prevail in cases brought before other jurisdictions. It simply leads to the conclusion that carrying on an analysis of the French case leading eventually to conclusions other than those reached by the Paris Court, or canceling the rights on the domain name just confirmed or created by the French judges goes beyond the scope and the possibilities of the present administrative proceedings. The Panel is compelled to consider the existence of this decision and its force in law which was established by a court of law in a party proceeding brought be a Complainant, which determines a right for the Respondent.
It is a dangerous principle to allow one to retroactively establish rights in a trademark by filing a fresh trademark application in a jurisdiction other than those where the Complainants trademark is registered. It will always be possible to find at least one register where the opponents mark is not registered. Paragraph 4(c)(i) of the Policy regards chronology as relevant. However, the Paris decision created, in the Panels opinion, a "right" under Paragraph 4(a)(ii), at least temporarily, for Respondent to use the domain name.
The main, if not the only, purpose of that Web site (a purpose which is not incompatible with providing links to very different Web sites operated by others) is to represent itself as connected with the Euro 2000 event. If the primary purpose of Respondent was to provide, in good faith, alternative and unofficial information about the Euro 2000 event, it may have created a Web site under a large variety of domain names, perhaps clearly emphasizing its unofficial and "alternative" nature.
The First Complainant is ISL Marketing AG ("ISL"). The Second Complainant is the Union des Associations Européennes de Football ("UEFA"). ISL and UEFA collectively are referred to herein as the "Complainants".
Respondent is European Unique Resources Organisation 2000 B.V., hereinafter referred to as "Respondent".
The domain name the subject of this Complaint is euro2000.com.
The Remedy sought by Complainants is transfer of the domain name euro2000.com to UEFA.
On March 30, 2000, (by e-mail) and April 3, 2000, (in hard copy) the Complainants submitted to the WIPO Center a Complaint under the Uniform Policy and the Uniform Rules. Panelists agree that payment was properly made, that the Center rightly assessed the Complaint's compliance with the formal requirements; that the Complaint was properly notified in accordance with paragraph 2(a) of the Rules. Having obtained an extension of the term, Respondent submitted a Response on May 11, 2000, (by e-mail) and on May 12, 2000, (in hard copy). Respondent elected to have this case decided by a three-member panel. The Panel agrees that it was properly constituted and, that all Panelists submitted a Statement of Acceptance and Declaration of Impartiality. The Panel further acknowledges that on May 18, 2000, Complainants submitted a "Correction of Misstatements of Facts, Submission of Recent Case Decision and Designation of Panelists", and at the same date Respondent submitted a "Respondent's Objections to Correction of Misstatement of Facts submitted by the Complainant".
The Panel also acknowledges that other proceedings were brought by UEFA against Respondent before the Justice Court of Paris, France. On June 13, 2000, the latter court rejected UEFA's claims. Having been informed of this decision, the Panel issued on June 16, 2000, an order asking the parties to submit copies of the French decision, together with an English translation and their comments. Complainant submitted these documents and comments on June 23 and Respondent on June 26.
While it may have been more significant to have rendered the Panel's decision prior to the Euro 2000 soccer event, the controversy between the parties went on for some four years before the complaint was filed. Complainant may have filed its complaint immediately upon the coming into force of the Policy, but did not. Complainant also elected to file a parallel court case before the Court of Paris, thus creating the possibility of an interference between the two procedures. Finally, both parties did not comply immediately with the Panel's order to file documents and comments about the Paris judgement, and another week was lost.
UEFA is one of the six continental confederations recognized by the Fédération Internationale de Football Association (FIFA), the world governing body of football (called "soccer" in the U.S. and in this opinion). UEFA organizes several soccer competitions, including - every four years - a European championship for national teams. Such championship to be held in the year 2000 is commonly called Euro 2000. UEFA owns trademarks and service marks for EURO 2000 in Benelux, and one international registration (two of the former were registered in the name of the national soccer associations, of the Netherlands and Belgium, where the Euro 2000 event will be held, and further assigned to UEFA in 1998). ISL acts as a marketing agent for UEFA, charged in particular with the commercial exploitation and protection of the EURO 2000 marks and properties. UEFA maintains several Web sites including one at www.euro2000.org.
Respondent is the owner of U.S. trademark registration EURO2000 in connection with "providing information concerning historical, cultural and entertainment events by means of a global computer information network", applied for on April 2, 1997 (reference to a filing date of February 2, 1997, by Respondent appears to be incorrect) and registered on April 25, 2000, registration No. 2345898. It also obtained, by way of assignment, a Benelux registration for EURO 2000 for "metal building materials, non-metal building materials, and products made of plastic". Further attempts by Respondent to register a service mark EURO 2000 in Benelux were unsuccessful, as the trademark was regarded as generic. Respondent started its business in 1996, was registered as a company with the Dutch Chamber of Commerce on January 1, 1997, and registered its domain name euro2000.com with Network Solutions on April 28, 1997. It claims that a previous registration with Network Solutions for euro2000.com in the name of Euro 2000 of Alkmaar, The Netherlands, dated April 16, 1996, was in fact controlled by Respondent's chief executive officer, Mr. Daniel Oudejans, and by his partner Ms. Heleen Visser (the latter being indicated as the administrative contact) and that in fact the 1996 and 1997 registrations are one and the same.
Respondent operates a Web site at the address www.euro2000.com. When accessed on June 1, 2000, although including a left-hand side title "Euro2000.com European Events", it featured prominently, on a green background depicting a soccer field, the words "European Championship Football 2000" and the flags of the 16 teams participating in the final phase of the Euro 2000 event. The site also provides links to other European cultural and business events.
Although the precise circumstances of these contacts are disputed between the parties, at various stages Respondent offered to sell the domain name to Complainants for sums ranging from 2.000.000 Euro to US $ 4.000.000 and at one stage for a sum to be determined by an independent expert.
Part of the dispute is also that both Complainants and Respondent, at various stages, have been in touch with actual or potential sponsors of their Web sites, and some of them are also sponsors of the Euro 2000 event and other UEFA football events.
By an action dated March 12, 2000, UEFA asked the Paris Court to order that the Respondent cease the use of the domain name euro2000.com, the latter being an infringement of both the "famous brand name" EURO 2000 and of international trademark registration 703249 EURO2000 and device owned by UEFA. On June 13, 2000, UEFA demands were dismissed, the court having concluded that UEFA is not the owner of a "famous brand name" EURO 2000 in France and that international trademark registration 703249 is not infringed by Respondent's current use of the domain name euro2000.com.
a) Complainants claim that EURO 2000 (as it was previously the case for EURO 1996 and the names of previous European Championships) is a trademark identifying the European soccer championship to be held in the year 2000, and is recognized as such by a majority of consumers.
b) Complainants claim the validity of their trademark registrations, and suggest that they have "incalculable value." According to a late statement by Complainants, this validity has been recognized even in Benelux in a very recent court case. Respondent objects to Complainants' late submission of references to this case.
c) They claim that the main purpose of Respondent was to divert both Internet users interested in finding the official Web site for the event Euro 2000, and sponsors, to their own Web site. A secondary (and, perhaps later, primary) aim of the Respondent, according to the Complainants, was to sell the domain name to Complainants for a highly significant sum.
d) As a consequence of these activities, evidencing bad faith by Respondent, not only a likelihood of confusion has been created, but Complainants have been injured and continue being injured.
e) The Paris decision involved different issues and is irrelevant for the present case.
a) Respondent preliminarily claims that since UEFA already filed a Complaint against Respondent on September 29, 1998 with Network Solutions, before the current Policy was adopted, the current Policy and the Rules cannot be applied against Respondent.
b) Respondent, on the substance of the matter, claims that, as evidenced by its own experience with the Benelux Trademark Office and the Dutch High Court, the trademark or service mark EURO 2000 lacks distinctiveness and is not a valid mark.
c) It claims that EURO 2000 does not clearly, or only, identify the Euro 2000 soccer event firstly because "a lot of people do not care for soccer at all" and, secondly, because the past UEFA European championships were identified by the marks EURO 84, EURO 88, EURO 92 and EURO 96, and an event called "EURO 00" in 2000 [rather than EURO 2000]" would have been more likely".
d) The domain name of Respondent identifies a genuine business activity, which - Respondent claims - is not limited to the Euro 2000 event, or to soccer, but includes a number of other links and information.
e) Only when asked by Complainants, Respondent offered to sell the domain name to them, and this is not evidence of bad faith.
f) The fact that Complainant UEFA owns Benelux trademark registrations is not an argument against lack of distinctiveness, since they were obtained by third parties before the new Benelux law preventing registration of generic terms as trademarks came into force.
g) As a consequence, it is claimed that Respondent registered its domain name at a time when Complainants did not have any rights whatsoever in the name EURO 2000.
h) Last (but not least) any contradiction between the decision of the Panel and the Paris judgement of June 13, 2000, would constitute a violation of the Policy under Paragraph 18(a )of the Rules.
The preliminary objection that Complainants are prevented from filing this Complaint because UEFA filed a previous Complaint with Network Solutions on September 29, 1998, is rejected. Firstly, one of the Complainants, ISL, was not a party to this previous dispute. Secondly, and most importantly, there is nothing in Art. 9 of the ICANN Policy about complaints filed under a previous Policy preventing the filing of new complaints under the 1999 Policy and subsequent versions thereof. The wording "the version of the Policy in effect at the time it was invoked will apply to you until the dispute is over" has no obvious retro-active effect, and refers to the Policy adopted on August 26, 1999, in its relations to future versions of the Policy. Thirdly, the case which was the subject matter of the Dispute with Network Solutions in 1998 is not one and the same with the present case, since circumstances have significantly changed in more than one respect.
Respondent claims that under Paragraph 18 (a) of the Rules the Panel's proceedings "are de facto terminated" when a decision emanating from a judicial authority on the same matter has been rendered is not, in this rather draconian form, acceptable. In fact, Paragraph 18 (a) leaves a large scope to the Panel's "discretion", and not all judicial proceedings or decisions are equal. The scope and effects of each decision should be considered on a case by case basis.
In this case, however, it was UEFA, one of the Complainants, that elected to file a court case in Paris concerning precisely the same domain name which is the subject matter of this dispute, and vigorously argued that the French court did indeed have jurisdiction in a domain name (.com) controversy. As a result, the situation is now that Respondent has a "right" to use the domain name at least in one country, i.e. France (not a minor or peripheral country for this controversy: France is the current world champion of soccer and one of the most prominent national teams in the Euro 2000 soccer event). This circumstance creates a situation where Respondent has a "right" to the domain name, and this is sufficient under Paragraph 4 (a) (ii) of the Policy to prevent the Panel from finding in favor of Complainants.
This, of course, does not mean that Complainants may not eventually prevail in cases brought before other jurisdictions. It simply leads to the conclusion that carrying on an analysis of the French case leading eventually to conclusions other than those reached by the Paris court, or canceling the "rights" on the domain name just confirmed or created by the French judges goes beyond the scope and the possibilities of the present administrative proceedings. The Panel does not necessarily agree with the content of the French decision, nor is it the Panels place to act as a "court of appeals" or commentator with regard to adjudicated matters. It is, however, compelled to consider the existence of this decision and its force in law which was established by a court of law in a party proceeding brought by a Complainant, which determines a "right" for the Respondent. For this reason the Panel finds that the Complainants fails to satisfy the UDRPs criteria for transferring a domain name away from a registrant, in that Complainants cannot now prove, as required, that the Respondent has "no rights or legitimate interests in respect of the domain name".
This Panel believes that, in a complicated case such as this one, Panels have a duty to state for the record, if briefly, their conclusions on the different features of the case, even if all conditions of Paragraph 4(a) are needed in order to find for the Complainants.
Stating for the record the conclusions reached by the Panel on the validity of the Complainants trademarks, it should be emphasized that the Policy has adopted a very broad concept of "trademark or service mark." It simply mentions "a trademark or service mark in which the Complainant has rights". These "rights" may not be sufficient to obtain a trademark or service mark registration everywhere in the world. This is not required by the Policy, which also considers common law trademarks and other trademarks not yet registered or not registrable in one or more jurisdictions.
In a National Arbitration Forum case (FA0002000093633, Cedar Trade Associates v. Gregg Ricks, February 25, 2000) it was decided that, under the Policy, common law trademark rights on BuyPc.com and BuyPc for the services of selling computers are "rights on a trademark or service mark" under the Policy. In this case, there was no trademark registration, and presumably such may not have been obtained (absent substantial evidence of secondary meaning, not mentioned in the case) in the United States (the country of the Complainant), nor in a number of other countries in the world. In another National Arbitration Forum decision (FA003000094237, Shri Ram Chandra Mission (California) v. Shri Ram Chandra Mission (India), April 4, 2000), the request was denied but it was not contested that trademark or service mark rights under the Policy may be obtained on "Sahaj Marg", an Indian religious expression meaning "natural path" in fact used by several different religious groups, irrespective of any registration. A case somewhat similar to this one concerned the rights of FIFA (UEFAs parent body) and of one of the present Complainants, ISL, on trademarks and service marks connected with the World Cup of soccer to be held in 2002. In that case (ISL Marketing AG and Fédération Internationale de Football Association v. J.Y. Chung and others, WIPO case D2000-0034, April 3, 2000), rights of the Complainants were regarded as valid. It is true that they do own a number of trademark and service mark registrations for WORLD CUP and WORLD CUP 2002, but these do not cover the whole world, and presumably  again  the registration of such trademarks would prove impossible in several jurisdictions. It may also well be that in some jurisdictions trademarks and service marks related to sport events are not registrable at all, but  again  registrability in a given country, or even in several of the countries in the world having a trademark and service mark system, does not appear to be requested by the Policy. The Policys requirements appear to be minimal, and limited to the fact that a certain combination of letters and/or numbers is recognizable as a trademark or service mark by a significant number of Internet users or consumers in general. Secondary meaning is also not specifically requested.
Accordingly, whether or not EURO 2000 may be registered as a trademark in Benelux, now or before the Benelux law was amended, a circumstance vehemently disputed between the parties, is not crucial for this decision. It is also noted that, while denying that EURO 2000 is capable of being registered as a trademark, Respondent does own a registration for EURO2000 in connection with computer information network services that it obtained from the U.S. Patent and Trademark Office (USPTO). This registration is in the Principal, not the Supplemental Register of the USPTO. When it applied for EURO2000 as a service mark, Respondent did regard it as distinctive and executed an application for the benefit of the USPTO claiming distinctiveness. That simply shows that the law may be different between the United States and Benelux (and would be still more different in Korea, Japan, France, or Brazil), while the Policy has not tied itself to any specific trademark law among the many existing throughout the world.
Under the (minimal) requirements of the Policy, EURO 2000 is potentially capable of functioning as a trademark or service mark.
But does this potentiality translate into an actual trademark or service mark?
) was going to be organized." This may well be true, but does not prove they will not recognize Euro 2000 as a soccer tournament. Most people know that, somewhere in the world, Olympics will be organized in 2000 and again in 2004, but they do not know (or have forgotten when asked) where exactly they will take place. Respondent itself admits that there are many Web sites mentioning Euro 2000, and that indeed many of them use the words "Euro 2000" with reference to the European Football Championship. This again seems to confirm that for a significant number of Internet users and consumers in general, EURO 2000 means the European Football Championship, and not other European events or the coming of the euro as a currency.
Respondents further objection that users and consumers would recognize a mark EURO 00, rather than EURO 2000, does not make sense. Media have always called the event Euro 2000. More generally, while the year 1996 is referred to, easily, as "ninety six", the year 2000 is normally not referred as "zero-zero" but rather, in fact, as "two thousand."
Finally, even assuming that a significant percentage of the population could not care less about soccer, it is precisely those who do care about soccer and the European Championship that are the consumers and Internet users targeted by any use of EURO 2000 as a trademark, service mark, or domain name.
The fact that EURO 2000, as owned by UEFA, does not qualify as a "famous brand name" under French law, even if true, would not in itself be crucial. French law should not be regarded as the only law to be taken into account.
"Euro 2000" is immediately linked by a significant percentage of the consumers in Europe (and certainly by the Internet users looking for soccer-related Web sites) to the Euro 2000 soccer event, and has been perceived in such a way since the event was announced. The Euro 2000 soccer event was planned on or before January 1994 (not to mention that it was not a difficult guess that it would have been planned and announced, given that UEFA European soccer championships are organized every four years and are identified by the name "Euro" followed by the year). In fact, on January 28, 1994, Benelux trademark application 544492 for EURO 2000 was filed by a national soccer association which is part of the European network of national associations ultimately authorized and controlled by UEFA (it was later assigned to UEFA). This shows that as of January 28, 1994, the European soccer championship for the year 2000 was being actively planned and was called "Euro 2000" (rather than "Euro 00"). January 28, 1994, is before Respondents domain name was registered. Already before Euro 96 the Euro 2000 event was very much part of the news in Europe (and certainly in The Netherlands, where Respondent has its main place of business), as several countries where competing for organizing it (including The Netherlands) and eventually it became the first major soccer international tournament to be jointly organized in two countries, Belgium and The Netherlands. Respondent could not have ignored when it registered the domain name that Euro 2000 was the name of the European soccer championship then in the process of being planned by UEFA in a location later to be determined to be Belgium and The Netherlands jointly, and may have easily determined that the events name was protected by trademark registrations. Accordingly, we believe that an arguable case may be made that the registration of euro2000.com as a domain name intended to capitalize on that event and on UEFAs corresponding trademark rights from the very beginning.
Respondents possible rights or legitimate interests in respect of the domain name under Paragraph 4 (a)(ii) of the Policy were the subject of considerable study by the Panel. While Respondent has certainly shown that it has an interest in the domain name, not all interests are "legitimate". It was suggested that Respondents legitimate interest, or "rights", in the domain name arise from Respondents ownership of a corresponding U.S. trademark registration. Complainants object that Respondent filed its U.S. trademark application on April 2, 1997 (its claim in the response that it filed it on February 2, 1997 is a mistake, as evidenced by Exhibit 2B filed by Respondent itself), i.e. after it received Complainants cease and desist letter dated February 18, 1997. The same chronology applies to the trade name rights of Respondent and to its purchase of a Benelux trademark for building materials. While the interpretation of the word "rights" in Paragraph 4 (a) (iii) is not obvious (and perhaps some future guidance by ICANN would be in order), the Panels feeling is that the general principle that the owner of a domain name identical to a previous trademark or service mark may, when challenged by the trademark owner, establish (retroactively) legitimate use simply by filing a fresh trademark application in a jurisdiction other than those where the Complainants trademark is registered, is a dangerous principle. The owner of every contested domain name will always easily find at least one register where its opponents trademark or service mark is not registered. Paragraph 4(c)(i) of the Policy regards chronology as relevant. In WIPO Case No. D2000-0030, Lion Nathan Limited v. Wallace Waugh, the fact that Respondent had filed a U.S. trademark application and obtained a notice of allowance did not "carry weight" since Respondent did not register the trademark "before [Complainant] complained of [Respondents] activities". On the other hand, Respondents U.S. trademark in our case went all the way to registration and there is no evidence that Complainants opposed it (a move they may have made).
This difficult issue, on the other hand, became moot because of the Paris decision, which, as mentioned earlier, created in the Panels opinion a "right" under Paragraph 4(a)(ii), at least temporary, for Respondent to use the domain name.
A study of the Web site operated by Respondent at the address www.euro2000.com shows that this Web site is indeed primarily related to the Euro 2000 soccer event. It is surely true that there are links to a number of other European events Web sites. These Web sites are external to Respondents own Web site (or, at least, most of them are). The main thrust of Respondents Web site is to deal with the Euro 2000 European Football Championship. Accordingly, the claim by Respondent that its Web site is a "portal" dealing with a number of events in the business and finance, technology, science, health, art, culture, entertainment, communications and sport fields is not convincing, (the Paris decision notwithstanding). The main, if not the only, purpose of that Web site (a purpose which is not incompatible with providing links to very different Web sites operated by others) is to represent itself as connected with the Euro 2000 event.
Of course, UEFA has not a monopoly of information about the European Football Championship. Information on the Euro 2000 event is found in hundreds of different Web sites and is carried by all international media. However, if the primary purpose of Respondent was to provide, in good faith, alternative and unofficial information about the Euro 2000 event, it may have created a Web site under a large variety of domain names, perhaps clearly emphasizing its unofficial and "alternative" nature. The situation, here, is similar to the one decided by a WIPO Panel in Case No. D2000-0034 about the World Cup 2002. While it is perfectly legitimate "to provide alternative news and information about, or even commentary and criticism on a matter of public interest", it is another thing altogether to do it under a domain name strongly suggesting that this information is provided by an entity associated with the organizers of the event (and owner of the corresponding trademarks and service marks).
The situation, in this case, is even worse than in Case D2000-0034, where Respondent used the Web site in a "non-commercial" way, while here some services are offered for a fee, and sponsors have been contacted in direct competition with Complainants.
Documents are not easy to interpret on who contacted whom first about selling the domain name. Certainly the figures involved are quite high, and lesser figures have been regarded as evidence of bad faith in previous cases.
For the record, thus, it seems that issues connected with Paragraph 4(b)(iv) of the Policy may have been solved in favor of the Complainants, had not the Paris decision created a "right" of the Respondent on the domain name preventing the Panel from finding for the Complainants.
Pursuant to paragraph 4(i) of the Policy and Rule 15 of the Uniform Rules, this Panel denies the complaint and concludes that the domain name euro2000.com should remain registered in the name of Respondent.

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To what extent is my data used for profiling?
You have the opportunity to consent to us using your personal information to provide you with personalized promotional offers or notice of events that may interest you. To this end, we create pseudonymized user profiles.
Your user profiles will by no means be merged with your personal data. The pseudonyms will not be linked to your personal data (e.g. your email address or your IP address), so as to exclude any direct access to your user profile. You can object to the creation of user profiles at any time with effect for the future.
Information on your right to withdraw according to Art. 7 (3) GDPRInsofar as you have given us consent to the processing of personal data for specific purposes (e.g. for marketing purposes), the lawfulness of this processing is based on your consent. A given consent can be withdrawn at any time. Please note that the withdrawal only has effect for the future. Any processing that occurred before the withdrawal is not affected by this.
On grounds relating to your particular situation, you have the right, at any time, to object to the processing of your personal data relating, carried out on the basis of Art. 6 (1) f GDPR (data processing for purposes of legitimate interests); this also applies to any profiling based on the aforementioned provision within the purpose of Art. 4 (4) GDPR which we use for rating or advertising purposes. In the event of your objection, we will no longer process your personal data unless we can demonstrate compelling legitimate grounds for such processing that override your interests, rights and freedoms, or if the processing is for the establishment, exercise or defence of legal claims.
In individual cases, we process your personal data for direct marketing purposes. You have the right, at any time, to object to the processing of information concerning your person for the purpose of such advertising; this also applies to profiling insofar as it involves direct advertising. If you object to the processing for direct marketing purposes, we will no longer process your personal data for these purposes.

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Art. 15
Art. 16
Art. 17
Art. 18
Art. 20
Art. 21
§ 19
Art. 7
Art. 6
Art. 4


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Wrestling Uncensored Episode 16: November 27, 2010. Hosted by Dave Simon and Jeremy Prophet.
Bret "The Hitman" Hart appeared on this episode to talk about the re-release of Hitman Hart: Wrestling with Shadows on dvd, his recent run in the WWE, Shawn Michaels and much more.
Simon and Prophet re-capped the action from the recent WWE Survivor Series pay-per-view and The Miz' WWE title win on Monday night Raw.
All this and more on the latest episode of Wrestling Uncensored.
This is the November 26, 2010 episode of Ringside Report Radio hosted by Dave Simon and Kevin "Big Tuna" McKough.
Canadian UFC welterweight T.J. Grant appeared on this episode to talk about his bout against Ricardo Almeida at UFC 124 on December 11 in Montreal, Quebec.
Dave and Kevin talked about the UFC 124 card and big news coming from Ringside MMA.
This is the November 24, 2010 episode of Ringside Report Radio hosted by Dave Simon, Kevin "Big Tuna" McKough and Julie V.
Bas Rutten appeared on this episode to talk acting, his appearance in the EA Sports MMA video game and much more MMA.
Dave, Kevin and Julie talked about the results of UFC 123 and who should be the next opponent for Quinton "Rampage" Jackson and his split-decision victory over Lyoto Machida.
All that and much more from UFC 123 on this 2-hour episode of Ringside Report Radio.
Wrestling Uncensored Episode 15. Original air date: November 20, 2010. Hosted by Dave Simon and Johnny North.
In this episode, Dave and Johnny reviewed WWE's Old School edition of Monday night Raw. They also gave a full preview for WWE: Survivor Series pay-per-view taking place on November 21 and featuring a main event of Randy Orton defending the WWE title against Wade Barrett with John Cena as the special referee and Edge v. Kane for the World Heavyweight title.
All this and more pro wrestling talk on this one-hour episode of Wrestling Uncensored.
This is the November 19, 2010 episode of Ringside Report Radio hosted by Dave Simon, Kevin "Big Tuna" McKough and Julie V.
Strength-and-conditioning coach, Jon Chaimberg, appeared on this episode to talk about Nate Marquardt's latest loss at UFC 122 and Dana White's post-fight comments about Marquardt and Greg Jackson.
Dave, Kevin and Julie previewed and predicted every fight on the UFC 123 card including the main events between Quinton "Rampage" Jackson and Lyoto Machida and Matt Hughes versus B.J. Penn.
Ringside Report Radio. November 17, 2010.
This is the November 17, 2010 episode of Ringside Report Radio hosted by Dave Simon, Kevin "Big Tuna" McKough and Julie V.
In this episode, Dave, Kevin and Julie discussed Yushin Okami's decision victory over Nate Marquardt at UFC 122. They talked about Okami being named the next number 1 contender in the middleweight division and Dana White's comments about Marquardt's performance and corner after the fight.
Dave, Kevin and Julie discussed the Strikeforce: Challengers card taking place on November 19 and the current state of the Strikeforce promotion.
Wrestling Uncensored Episode 14 hosted by Dave Simon and Jeremy Prophet.
Simon discussed attending TNA Turning Point and his first visit to the Impact Zone in Orlando, Florida. Simon and Prophet reviewed the TNA pay-per-view including Jay Lethal versus Robbie E, the lack of reaction for Rob Van Dam in the Impact zone and much more.
They also talked about the latest episode of Monday night Raw and the current state of the WWE and champion, Randy Orton.
This and much more on this hour long episode of Pro Wrestling Uncensored.
This is the November 12, 2010 episode of Ringside Report Radio hosted by Dave Simon, Kevin "Big Tuna" McKough and Julie V.
Samuel Guillet was interviewed live on the show and talked about his fight with Iraj Hadin on November 13 for Ringside MMA 9. Guillet talked about his approach and training for the bout and much more.
Dave, Kevin and Julie gave a full preview and their predictions for every fight on the UFC 122 card taking place on November 13 in Germany.
All this and much more MMA talk on this 2 hour episode of Ringside Report Radio.
This is the November 10, 2010 episode of Ringside Report Radio hosted by Dave Simon, Kevin "Big Tuna" McKough and Julie V.
Jonathan Goulet and Chris Clements both appeared in the first hour to talk about their main event bout for the Ringside MMA welterweight title on November 13. Goulet discussed his video-gaming habits, learning to fly an airplane and the Ringside 170 lbs. title. Clements talked about his severe weight cutting problems in his last bout, fighting as an underdog and more.
Strength and conditioning coach Jonathan Chaimberg also appeared on this episode and talked about training with Trish Stratus, Nate Marquardt's UFC 122 main event fight with Yushin Okami, Rashad Evans controversial comments regarding the UFC light-heavyweight title and much much more.
Dave, Kevin and Julie gave a preview for WEC 52 and talked about everything going on in MMA on this 2-hour episode of Ringside Report Radio.
This is the November 3, 2010 episode of Ringside Report Radio hosted by Dave Simon and Kevin "Big Tuna" McKough.
UFC light-heavyweight Krzysztof Soszynski appeared on this show to talk about his upcoming bout against Goran Reljic at UFC 122 on November 13. Soszynski also talked about changing training camps for this fight and what it means for him to fight in Germany.
Alex Garcia (5-0 MMA) was also a guest on the program to talk about his fight against Tyler Jackson for Ringside MMA 9 on November 13. Garcia discussed leaving the Dominican Republic to come to Montreal and train with Firas Zahabi and his team.
Dave and Kevin discussed Roy Nelson calling out Brock Lesnar, Carlos Condit refusing to fight Jon Fitch and much much more MMA on this 2-hour episode of Ringside Report Radio.
Wrestling Uncensored Episode 13, original air date: October 30, 2010. Hosted by Dave Simon and Jeremy Prophet.
Simon and Prophet review the WWE Bragging Rights pay-per-view and preview the WWE house show that took place on October 31 in Montreal.
WWE Superstar Ted DiBiase was interviewed on this show to talk about his career and the Montreal live event.
All this and more on this episode of Wrestling Uncensored.

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In a recent decision, Peterson v. Flare Fittings, Inc., Florida’s Fifth District Court of Appeal examined the liability of various parties for an injury that occurred at a paintball tournament. Although the plaintiff in this case was a competitor in the competition, the injury at issue had nothing to do with flying paint.
The injury at issue in this case occurred on November 8, 2006. On that day, the plaintiff arrived at a Disney-owned facility that was serving as the venue for a paintball event being hosted by Paintball Sports Promotions, LLC. In addition to a paintball tournament, the event hosted a trade show for the advertising and sale of paintball-related goods. Although the plaintiff arrived on November 8, he was not set to compete until the 10th. While venturing through the vendor area on the 8th, the plaintiff alleges that he was struck in the head by a balloon, which he described as 10 feet in diameter and attached to a tree beside a tent that was being operated by either Flare Fittings, Inc. or Crossfire Paintball, Inc. The plaintiff acknowledged that he did not know what caused the balloon, which had been flying about 70 to 100 feet above the ground, to fall, but he claimed that the impact of the balloon knocked him down, dazed him, and left him in pain. The incident was reported to a manager at Disney, and the plaintiff alleges that the manager told him that Disney would cover his medical costs. The plaintiff sought treatment the same day. After his x-ray came back negative, the plaintiff left the hospital with prescriptions.
Two days later, the plaintiff returned to the site to compete in the competition. Prior to the competition, the plaintiff signed a waiver agreement, which purported to release various parties from any liability for claims incidental to his participation in the event. After returning home, the plaintiff initiated a negligence suit against Disney, Flare, and Crossfire for injuries arising from the incident on November 8. Following discovery, the defendants moved for summary judgment. Disney argued that the plaintiff had waived any possible claims by executing the waiver agreement, and Flare and Crossfire argued that the plaintiff failed to produce sufficient evidence that they breached any duty that resulted in the injury to the plaintiff. The trial court granted all three motions. The Fifth District, however, reversed and remanded the case for trial.
First, the Fifth District addressed the waiver agreement that Disney argued barred the plaintiff’s claims. Under Florida law, exculpatory provisions are generally disfavored because “they relieve one party of the obligation to use due care and shift . . . risk of injury to the party who is probably [less] equipped to take . . . necessary precautions to avoid injury.” Appelgate v. Cable Water Ski, L.C., 974 So. 2d 1112, 1114 (Fla. 5th DCA 2008). Accordingly, although a valid exculpatory agreement may be enforced, it will be narrowly construed and limited “to the extent that the intention to be relieved from liability is . . . clear and unequivocal.” Tatman v. Space Coast Kennel Club, Inc., 27 So. 3d 108, 110 (Fla. 5th DCA 2009). Given that Disney sought to invoke a post-injury waiver, the language need not be specific, but the parties must be still be aware “of the circumstances related to the injury[,] [such that] the injured party can reasonably be held accountable for . . . appreciating the implications of [the] release.” Abis v. Tudin, D.V.M., P.A., 18 So. 3d 666, 669. The Fifth District concluded that the ambiguity in the waiver agreement’s language prevented a finding that the plaintiff had sufficient awareness and accountability at the time he signed the waiver. Although the agreement purported to cover injuries before competition, the court noted that the language in the release focused on participation in the event and not on activities in the vendor area. Since the agreement did not clarify that it sought to remove liability for acts beyond the tournament, it did not provide sufficient notice to the plaintiff that he was waiving his claims.
Next, the Fifth District turned to the other defendants’ argument that there was insufficient evidence in the record from which a reasonable jury could conclude that they acted negligently. The Fifth District acknowledged that the evidence, which was mainly the plaintiff’s deposition testimony, was thin. However, the court reiterated that summary judgment is not proper “even [if] there is no conflict in the evidence, [so long as] inferences reasonably deducible [from the available evidence] cast doubt upon material issues.” McCabe v. Walt Disney World Co., 350 So. 2d 814, 815 (Fla. 4th DCA 1977). The court noted that the plaintiff testified that the balloon bore Crossfire’s logo, that the balloon was positioned next to a tent being operated by either Flare or Crossfire, and that following the incident the balloon was removed by a representative from the tent. Accordingly, although the evidence was thin, the Fifth District concluded there was sufficient evidence that either Flare or Crossfire could bear liability for failing to secure, position, or maintain the balloon. In a negligence case, the party moving for summary judgment has the burden of showing that the other party cannot prevail, not that the other party is unlikely to prevail. See Lake Sue Dev. Co., Inc. v. Keewin Real Prop. Co., 950 So. 2d 1280, 1282 n.3 (Fla. 5th DCA 2007). Although the evidence was meager, the Fifth District found it sufficient, especially in light of the fact that the defendants had not adduced evidence demonstrating a lack of negligence on their part but simply had attacked the evidence proffered by the plaintiff.
As Peterson demonstrates, injuries can often happen in unexpected ways. Indeed, the plaintiff may have fully expected to go home with bruises from whirling projectiles, but he likely didn’t expect to be struck by a balloon. Even when an injury may come in an expected manner, the law may nonetheless impose liability on those who could have reasonably prevented the harm. There are many steps in the process from filing a complaint to a jury trial, and anyone who has been injured in a possible incident of negligence should consider finding experienced counsel prior to undertaking any legal action. The South Florida premises liability attorneys at Frankl & Kominsky have represented many Floridians harmed as a result of negligence in maintaining or safeguarding property, and they can help you assess the viability of a possible claim. If you’ve recently been injured and would like to know more about the legal options you may have, feel free to contact us for a free case consultation.

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As used in this chapter, the following terms shall have the following meanings:”Collateral charges” means any sales-related or lease-related charges including but not limited to sales tax, license fees, registration fees, title fees, finance charges and interest, transportation charges, dealer preparation charges or any other charges for service contracts, undercoating, rust proofing or installed options, not recoverable from a third party. If a refund involves a lease, “collateral charges” means, in addition to any of the above, capitalized cost reductions, credits and allowances for any trade-in vehicles, fees to another to obtain the lease, and insurance or other costs expended by the lessor for the benefit of the lessee.”Comparable motor vehicle” means a motor vehicle that is identical or reasonably equivalent to the motor vehicle to be replaced, as the motor vehicle to be replaced existed at the time of purchase or lease with an offset from this value for a reasonable allowance for its use.”Consumer” means the purchaser, other than for purposes of resale, or the lessee, of a motor vehicle used in substantial part for personal, family, or household purposes, and any person to whom such motor vehicle is transferred for the same purposes during the duration of any warranty applicable to such motor vehicle, and any other person entitled by the terms of such warranty to enforce the obligations of the warranty.”Incidental damages” shall have the same meaning as provided in § 8.2-715.”Lemon law rights period” means the period ending eighteen months after the date of the original delivery to the consumer of a new motor vehicle. This shall be the period during which the consumer can report any nonconformity to the manufacturer and pursue any rights provided for under this chapter.”Lien” means a security interest in a motor vehicle.”Lienholder” means a person, partnership, association, corporation or entity with a security interest in a motor vehicle pursuant to a lien.”Manufacturer” means a person, partnership, association, corporation or entity engaged in the business of manufacturing or assembling motor vehicles, or of distributing motor vehicles to motor vehicle dealers.”Manufacturer’s express warranty” means the written warranty, so labeled, of the manufacturer of a new automobile, including any terms or conditions precedent to the enforcement of obligations under that warranty.”Motor vehicle” means only passenger cars, pickup or panel trucks, motorcycles, self-propelled motorized chassis of motor homes and mopeds as those terms are defined in § 46.2-100 and demonstrators or leased vehicles with which a warranty was issued.”Motor vehicle dealer” shall have the same meaning as provided in § 46.2-1500.”Nonconformity” means a failure to conform with a warranty, a defect or a condition, including those that do not affect the driveability of the vehicle, which significantly impairs the use, market value, or safety of a motor vehicle.”Notify” or “notification” means that the manufacturer shall be deemed to have been notified under this chapter if a written complaint of the defect or defects has been mailed to it or it has responded to the consumer in writing regarding a complaint, or a factory representative has either inspected the vehicle or met with the consumer or an authorized dealer regarding the nonconformity.”Reasonable allowance for use” shall not exceed one-half of the amount allowed per mile by the Internal Revenue Service, as provided by regulation, revenue procedure, or revenue ruling promulgated pursuant to § 162 of the Internal Revenue Code, for use of a personal vehicle for business purposes, plus an amount to account for any loss to the fair market value of the vehicle resulting from damage beyond normal wear and tear, unless the damage resulted from nonconformity to any warranty.”Serious safety defect” means a life-threatening malfunction or nonconformity that impedes the consumer’s ability to control or operate the new motor vehicle for ordinary use or reasonable intended purposes or creates a risk of fire or explosion.”Significant impairment” means to render the new motor vehicle unfit, unreliable or unsafe for ordinary use or reasonable intended purposes.”Warranty” means any implied warranty or any written warranty of the manufacturer, or any affirmations of fact or promise made by the manufacturer in connection with the sale or lease of a motor vehicle that become part of the basis of the bargain. The term “warranty” pertains to the obligations of the manufacturer in relation to materials, workmanship, and fitness of a motor vehicle for ordinary use or reasonable intended purposes throughout the duration of the lemon law rights period as defined under this section.
If you’re reading this for anything important, you should double-check its accuracy—read § 59.1-207.11 on the official Code of Virginia website.
. . . motor vehicles under the Act. See Va.Code Ann. § 59.1-207.11 (2001). The parties have completed . . .
. . . The word is found at four places in Code § 59.1- . . .