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Legal Issues in High School Athletics has featured my recent article concerning a lawsuit arising from the injury of an East Lyme (Conn.) high school track athlete in its May-June 2010 issue. The article fits in nicely with my blog series “Friday Night Rights”, which covers the legal and business issues that arise in high school sports.
During the winter, the scene is the same at high schools across New England. The basketball teams occupy the gymnasium from the moment the final bell rings. Hockey teams schedule ice time at local arenas for practice and games. With meets held at local colleges with large indoor facilities, the track team often has no official practice area. As a matter of necessity, track coaches and athletes must be creative in finding practice space. If I recall correctly from my days at Natick High School (Mass.), it was not unusual to see sprinters and hurdlers practicing their craft in the school hallways.
In 2007, East Lyme High School (Conn.) had a similar practice. Sprinters would practice in a straight hallway. During one drill, sprinters would race in pairs for approximately 100 yards. They had allegedly been coached to finish with their heads down and extended, to provide the best opportunity for victory. Following the sprint, the momentum of the athletes would carry them into a concrete wall, which the athletes would use to brace themselves and stop. Unfortunately, during one of these drills an East Lyme sprinter was unable to stop. Nicholas Furlani’s feet became tangled with another sprinter’s feet at the finish line, causing him to crash head-first into the concrete wall and suffer injury. Mr. Furlani subsequently brought a lawsuit, Furlani v. Town of East Lyme, Docket Number CV08-5005850-S, against town and school officials in East Lyme.
I will not hold the East Lyme Public Schools or the East Lyme Board of Education or its employees responsible for any injury sustained while engaging in any practice or game or while traveling to or from practices or contests.
The Court (Parker, J.T.R.), in Furlani v. Town of East Lyme, 2010 WL 744995 (Conn. Super. Jan. 22, 2010), found that the waiver did not in fact release the defendants from their alleged negligence. First, the Court found that the release was not sufficiently specific. Citing the Connecticut Supreme Court’s decision in Hyson v. White Mountain Resorts of Connecticut, 265 Conn. 636 (2003), the Court noted that the release did not unequivocally state that claims predicated on the releasee’s negligence were being released. Second, the Court drew parallels to the Connecticut Supreme Court’s decisions in prior cases, which held that exculpatory agreements in connection with recreational activities were void against public policy.
In fact, the Connecticut Supreme Court has consistently held that there is an important public policy in promoting participation in recreational and athletic activities, which “constitute an important and healthy part of everyday life.” Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314 (2005). In so holding, the Court has voided exculpatory agreements in connection with snow tubing, horseback riding and health clubs. See Hanks v. Powder Ridge Restaurant Corp.; Reardon v. Windswept Farm, LLC; and Schneeloch v. Glastonbury Fitness & Wellness, Inc., 2009 WL 416645 (Conn. Super. Feb. 2, 2009).
The Court in Furlani recognized the distinction between exculpatory agreements in the private context of recreational facilities, such as ski resorts, equestrian centers and health clubs, and high school athletics. Nevertheless, the Court saw no reason to deviate from its policy of voiding agreements that attempt to disclaim negligence in the context of recreational activity.
Considering the Connecticut Supreme Court’s stated public policy of promoting recreational activities, one could argue that those policy concerns are amplified when dealing with high school athletics. The participants are often minors, and the relationship between coach and high school student athlete involves far different dynamics than the relationship between ski resort owner and participant, or health club owner and member. High school student-athletes rely far more heavily on coaches for guidance and instruction. Accordingly, it would appear that Connecticut courts would be unwilling to enforce any agreement disclaiming a school or coach’s negligence in connection with a student’s participation in high school athletics.
Legal Issues in High School Athletics is a bimonthly newsletter that features detailed case summaries, articles and news briefs that are relevant to high school athletics. The newsletter is edited by veteran sports law journalist Holt Hackney of Hackney Publications. Daniel B. Fitzgerald, publisher of the blog Connecticut Sports Law and attorney with Updike, Kelly & Spellacy, and Robert J. Romano, founder of the Romano Sports Agency, serve as contributing editors. For subscription information, click here.
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85 Wn.2d 52, ARNE M. GRIMSBY, Appellant, v. WERNER E. SAMSON et al, Respondents.
 Pleading - Dismissal and Nonsuit - Failure To State Claim - Review. In the absence of an indication in the record that the trial court considered other than the pleadings in a motion for dismissal for failure to state a claim for which relief could be granted, a reviewing court must accept the alleged facts in the complaint as true and determine whether a state of facts could exist which would permit the plaintiff to obtain relief under his claim.
 Negligence - Damages - Third-Party Injury - Foreseeability. A defendant is not liable for severe emotional shock and any resulting physical injuries suffered by a close relative in the immediate vicinity of a person negligently injured by the defendant even though the presence of such a relative and his shock are reasonably foreseeable.
 Negligence - Torts - Outrage - Definition. The tort of outrage is committed by intentionally or recklessly causing severe emotional distress to a person known to be particularly susceptible to such distress through nonprivileged conduct characterizable as extreme, atrocious, and utterly intolerable in a civilized society and directed against an immediate family member of, and in the presence of, the person so distressed.
pleading which incorporate the elements of the tort of outrage are sufficient to state a claim upon which relief may be granted.
FINLEY, J., concurs in the result only; UTTER, J., concurs by separate opinion; WRIGHT, J., HALE, C.J., and HUNTER, J., dissent by separate opinion.
Appeal from judgments of the Superior Court for King County, No. 765314, Solie M. Ringold, J., entered July 18 and August 3, 1973. Reversed and remanded.
Action for damages. The plaintiff appeals from judgments of dismissal.
Daniel F. Sullivan & Associates and Daniel F. Sullivan and Joan Smith Lawrence, for appellant.
Williams, Lanza, Kastner & Gibbs and Fred M. Zeder and Henry Kastner, for respondent Samson.
Lycette, Diamond & Sylvester, by Earle W. Zinn and John Petrie, for respondent Ballard Community Hospital.
This is an appeal from the dismissal of a complaint for failure to state a claim.
Appellant Arne M. Grimsby (plaintiff) filed a claim for damages based upon the "tort of outrage" said to have arisen out of his wife's death. Decedent's physician, Dr. Werner E. Samson, and the Ballard Community Hospital, where decedent met her death, were named as defendants.
A separate claim for wrongful death was instituted against both defendants. That action is not before us, however, and we express no opinion thereon.
Defendants moved separately for orders of dismissal contending plaintiff had failed to state a claim for which relief could be granted. In each case the motion was granted and the claim was dismissed with prejudice. Plaintiff appeals.
At the outset, defendants have moved to dismiss the appeal and affirm the trial court's judgment of dismissal with prejudice. They point out that plaintiff failed to file a statement of facts as required by ROA I-34 and ROA I-37. Thus, they assert, the trial court's judgments in favor of defendants must be affirmed without reaching the merits because this court has no statement of facts on which to base review, and it is presumed in such a case that the trial court's judgments were proper in law and in fact. Kataisto v. Low, 73 Wn.2d 341, 438 P.2d 623 (1968) is cited in support.
which relief could be granted. Thus, we are here concerned with CR 12(b) (6) rather than CR 56. As such, the compelling reasons for the necessity of a statement of facts set forth in Kataisto are not present in the issues raised by the instant motions and resultant orders.
 Although affidavits were apparently filed in connection with defendants' motions to dismiss for failure to state a claim, there is no indication of how or whether they were considered in determining the ultimate order issued by the trial judge. Thus, the order entered will be accepted at face value as one having been granted for failure to state a claim for which relief could be granted. CR 12(b) (6). Consequently, the only question before us, and the only issue actually before the trial judge, is whether it can be said that there is no state of facts which plaintiff could prove entitling him to relief under his claim. Barnum v. State, 72 Wn.2d 928,435 P.2d 678 (1967). The factual allegations of the complaint must be accepted as true for the purpose of the motion. Hofto v. Blumer, 74 Wn.2d 321, 444 P.2d 657 (1968).
court stressed (1) the mother's close proximity to the scene of the accident; (2) the shock having resulted from a direct emotional impact upon her from the sensory and contemporaneous observance of the accident, as contrasted with learning of it from others after its occurrence; and (3) the close mother-child relationship. The court also limited its holding to the case in which a "plaintiff suffered a shock which resulted in physical injury . . ." Dillon v. Legg, supra at 740.
As predicted in Tobin, the California courts quickly extended the rationale of Dillon to a parent who had not witnessed the accident. The year following Dillon, a mother was allowed recovery although she did not actually witness her child's accident. She came upon the scene moments after the accident occurred. Archibald v. Braverman, 275 Cal. App. 2d 253, 79 Cal. Rptr. 723 (1969). Thus, within a short period of time, the element of foreseeability was broadened and extended and with it the nature of the duty owed to third parties. As observed in Tobin, even assuming there are cogent reasons for extending liability in favor of victims of shock resulting from injury to others, there appears to be no rational way to restrict the scope of liability' even as attempted by Dillon's three limiting standards. None are of much help if they are expected to serve the purpose of holding a strict rein on liability if the test is to be "reasonably objective."
We have reviewed the foregoing cases and feel the New York court's critical analysis of Dillon is well considered. We, too, follow the majority view and reject the Dillon concept.
severe emotional distress to a member of such person's immediate family, should be liable if the person so affected is present at the time. He cites Restatement (Second) of Torts § 46(2).
As a general rule, we have denied recovery for mental anguish and distress in cases not involving malice or wrongful intent, unless there has been an actual invasion of a plaintiff's person or security, or a direct possibility thereof. Smith, v. Rodene, 69 Wn.2d 482, 418 P.2d 741 (1966); Murphy v. Tacoma, 60 Wn.2d 603, 374 P.2d 976 (1962). However, in Schurk v. Christensen, 80 Wn.2d 652, 497 P.2d 937 (1972), we indicated our willingness to reexamine this rule and the policy considerations which underlie it. Two major considerations generally referred to are: (1) the likelihood that courts will be flooded by fraudulent claims and (2) the defendant's potentially unlimited liability for every type of mental disturbance. Schurk v. Christensen, supra; Rodrigues v. State, supra.
The courts may and should take cognizance of fraud and collusion when found to exist in a particular case.
system is so imperfect that fraudulent claims cannot be distinguished from the legitimate." We do not subscribe to this pessimistic premise. Goode v. Martinis, 58 Wn.2d 229, 234, 361 P.2d 941 (1961).
[3,4] The second argument, that a defendant will have potentially unlimited liability for every type of mental disturbance, is, we feel, adequately met by the standards set forth in the comments to Restatement (Second) of Torts §46. First, the emotional distress must be inflicted intentionally or recklessly; mere negligence is not enough. Second, the conduct of the defendant must be outrageous and extreme. As indicated by comment d, it is not enough that a "defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by `malice,' or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort." Liability exists "only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." (Italics ours.) Comment d further points out that liability in the tort of outrage "does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities." In this area plaintiffs must necessarily be hardened to a certain degree of rough language, unkindness and lack of consideration. Clearly a case-by-case approach will be necessary to define the precise limits of such conduct. Nevertheless, among the factors a jury or court should consider are the position occupied by the defendant (comment e), whether plaintiff was peculiarly susceptible to emotional distress and defendant's knowledge of this fact (comment f), and whether defendant's conduct may have been privileged under the circumstances (comment g).
Third, the conduct must result in severe emotional distress to the plaintiff (comment j). Resulting bodily harm would, of course, be an indication of severe emotional distress, but a showing of bodily harm is not necessary.
Fourth, the plaintiff must be an immediate family member of the person who is the object of the defendant's actions, and he must be present at the time of such conduct (comment l).
Turning to plaintiff's complaint, we find that it states a cause of action under § 46(2) (a). It is alleged that defendants' conduct was reckless and wanton; that it was outrageous in that plaintiff "was required to witness the terrifying agony and explicit pain and suffering of his wife while she proceeded to die right in front of his eyes and at all times remaining helpless because of his inability to secure any medical care or treatment for his wife at all . . ." Finally, this conduct on the part of the defendants is alleged to have caused plaintiff severe mental anguish which has resulted in physical injury.
While we adopt the theory of Restatement (Second) of Torts § 46(1), (2) and (2) (a), the issues raised by subsection (2) (b) are not before us and we do not pass upon them.
The order of dismissal is reversed and the case remanded to the trial court for further proceedings.
ROSELLINI, HAMILTON, and BRACHTENBACH, JJ., concur.
FINLEY, J., concurs in the result.
UTTER, J. (concurring) - I concur with the majority. I do not, however, join in its unnecessary rejection of the rule of Dillon v. Legg, 68 Cal. 2d 728, 441 P.2d 912 (1968). Since we hold that appellant is able to recover on a theory of the tort of outrage, and thus that his complaint does state a cause of action, we need not and should not comment on the Dillon rule in this case.
Were the Dillon rule necessarily at issue in this case, I would follow it. The reasons for rejecting it seem to me to echo those advanced for refusing to allow recovery for the tort of outrage. As the majority finds, neither are persuasive considering the established ability of trial courts to define causation and foreseeability on a case-by-case basis.
The Supreme Court of Hawaii has recently recognized the vitality of the Dillon rule and applied and extended it in a case where a 10-year-old boy allegedly suffered severe mental distress when he witnessed the death of his stepgrandmother who was struck by a car in a crosswalk. Leong v. Takasaki, ____ Hawaii ____, 520 P.2d 758 (1974). As the court there noted, courts in Rhode Island, Virginia and Michigan have also recently followed California's lead D'Ambra v. United States, 354 F. Supp. 810 (D.R.I. 1973), modified on other grounds, 481 F.2d 14 (1st Cir. 1973); Hughes v. Moore, 214 Va. 27, 34, 197 S.E.2d 214, 219 (1973); Toms v. McConnell, 45 Mich. App. 647, 657, 207 N.W.2d 140 (1973).
WRIGHT, J. (dissenting) - I dissent. The tort of "outrage" has never been known in the law in this state. Plaintiff, appellant herein, was represented by extremely competent and experienced counsel. Appellant, however, could show little, if any, authority for the creation of a new tort to be known as the tort of "outrage."
The Restatement (Second) of Torts § 46 (1965) is cited. It should be noted, however, that every one of the examples following section 46 related to active conduct of the alleged tort-feasor. The case now before the court relates, at most, to passive conduct.
differences between that case and the matter now before the court, the Oregon court said at page 64: "This is a close case." The Oregon case, if not unique, is nearly so. It represents the outer limits to which the law has gone in such matters. It does not, however, go nearly to the unprecedented extreme to which appellant would have us journey in this case.
The California cases cited by appellant, Dillon v. Legg, 68 Cal. 2d 728, 69 Cal. Rptr. 72, 441 P.2d 912 (1968) and Archibald v. Braverman, 275 Cal. App. 2d 253,79 Cal. Rptr. 723 (1969), both involved active negligence of the defendant. Those cases do not represent a majority rule, have been severely criticized, and are not authority in the instant case.
Schurk v. Christensen, 80 Wn.2d 652, 497 P.2d 937 (1972), was a case in which there was active misconduct, by one defendant, against whom action was permitted. The other defendants were guilty of only passive misconduct, and a summary judgment of dismissal as to them was affirmed. That case is substantially different from the matter now before the court, but it does recognize the distinction between the active and the passive tort-feasor in relation to claims for emotional distress and mental anguish.
plaintiff's person or security or a direct possibility thereof. See Murphy v. Tacoma, 60 Wn.2d 603, 374 P.2d 976 (1962), and cases cited therein.
Another and powerful reason exists for affirming the order of dismissal. This permits a double recovery. As conceded by appellant and by the majority, an action for wrongful death is pending.
RCW 4.20.020, after providing for an action for wrongful death for the benefit of, inter alia, a wife or husband, contains this language: "In every such action the jury may give such damages as, under all circumstances of the case, may to them seem just." In Davis v. North Coast Transp. Co., 160 Wash. 576, 295 Pac. 921 (1931), it was held at page 583 an instruction "submitting to the jury, as an element of damages for which recovery could be had, the loss of the society, protection and companionship of her deceased husband.'" was a proper instruction.
Appellant cites Wilson v. Lund, 80 Wn.2d 91, 491 P.2d 1287 (1971). It should be emphatically noted, Wilson was a wrongful death case wherein recovery was permitted for grief and mental anguish. While Wilson was in part based on the statute relative to the parent-child relationship, it was also in part based upon case law. If Wilson is. applicable to the matter before the court in any way, it is to demonstrate that a double recovery herein is not a mere possibility. It is a probability, if not a certainty, if both actions may be maintained.
It matters not that one action, the one presently before the court, is by the husband in his own right, while the other, the wrongful death action, is by the husband as administrator for the benefit of himself. Any attempt to differentiate between the two actions may result in many words, and many fine-spun theories, but all of the words and all of the theories will vanish as chaff before a windstorm in the face of the stark reality: the same person is seeking recovery for the same damage in two different actions.
For the reasons stated, I would affirm the judgment of dismissal.
HALE, C.J., and HUNTER, J., concur with WRIGHT, J.


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The Complainant is Pfizer Inc. of New York, United States of America, represented by Kaye Scholer, LLP, United States of America.
The Respondent is Vladyslav Rybak of Kiev, Ukraine.
The disputed domain name <viagraotc.net> is registered with Moniker Online Services, LLC (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the ”Center”) on September 14, 2012. On September 14, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 17, 2012, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on September 26, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was October 16, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 18, 2012.
The Center appointed Luca Barbero as the sole panelist in this matter on November 5, 2012. 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.
The Complainant is among the largest pharmaceutical enterprises in the world with global operations in more than 150 countries. It discovers, develops, manufactures and markets prescriptions medicines for human and animals, as well as consumer healthcare and nutritional products. The Complainant’s Viagra medication (sildenafil citrate) was the first approved oral medication for the treatment of erectile dysfunction.
Viagra medication was approved by the United States Food and Drug Administration (the “FDA”) on March 27, 1998, and the mark has been used on or in connection with the sildenafil citrate product in the United States since April 6, 1998.
The Complainant and its affiliates own trademark registrations for the VIAGRA mark in more than 150 countries in the world, as shown in the list of trademark registrations for VIAGRA submitted as Annex 4 to the Complaint.
The Complainant is the owner, amongst others, of the United States Trademark No. 2,162,548 for VIAGRA, registered on June 2, 1998, in International class 5.
The Complainant is the owner of the domain name <viagra.com>, which was registered on June 19, 1997.
The disputed domain name <viagraotc.net> was registered on December 22, 2009 and is redirected, at the time of the drafting of the decision, to a web page promoting the sale of “cheap VIAGRA” drugs; selecting the link “buy now” published on the web page, users are redirected to a web site where various medicines are offered for sale.
The Complainant states that “Sildenafil citrate” is marketed in the United States and in numerous other countries under the Complainant’s trademark VIAGRA, which is well-known and famous throughout the world.
Since its approval in 1998, which was highly publicized, the Viagra medication has been the subject of intense media attention, public scrutiny and commentary throughout the world. Therefore, the Complainant highlights that, by virtue of this extensive publicity and of the Complainant’s own post-approval advertising and promotion, the Complainant’s trademark has become famous throughout the world as designating the Complainant’s brand of oral therapy for erectile dysfunction.
The Complainant underlines that Viagra is a coined and fanciful term having no denotative meaning and that it is universally recognized and relied upon as identifying the Complainant as the sole source of the drug, and as distinguishing the Complainant’s product from the goods and services of others. As a result, the Complainant concludes that the VIAGRA trademark has acquired substantial goodwill and is an extremely valuable commercial asset.
The Complainant contends that the disputed domain name is confusingly similar to its trademark VIAGRA, as it incorporates the trademark with the addition of the generic term “otc”. The Complainant also underlines that the disputed domain name is confusingly similar to the domain name <viagra.com>, at which the Complainant operates a web site.
With reference to right or legitimate interest in the disputed domain name, the Complainant states that it is not affiliated in any way with the Respondent and has never authorized it to register or use the disputed domain name or the VIAGRA mark.
The Complainant also states that the Respondent has no right or legitimate interest in the VIAGRA mark (or any variant spelling) or in the disputed domain name and that, upon information and belief, the Respondent is not commonly known by the name “Viagra,” “Viagraotc.net” or any variation thereof.
The Complainant contends that the Respondent’s use of the disputed domain name confirms that it is not making a legitimate noncommercial or fair use of the disputed domain name without intent for commercial gain. The Complainant states that the Respondent has intentionally registered the disputed domain name explicitly for the purpose of making illegitimate or unfair use of the Complainant’s mark to attract visitors who will then generate pay-per-click fees when they click through the links on Respondent’s website. The Complainant highlights that the online pharmacy to which user are redirected sells products that compete with the Complainant’s products, such as the “Cialis” and “Levitra” drugs for erectile dysfunction, as well as purported “Viagra soft” tablets which are not authorized by the Complainant and infringe upon the VIAGRA mark.
The Complainant highlights that redirecting Internet users to web sites featuring revenue generating advertisements or links does not constitute a “bona fide offering of goods or services” and is not “a legitimate or noncommercial fair use”. The Complainant asserts that prior panels have repeatedly held that a registrant has no legitimate interest in the Complainant’s VIAGRA trademark where, as in the present case, the registrant was using its domain name to direct Internet users to online pharmacies that offered for sale, inter alia, products that competed with the Complainant’s genuine Viagra product.
With reference to the bad faith requirement, the Complainant contends that the Respondent, like the public generally, is well aware of the vast and valuable goodwill and reputation represented and symbolized by the VIAGRA trademark and underlines that the VIAGRA mark is recognized and relied upon by medical professionals and the public throughout the world as the sole means to identify and distinguish the Complainant and its erectile dysfunction medication from the goods and services of others.
The Complainant highlights that the VIAGRA mark is an invented and coined mark that has a strong worldwide reputation, of which the Respondent was undoubtedly aware at the time the disputed domain name was registered. The Complainant also states that the Respondent’s references, on the web site corresponding to the disputed domain name, to erectile dysfunction, to purported Viagra product and to products that compete with Viagra tablets, confirms the Respondent’s awareness of the Complainant’s VIAGRA mark. Moreover, by virtue of the Complainant’s registration of the VIAGRA mark in the United States and other jurisdictions, Respondent had constructive knowledge of the Complainant’s rights in the mark at the time the domain was registered.
With reference to the use of the disputed domain name, the Complainant contends that the Respondent has registered and is using the disputed subject domain name intentionally to misdirect and divert customers looking for information about the Complainant and its Viagra product to a for-profit web site that collects pay-per-click revenue from sites that offer third-party products, including products that compete with genuine Viagra product. The Complainant highlights that this creates a likelihood of confusion with the Complainant’s marks as to the source, sponsorship, affiliation, or endorsement of the site to which the domain name resolves, the on-line retailers to which that site links, and the non-Complainant products sold on those sites.
The Panel finds that the disputed domain name is confusingly similar to the trademark VIAGRA owned by the Complainant.
See inter alia, amongst others, Barry D. Sears, Ph.D. v. YY / Yi Yeanling, WIPO Case No. D2007-0286 (“diet” added to the ZONE mark); Fry’s Electronics, Inc. v. Who’s ID Theft Protection, WIPO Case No.? D2006-1435 (“electronic” added to the FRY mark); Wal-Mart Stores, Inc. v. Henry Chan, WIPO Case No. D2004-0056 (“chase”, “girlsof”, “jobsat”, “sams”, “application”, “blackfriday”, “blitz”, “books”, “career(s)”, “check”, “flw”, “foundation”, “games”, “mart”, “photostudio”, “pictures”, “portrait”, “portraitstudio(s)”, “registry”, “retaillink” and “wire” added to the WALMART mark); PepsiCo, Inc. v. Henry Chan, WIPO Case No. D2004-0033 (“chart”, “miusic”, “earena”, “sweep”, “nfl” and “coliseum” added to the PEPSI mark); International Organization for Standardization ISO v. Quality Practitioners Institute and Website Pros, Inc. and Quality, WIPO Case No. D2005-1028 (“net” and “training” added to the ISO mark); Banca Intesa S.p.A v. Roshan Wickramaratna, WIPO Case No. D2006-0215 (“online” added to BANCAINTESA mark); Groupe Auchan v. Jakub Kamma, WIPO Case No. D2007-0565 (addition of the term “software” to the trademark AUCHAN).
Therefore, the mere addition of the acronym “otc”, which stands for “over-the-counter” medicines, does not exclude the likelihood of confusion between the disputed domain name and the Complainant’s trademark.
Accordingly, in line with the UDRP precedents, it is sufficient that the Complainant show a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name in order to shift the burden of production to the Respondent. If the Respondent fails to demonstrate rights or legitimate interests in the disputed domain name in accordance with paragraph 4(c) of the Policy or on any other basis, the Complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy (Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003 0455; Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110; MetAmerica Mortgage Bankers v. Whois ID Theft Protection, c/o Domain Admin, NAF Claim No. FA852581).
The Panel observes that there is no relation, disclosed to the Panel or otherwise apparent from the record, between the Respondent and the Complainant. The Respondent is not a licensee of the Complainant, nor has the Respondent otherwise obtained an authorization to use the Complainant’s trademark. There is also no indication before the Panel that the Respondent is commonly known by the disputed domain name.
In addition, the Panel finds that the use of the disputed domain name, incorporating the Complainant’s trademark, to promote the sale of products that compete with the Complainant’s products, such as the “Cialis” and “Levitra” drugs for erectile dysfunction, as well as purported “Viagra soft” tablets which are not authorized by the Complainant, does not constitute a bona fide offering of goods or services, or a legitimate, noncommercial or fair use of the disputed domain name.
As to bad faith at the time of the registration, the Panel notes that, in light of the well-known character of the Complainant’s trademark VIAGRA, recognized also in many prior UDRP decisions (inter alia, Pfizer Inc. v. Jeff Ferris, WIPO Case No. D2006-1242; Pfizer Inc. v. Pretzel Publishing, WIPO Case No. D2005-1329; Pfizer Inc. v. CheapViagraStore, WIPO Case No. D2005-0159; Pfizer Inc. v. Carlos Rosario, WIPO Case No. D2005-0067; Pfizer Inc v. Phillip Pizzurro, WIPO Case No. D2004-0600; Pfizer Inc v. Generic Viagra Pills, WIPO Case No. D2004-0592; Pfizer Inc v. Kent Gormat aka kgormat, WIPO Case No. D2004-0591) and supported by the intensive advertising campaigns dedicated to the Complainant’s medication since its approval in 1998, the Respondent was or ought to be aware of the Complainant’s trademark when it registered the disputed domain name.
Moreover, the Panel agrees with the Complainant that the Respondent’s references, on the web site corresponding to the disputed domain name and on the web site linked thereto, to erectile dysfunction, to purported Viagra product and to products that compete with Viagra tablets, confirms the Respondent’s awareness of the Complainant’s VIAGRA mark.
With reference to the use of the disputed domain name, the Panel finds that, in light of the contents of the web page displayed at “www.viagraotc.net” and of the web site to which users are redirected by selecting the link “buy now” published on that web page, where various medicines, including purported Viagra product and medicines that compete with genuine Viagra product, are offered for sale, the Respondent has intentionally attempted to attract Internet users to its web site for commercial gain, by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the Respondent’s web site, of the web site linked thereto and of the products promoted and sold thereon.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <viagraotc.net> be transferred to the Complainant.

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Law Web: Whether mother can be granted permission to give child in adoption if father has renounced the child?
Whether mother can be granted permission to give child in adoption if father has renounced the child?
In the present case, there cannot be any denial of the fact that the petitioner i.e. the mother of Master Lakshya is his guardian. It can also not be denied that the respondent no. 3-Gaurav Gupta, the biological father of Master Lakshya has completely forsaken him and has given up all his rights including the right of visitation and has also categorically given the responsibility of bringing up the minor to the petitioner. In the proceedings before the Principal Judge, Family Court concerned under section 13-B of the Hindu Marriage Act, the affidavit filed by respondent no. 3, contents whereof have been quoted herein before, is self speaking and explanatory. Biological father of the child, in the present case has abandoned him; rather has renounced him and has not performed any of his duties, which he owes to the child. He has also given up all his rights including the right of visitation.
49. Master Lakshya also requires an atmosphere of more enduring relationship. In this background, I am in complete agreement with the judgment of the Division Bench of Hon'ble Delhi High Court in the case of Teesta Chattoraj (supra) and reiterate that if the biological father in this case has not taken any measures to bear his responsibility, the laws and the Court will hesitate to grant any such right in favour of a parent who has failed to do so.
50. I further agree with the said judgment of Delhi High Court with all sincerity where it enunciates that though Indian law does not, on renunciation of child by either parent, vests an exclusive right in the other to give the child in adoption, however, such renunciation of the child by a parent can be taken into consideration while determining whether the power to give in adoption has been delegated, or to determine the consent to giving in adoption.
51. This Court can also not loose sight of the duty cast on it to exercise parens patriae jurisdiction to secure the care, protection and welfare of the child. International Convention on Rights of Child to which India is a signatory, also talks about ensuring a system of adoption to be in place which serves the best interest of the child, the same being of paramount importance.
Shweta Gupta v. Rahul Keshav Jadhao & Anr.
Devendra Kumar Upadhyaya, J.:— These proceedings, under Article 226 of Constitution of India, have been instituted by the petitioner impeaching an order dated 03.07.2017 passed by the Special Judge (Prevention of Corruption), CBI Court no. 5, Lucknow, whereby the application preferred by the petitioner under Section 9 of Hindu Adoptions and Maintenance Act, 1956 (for short ‘Act, 1956’) has been rejected and the learned court below has refused to accord its permission as required under Section 9 of the Act, 1956 to give petitioner's minor child in adoption to respondent no. 1, whom the petitioner has re-married following annulment of her first marriage with respondent no. 3 vide judgment and decree dated 27.05.2015.
2. Heard Ms. Bulbul Godiyal, learned Senior Advocate, Amicus appointed by the Court, Sri. Rohit Tripathi, learned counsel representing the petitioner and Sri. O.P. Nag, learned counsel representing respondent no. 1.
3. This Court while entertaining this petition passed an order on 17.07.2017 permitting impleadment of respondent no. 3 and also directing issuance of notice to him. The Court further directed that respondent no. 3 shall be served through dasti notices as well, apart from usual mode of service. The office accordingly issued notice and has submitted a report that the notice to respondent no. 3 was issued on 21.07.2017 and was also booked by the post on 29.07.2017, however, unserved envelope has been received with remark of the postman, “refused to receive”.
4. Learned counsel for the petitioner has filed an affidavit of service stating therein that the petitioner's father, after obtaining dasti notice from the registry, personally visited Puranpur, Pilibhit at the known address of respondent no. 3, but could not meet anyone in the house and consequently he sent the notices through private courier service on 25.07.2017. In the affidavit dated 06.08.2017 filed by the petitioner, it has been stated that upon inquiry from the office of courier service, it was revealed that dasti notice sent by the petitioner was served on the respondent no. 3 at his address and was actually received by one Ashok Kumar Gupta, father of respondent no. 3. In these circumstances, respondent no. 3 shall be deemed to have been sufficiently served, however, no one has put in appearance on his behalf.
5. The case at hand presents unique and peculiar facts where the petitioner who is the biological mother of a minor child, Master Lakshya, intends to give him in adoption to respondent no. 1 whom she has married after judicial separation from her earlier husband-respondent no. 3, who is the biological father of the minor.
6. In terms of the provisions contained in proviso appended to sub-section (2) of Section 9 of the Act, 1956, in case father and mother of a child are alive, then both have equal right to give a son or daughter in adoption. However, such right of giving son or daughter in adoption is impermissible to be exercised by either of them without consent of the other, unless one of them has renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.
7. Faced with such stumbling block in giving the minor in adoption to respondent no. 1, the petitioner has approached this Court by filing the instant petition for securing future and welfare of the minor.
8. After a prolonged litigation, the petitioner was judicially separated from her husband-respondent no. 3 by a decree of divorce passed on 27.05.2015. The case canvassed on behalf of the petitioner is that the biological father of the child, i.e. her first husband, has no relationship with the child, who has not even seen him ever since he was born and in such a situation since the petitioner has re-married after divorce, her son's welfare will be safe in case he is permitted to be adopted by respondent no. 1.
9. It has been submitted by learned counsel for the petitioner that looking to the very complex situation which has emerged in the facts of the present case, strict construction of the proviso appended to sub-section (2) of Section 9 of the Act, 1956 does not permit the petitioner's son to be given in adoption to respondent no. 1 without the consent of his biological father, however, he has, thus, pleaded that since the legislation governing the field does not envisage adoption in a situation which the facts of the present case have presented, this Court can always fill the gap and provide for omission in the legislation.
10. Citing various judgments of Hon'ble Supreme Court and some other Hon'ble High Courts, it has been emphasized by learned counsel for the petitioner that in the matter of adoption of a minor, it is the interest, welfare and secured future of the child which is of paramount importance and as such the permission as prayed for by the petitioner for giving her son in adoption to respondent no. 1 ought to be granted. He has, thus, contended that approach of learned court below while rejecting the application seeking leave/permission of the Court to give the minor in adoption appears to be somewhat pedantic, whereas it ought to have been constructive and tilting towards securing the welfare of the child.
11. Looking to the importance of the issue engaging attention of this Court in this case in the changing set up of the society, the Court had requested Ms. Bulbul Godiyal, learned Senior Advocate to assist this Court as Amicus. She very courteously responded to call of the Court and has ably provided her assistance and has made her submissions on the basis of various pronouncements of Hon'ble Supreme Court and those of some other High Courts.
12. The petitioner had earlier married respondent no. 3, their marriage having been solemnized on 15.06.2006 as per Hindu rites, customs and rituals. However, owing to unresolved and continuing differences between the petitioner and respondent no. 3, both of them decided to get the marriage dissolved by mutual consent. A male child, Master Lakshya, was born out of the said wedlock on 17.09.2009. It is on record that Master Lakshya was born in the care and custody of the petitioner and her parents and further that respondent no. 3-his biological father has not even seen him ever since his birth.
13. An application for dissolution of marriage was moved before the competent court under Section 13-B of Hindu Marriage Act, 1955 (for short ‘Act, 1955’). The application moved for dissolution of marriage under Section 13-B of the Act, 1955 was a joint petition in which certain averments and admissions were made by respondent no. 3 which are crucial to be noted by this Court for the purposes of arriving at a correct decision in this case.
15. In view of the aforesaid facts, what precipitates here is that respondent no. 3 has not made any contribution towards upbringing of the child and that respondent no. 3 is very clear in his mind that he will have no claim over the child and that it is the petitioner who shall always bear expenses in upbringing of the child and it is she in whose care and protection child shall remain.
16. The affidavit filed before the court below in the proceedings under Section 13-B of the Act, 1955 by respondent no. 3 also makes it clear that though he is the biological father of the minor, however, he will never lay or raise any claim regarding custody of Master Lakshya. He had also stated in the affidavit that he will not have even the right of visitation. In these circumstances, the conclusion is indefeasible that respondent no. 3 has severed all his relations with minor Master Lakshya.
17. As observed above, the joint petition moved by the petitioner and respondent no. 3 seeking divorce under Section 13-B of the Act, 1955 by mutual consent was allowed and the marriage was dissolved by the judgment and decree dated 27.05.2015 passed by the Principal Judge, Family Court, Lucknow.
18. After dissolution of marriage with respondent no. 3, the petitioner feeling the need of a life partner and also keeping in view the paramount interest of her minor child decided to marry respondent no. 1, who is an Engineering graduate from Indian Institute of Technology, Roorkee and is said to be presently gainfully employed in Australia, who is also likely to get permanent residency in Australia soon. The marriage of the petitioner with respondent no. 1 was solemnized on 31.07.2016. It has also come on record that respondent no. 3 is also a Hindu, born on 05.09.1975 and is a divorcée, his first marriage having been legally annulled. He does not have a child from his previous marriage. The petitioner, after her marriage with respondent no. 1, intends to shift to Australia for obvious reasons and accordingly in order to take Master Lakshya along with her to Australia, a necessity was felt that Master Lakshya be formerly taken in adoption by respondent no. 1.
19. It is in these circumstances that the application was moved by petitioner under Section 9 of the Act, 1956 seeking court's leave/permission to give Master Lakshya in adoption to respondent no. 1.
20. Learned court below has stated in the impugned order dated 03.07.2017 that since the putative father of Master Lakshya i.e. respondent no. 3-Gaurav Gupta is alive and he has not renounced the world, neither has he ceased to be a Hindu and further that he has also not been declared to be a person of unsound mind by any court, as such in absence of consent of respondent no. 3, permission sought by the petitioner for giving Master Lakshya in adoption cannot be granted.
“(2) Subject to the provisions of sub-section (3) and sub-section (4)], the father, if alive, shall alone have the right to give in adoption, but such right shall not be exercised save with the consent of the mother unless the mother has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind”.
22. Sub-section (2) of Section 9 gives the father and mother equal right to give a son or daughter in adoption, however, it poses a caveat to such right of a father or mother, according to which this right of giving the child in adoption, cannot be exercised by either the father or the mother except with the consent of the other unless one of them has completely renounced the world or has ceased to be a Hindu or has been declared to be a person of unsound mind by a competent court.
23. Sub-section (4) of Section 9 provides for and permits the guardian of a child to give the child in adoption with previous permission of the court, to any person including the guardian himself, however, sub-section (4) of Section 9 also puts a caveat to the right of a guardian of a child to give in adoption, according to which, such a right of giving in adoption by the guardian of a child can be exercised only where both, father and the mother, are dead or have completely renounced the world or have abandoned the child or have been declared by the competent court to be persons of unsound mind or also in a situation where the parentage of the child is not known. Sub-section (5) however, puts a caution to be exercised by the court while dealing with a prayer seeking permission to give a minor in adoption. Under sub-section (5) of Section 9 of the Act, 1956, the court before giving such permission has to be satisfied that the adoption will be for the welfare of the child and for the said purpose, due consideration is required to be given to the wishes of the child having regard to his/her age and understanding. The court also needs to be satisfied that the person seeking permission under sub-section (4) has not received or agreed to receive any payment or reward in consideration of adoption and further that no person has made or given or agreed to make or give any payment or reward to the applicant seeking permission of the court. Section 10 provides that under the said Act, no person is capable of being taken in adoption unless he/she is a Hindu and he/she has not already been adopted or he/she has not been married (unless custom or usage so permit) and that he/she has not completed the age of fifteen years (unless so permitted by custom or usage).
(ii) “court” means the city civil court or a district court within the local limits of whose jurisdiction the child to be adopted ordinarily resides”.
25. So far as the facts of the instant case are concerned, admittedly Master Lakshya is capable of being taken in adoption in terms of the provisions contained in Section 10 of the Act, 1956. Respondent no. 1 has also the capacity to take Master Lakshya in adoption in terms of provisions contained in Section 7 of the Act, 1956.
26. Taking into account the totality of the facts and circumstances of the case, there is no doubt in my mind that in case Master Lakshya is permitted to be given in adoption to respondent no. 1, it will secure adequate care and protection of the minor and will also provide best opportunity for his upbringing and future development. Respondent no. 1 is a highly educated individual having obtained an Engineering degree from Indian Institute of Technology, Roorkee and is also gainfully employed in Australia. He also does not have any child from his previous marriage. The petitioner after her marriage is also to live with respondent no. 1 and in these circumstances, there cannot be even an iota of doubt that interest of the minor, Master Lakshya shall be best served in the company of both, the petitioner as also respondent no. 1.
27. However, having observed as above, Section 9(2) of the Act, 1956 stares at the facts and circumstances of the instant case as a stumbling block.
28. At this juncture, it is appropriate to make mention of the judgments cited at the bar. The first case relied upon and read extensively by Ms. Bulbul Godiyal and Sri. Rohit Tripathi is ABC v. State (NCT of Delhi), (2015) 10 SCC 1. The said case related to guardianship of a minor claimed by an unwed mother. The appellant in the said case gave birth to her child and raised him without any assistance from or involvement of his biological father. The mother intending to make her son her nominee in all her savings and other insurance policies, took steps in this direction, but was informed that she must either declare the name of the father or get a guardianship/adoption certificate from the Court. Accordingly, she filed an application under Section 7 of Guardians and Wards Act, 1890 for getting herself declared as the sole guardian of her son. In the proceedings under Section 7 of Guardians and Wards Act, the Guardian Court directed her to reveal the name and whereabouts of the father, however, consequent to her refusal to do so, the guardian application was dismissed. The matter thereafter was taken up to High Court where appeal filed by her, too, was dismissed with the reason that her assertion that she is a single mother could only be decided after notice is issued to the biological father and that a natural father could have an interest in the welfare and custody of his child, even if there is no marriage and that no case can be decided in absence of a necessary party.
29. After dismissal of the appeal by the High Court, a Special Leave Petition was filed before the Hon'ble Supreme Court where Leave to Appeal was granted and ultimately Hon'ble Supreme Court allowed the appeal and appropriate directions were accordingly issued.
30. The issue in ABC (supra) was as to whether on presentation of an application seeking guardianship by the appellant notice to an “uninvolved father” of the child can be dispensed with when the father had not shown any concern for his offspring. It is relevant to state that section 11 of the Guardians and Wards Act requires issuance of notice on an application presented before the Court seeking guardianship of a child, to the parents of the minor if they are residing in any State to which the said Act extends. The applicant in the said case was unwed mother and had claimed guardianship of her child. She refused to reveal the name and whereabouts of the father consequent whereof the guardianship application was rejected by the Court and the appeal before the High Court was also dismissed.
35. Thus, though the subject matter in ABC (supra) related to guardianship claimed by an unwed mother, Hon'ble Supreme Court laid emphasis on the welfare of the minor child and interpreted section 11 of the Guardians and Wards Act in the facts in the case in a manner where issuance of notice under section 11 to the “absent father” was dispensed with. Hon'ble Supreme Court has observed that in a situation where father has not taken any interest whatsoever in his child, the views of such an “uninvolved father” are not essential to protect the interest of a child born out of wedlock and raised solely by his/her mother.
36. The second judgment presented for Court's perusal is the judgment dated 23.01.2015 passed by Hon'ble High Court of Judicature at Madras in Writ Petition No. 29105 of 2014, Mrs. B.S. Deepa v. Regional Passport Officer. In this case, mother of minor child had filed a writ petition seeking issuance of a writ of mandamus directing the passport authorities to issue a passport for her daughter, mentioning the name of adoptive father of the minor girl. In the said case also after annulment of the first marriage, the petitioner had remarried another individual. Out of the wedlock of the first marriage, a girl child was born and the petitioner gave her minor child in adoption to her second husband by a deed of adoption. The petitioner applied for a passport for her daughter, however, the said application was kept pending on account of the discrepancy between the name of the biological father and the name of the father indicated in the application form for passport. It is in these circumstances that the mother had approached the Madras High Court for issuing an appropriate direction to the passport authorities to issue the passport which was being denied on account of a circular issued by the department concerned to the effect that the name of step father or step mother cannot be written in the passport of the children.
37. Hon'ble Madras High Court in the said case referred to various judgments of different High Courts, including the judgment rendered by Hon'ble High Court of Delhi in the case of Teesta Chattoraj v. Union of India, decided on 30.03.2012, W.P. (C) No. 2888/2011. The judgment of Delhi High Court referred to by Madras High Court in B.S. Deepa (supra) was rendered by Hon'ble Single Judge wherein a minor girl represented by her mother and natural guardian had filed a writ petition challenging rejection of her prayer by the passport officer to include the name of her step father in the application for issuance of passport. Hon'ble Delhi Court after noticing section 9 of Hindu Adoption and Maintenance Act, 1956 observed that when both parents of a child are alive, one of them cannot give in adoption without consent of the other. Hon'ble High Court of Madras in B.S. Deepa (supra) has also considered the argument raised in Teesta Chattoraj (supra) that biological father should be deemed to have renounced the child, if not the world and that, therefore, his consent was not necessary. The said argument was, however, rejected by Hon'ble Single Judge of Delhi High Court. Hon'ble Madras High Court in B.S. Deepa (supra) has observed that if one goes strictly by law, the prayer made in the writ petition cannot be allowed, however, that will leave the future of a minor girl completely in dark.
38. It was further observed in B.S. Deepa (supra) that cases of such nature are going to increase in the coming days and hence the Government had failed to take note of the societal changes to modify the law suitably and thus, the Court is duty bound to issue appropriate directions without encroaching into the territory of the legislature. Hon'ble Madras High Court in the said case, thus, disposed of the writ petition by directing the Union of India to incorporate suitable provisions in the Passport Manual and incorporate suitable columns in the applications for the issue of passports to enable the parties to indicate either the names of the biological parents or the names of the adoptive parents or the names of the step parents or all of them. The Court further directed that the authority concerned shall issue passport to the minor child by indicating therein the name of her step father in the column reserved for filling up the name of the father.
39. As observed above, Hon'ble Single Judge of Delhi High Court in the case ofTeesta Chattoraj (supra) took strict view of the provisions of the Act, 1956 and did not agree with the submission that the biological father of the minor can be said to have renounced the world merely because he had not paid any attention to the well being of the child and that he had not taken any responsibility towards the child. Hon'ble Single Judge of Delhi High Court did not find the adoption deed valid as the said adoption lacked the consent of the biological father of the child.
40. It is worthwhile to notice that against the judgment of Hon'ble Single Judge of Delhi High Court in the case of Teesta Chattoraj (supra) an intra-court appeal was filed before a Division Bench of two Hon'ble Judges which was decided on 11.05.2012 (LPA No. 357/2012, Teesta Chattoraj v. Union of India, through her mother/natural guardian Smt. Rajeshwari Chattoraj v. Union of India). The Division Bench allowed the the said intra-court appeal and also the writ petition and directed the passport authorities to issue the passport to the child which would contain the name of her biological mother and that of the person as her father with whom her mother had remarried.
25. Though the Indian law does not, on renunciation of the child by either parent, vest a exclusive right in the other to give the child in adoption but such renunciation can be taken into consideration while determining whether the power to give in adoption has been delegated or to determine the consent to giving in adoption.
42. Hon'ble Delhi High Court, thus, observed that primary objective in the matters related to adoption is the welfare of the child and further that the Courts cannot be blind to the practicalities and realities of life.
44. Purport of section 9 of the Act, 1956 needs to be understand in the light of the judgments aforementioned. The proviso appended to in sub section 2 of section 9 of the Act, 1956 carves certain exceptions where right to give in adoption can be exercised by either of the parents without the consent of the other and the exceptions are that (i) one of the parents has completely and finally renounced the world (ii) has ceased to be a Hindu and (iii) has been declared to be a person of unsound mind by the competent court.
45. The phrase occurring in the said proviso is “renounced the world”. As to whether in the facts and circumstances which this case has presented can it be said that biological father of the child has renounced the world needs to be considered. Renunciation ordinarily means an act of abandonment or giving up or surrendering a claim, right or possession etc. It further means to refuse to recognise any longer and to decline further association or disclaim relationship or to withdraw (Oxford Concise Dictionary). However, even if a person withdraws himself from any person or he refuses to recognize a person or abandons his claim or right over a person or surrenders his claim or rights, that would, in my opinion, not amount to renunciation of the world for the reason that such renunciation shall be confined to withdrawal from an individual person only. Rest of the world still will be within the bounds and relationship of the person concerned. Accordingly, in my opinion, by construing the phrase “renounced the world”, occurring in the proviso appended to sub section 2 of section 9 of the Act, 1956, in this manner to mean consent of the other parent is not required, is not permissible merely because a biological father has forsaken his right or has not given any attention to the care and protection of the child. Consent of the other parent will not be required for a person giving a child in adoption only if the other parent renounces the world and not the child alone.
(5) where the parentage of the child is not known.
47. The expressions “guardian” has been defined in explanation (ii) appended to sub section 5 of section 9 of the Act, 1956 to mean that a person having the care of the person and properly of child or of both his person and property.
48. In the present case, there cannot be any denial of the fact that the petitioner i.e. the mother of Master Lakshya is his guardian. It can also not be denied that the respondent no. 3-Gaurav Gupta, the biological father of Master Lakshya has completely forsaken him and has given up all his rights including the right of visitation and has also categorically given the responsibility of bringing up the minor to the petitioner. In the proceedings before the Principal Judge, Family Court concerned under section 13-B of the Hindu Marriage Act, the affidavit filed by respondent no. 3, contents whereof have been quoted herein before, is self speaking and explanatory. Biological father of the child, in the present case has abandoned him; rather has renounced him and has not performed any of his duties, which he owes to the child. He has also given up all his rights including the right of visitation.
52. Accordingly, the writ petition is allowed and the impugned order dated 03.07.2017 passed by the learned court below, as is contained in annexure no. 1 to the writ petition, is hereby quashed and the application moved by the petitioner seeking leave to give Master Lakshya in adoption is allowed.
53. The petitioner, thus, will be permitted to give Master Lakshya in adoption to respondent no. 1 for which purpose giving and taking ceremony in adoption shall be performed and a deed of adoption shall also be executed and registered in terms of section 16 of the Act, 1956.
54. Before parting with the case, the Court shall be failing in its duty if it does not acknowledge the laudable assistance rendered by Ms. Bulbul Godiyal, Amicus, who has painstakingly assisted the Court. The Court puts on record, with appreciation, the assistance provided by her.
55. There will be no order as to costs.

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Application of Wilfred J. Samson, Ronald G. Williams and Craig E. Mar, filed July 30, 1985, Serial No. 760,636.
Application of James F. Crittenden and James J. Frassica, filed May 2, 1985, Serial No. 729,541.
This interference involves an application of Samson et al (junior party), assigned to Advanced Cardiovascular Systems, Inc. (ACS), and an application of Crittenden et al (senior party), assigned to C.R. Bard, Inc. (Bard).
In a dual dilatation catheter assembly for dilating a stenosis in a vessel, a first dilatation catheter, comprising a tubular element having a main lumen extending therethrough, a second tubular lumen extending longitudinally within the tubular element and forming an inflation lumen, a balloon carried by the tubular element at its distal end and having its interior in communication with the inflation lumen, a second dilatation catheter extending through the main lumen in the tubular element of the first dilatation catheter, a flexible elongate tubular element having a lumen extending therethrough, an inflatable balloon carried by the flexible tubular element of the second dilatation catheter and having its interior in communication with the lumen of the flexible tubular element of the second dilatation catheter, the balloon of the second dilatation catheter being elongate and having a diameter when inflated capable of dilating a stenosis, the balloon of the second dilatation catheter having a collapsed diameter which is less than the interior diameter of the lumen of the tubular element of the first dilatation catheter whereby the second dilatation catheter can be inserted and removed from the first dilatation catheter.
In a method for dilating stenoses in blood vessels having very small openings therein utilizing a dual dilatation catheter assembly comprised of a first balloon dilatation catheter having a lumen extending therethrough and a second balloon dilatation catheter of a size which is adapted to extend through the lumen in the first balloon dilatation catheter, introducing the first dilatation catheter into the vessel so that the distal extremity of the first balloon dilatation catheter is in the vicinity of the stenosis, introducing the second balloon dilatation catheter into the first balloon dilatation catheter so that the distal extremity extends beyond the distal extremity of the first balloon dilatation catheter, advancing the second balloon dilatation catheter through the stenosis so that the balloon of the second balloon dilatation catheter assembly is disposed in the stenosis, inflating the second balloon dilatation catheter to dilate the stenosis, removing the second dilation catheter from the stenosis, advancing the first dilatation catheter through the stenosis so that the balloon of the first balloon dilatation catheter is positioned in the stenosis, inflating the balloon of the first balloon dilatation catheter, and removing the first balloon dilation catheter from the stenosis, and removing the first and second balloon dilatation catheters from the vessel.
Both parties have submitted an evidentiary record under 37 CFR 1.653 and filed briefs for final hearing pursuant to 37 CFR 1.656.
Crittenden et al have filed a motion to suppress certain of the junior party's exhibits (Paper No. 75). Samson et al have opposed the motion (Paper No. 77). In the motion, Crittenden et al request that junior party Exhibits JPX 8-13, JPX 19-21 and all documents in group exhibit JPX 4 except pages 00551, 00590 and 00612 be denied consideration because Samson et al did not comply with the requirements of 37 CFR 1.673(b)(1) in that they did not provide a list of the documents to be relied upon. Crittenden et al state '[A]lthough junior party copied senior party with a substantial number of documents a few days before the first deposition, there was never any notice by junior party as to which of those documents were going to be relied on in any particular deposition. As a result, senior party did not have adequate opportunity to prepare for each of the testimony depositions taken by junior party and was prejudiced.' Crittenden et al further contend that these exhibits are inadmissible as hearsay to the extent that they are offered to prove the truth of their contents, and that JPX 8-13 were offered as part of a mass offering of exhibits which precluded the senior party from effectively dealing with the exhibits in the context of the testimony in which they were originally identified.
Under the provisions of 37 CFR 1.673(b)(1), a party is required to serve a list and copy of each document in the party's possession, custody, or control upon which the party intends to rely at any deposition. In our view, the rule does not require a party to state which documents are going to be relied upon at any given deposition but only that the documents served may be relied upon at one or more of the scheduled depositions. Thus, Samson et al are not precluded from relying upon the documents merely because they did not state in which deposition or depositions each document would be relied upon.
The senior party has not established in this case that they were prejudiced in their cross-examination of the junior party witnesses by the failure of the junior party to serve a list of the documents. The junior party points out that 37 CFR 1.673(c) states that a party shall not be entitled to rely at any deposition on a document not served as required by paragraph (b) of the section and says nothing about the list of the documents referred to in paragraph (b). Since there is no question that the documents under consideration were served, the junior party asserts that they were entitled to rely on them at the depositions which they took. Although the failure to serve a list of the documents along with the documents may under different circumstances be a ground for denying a party the right to rely on the documents served under 37 CFR 1.673(b)(1), we hold that under the facts of this case the failure to do so has not been shown to have prejudiced the senior party to the point where the junior party should be denied the right to rely on the documents under consideration.
*3 To the extent that the senior party timely and properly objected to the exhibits on the ground of hearsay, the exhibits will be admitted merely to show that the statement was made and not for the truth of its contents. With respect to JPX 4, Williams was the author of all but three pages thereof and so testified at JPR 369. Of the three pages not authored by Williams, the senior party does not object to page 00590. Thus, the only pages of JPX 4 properly subject to the stated objection are pages 00618 and 00620 authored by McGregor, who did not testify. Mar was the author of and testified with respect to JPX 8- 13 at JPR 90 through 100 and thus these exhibits are not inadmissible on the ground of hearsay as alleged by the senior party. JPX 19-21 are patents in which witness Samson and/or Williams is a named inventor. Thus, these exhibits are not subject to the stated hearsay objection, in our view. Although these exhibits may not have been properly objected to on the ground of hearsay, the above documents and others of record identified only by Mar, Williams and/or Samson are entitled to no weight since they have not been authenticated as to date or content by evidence independent of the inventors. Reese v. Hurst, 661 F.2d 1222, 211 USPQ 936 (CCPA 1981).
A party is entitled to object to an exhibit when it is identified or at any time during the examination of the witness with respect thereto when a ground for objection becomes apparent. Thus, the fact that the junior party offered JPX 8-13 as part of a mass offering of exhibits is not deemed to be an adequate ground for denying their admission into evidence.
The motion is denied except with respect to pages 00618 and 00620 of JPX 4, which are admitted merely to show that the statements therein were made.
Since this interference involves copending applications, the burden on Samson et al, the junior party, is to prove their case by a preponderance of the evidence. Morgan v. Hirsch, 728 F.2d 1449, 221 USPQ 193, 194 (Fed. Cir. 1984).
The named inventors in the junior party's application are Wilfred J. Samson, Ronald G. Williams and Craig E. Mar. There are 26 claims in the junior party's application. As noted above, claims 1 through 24 and 26 correspond to count 1 and claim 25 corresponds to count 2. On page 3, inter alia, of the junior party's main brief, the junior party says that the invention of counts 1 and 2 was conceived by Wilfred J. Samson at least as early as June 17, 1983. The evidence presented clearly shows that neither Williams nor Mar became involved with the invention until the fall of 1984. However, the junior party has not filed a motion under 37 CFR 1.634 to correct the inventorship of their application. Their preliminary statement alleges that the invention of counts 1 and 2 was made in the United States by Samson, Williams and Mar and no attempt has been made pursuant to 37 CFR 1.628 to correct the preliminary statement by alleging that Samson was the sole inventor of the invention in counts 1 and 2. Not only does the junior party's main brief allege that the invention was conceived by Samson alone in June 1973, the senior party on page 5 of their brief concede that it was. If Samson sole were the first inventor of the subject matter in issue, that subject matter would not be patentable to either party to this interference since Samson sole is not a party.
*4 Where a party is willing to concede a date of conception by another involved party, we would ordinarily accept that date as proven. However, here the senior party has merely conceded that someone not a party to the interference conceived the invention in June 1983, that concession is deemed to be of no significance as to the conception date of Samson et al. In this regard, we note that Mar testified that he was not aware of and did not become involved in the project that resulted in the invention until late November 1984 (JPR 31, 36, 115). Thus, the party Samson et al could not have been in possession of conception of the invention in counts 1 and 2 prior to late November 1984. In addition, since Williams and Mar are inventors, their testimony relating to conception and reduction to practice as well as Samson's must be corroborated by independent evidence. Coleman v. Dines, 754 F.2d 353, 224 USPQ 857, 862 (Fed. Cir. 1985); Davis v. Reddy, 620 F.2d 885, 205 USPQ 1065 (CCPA 1980); Reese v. Hurst, supra. The testimony of joint inventors does not establish independent corroboration. Anderson v. Pieper, 442 F.2d 982, 169 USPQ 788 (CCPA 1971); Medtronic, Inc. v. Daig Corp., 221 USPQ 595, 604 (D.C. Minn. 1983).
A review of Samson's testimony shows that contrary to the assertions in the junior party's brief, he merely had an idea or desired result in mind in June 1983 of a structure for performing the function of the invention in counts 1 and 2 but did not have a conception thereof because he did not know how to make a catheter small enough in diameter to pass through the lumen of the Simpson-Roberts dilatation catheter that was then being used by his assignee and he did not know how to make a balloon small enough to be attached to such a catheter and pass through said lumen (JPR 170, 172, 192, 221, 222, 226, 240, 247). He did not have a complete conception of the invention prior to the time that Williams and Mar became involved in the project. Williams and Mar were instrumental in developing the technology which made it possible to construct a catheter and balloon combination having dimensions sufficiently small to serve as the second dilatation catheter and balloon set forth in counts 1 and 2 (JPR 350-351, 364-365, 391-407, 98-119, 36, 45-47, 49-50) and thereby transform Samson's idea into a complete conception of the invention. This fact was apparently recognized when the Samson et al application was filed naming Williams and Mar as joint inventors. Since Mar did not become involved with the project until late November 1984, only activities which occurred after that time may be relied upon by Samson et al to establish joint conception and reduction to practice on their behalf. Perkins v. Engs, 118 F.2d 924, 49 USPQ 247, 251 (CCPA 1941); Willis v. Suppa v. Koehler, 209 USPQ 406, 410 (Bd.Pat.Int. 1980).
*5 Mar purportedly did some bench testing of prototypes meeting the terms of count 1 between January and April 1985. However, the only noninventor who is alleged to have witnessed any of the tests is one Dave Morrison, who did not testify (JPR 107-108). The only evidence independent of the inventors with respect to activities by Samson et al after November 1984, when Mar started working on the project, is the testimony of Dr. Stack of Duke University. A declaration by Stack was submitted as part of the Samson et al case-in-chief (JPR 1-6). Stack was also called as a deposition witness during the junior party's case-in-rebuttal (JPR 620-755). In fact he was the only witness to testify during the Samson et al rebuttal testimony period. The purpose of a rubuttal testimony period is supposed to be to permit a party to obtain testimony to rebut the opponent's case-in-chief. III Rivise and Caesar, Interference Law and Practice, Section 381 (Michie Co. 1947). However, Samson et al rely primarily on Stack's rebuttal testimony to bolster their own case-in-chief. Crittenden et al have not objected to and, in fact, through cross-examination elicited much of Stack's rebuttal testimony. Accordingly, we do not treat the rebuttal testimony any differently than the testimony submitted by Samson et al during their case-in-chief.
Between March 25, 1985 and April 4, 1985, Stack received two prototype .018 "' profile catheters from Williams and tested one of them on a dog on April 4, 1985 (JPR 1-6). The catheter was not tested on a human prior to the July 30, 1985 filing date of the Samson et al application or even up to the time of Stack's deposition in March 1988 (JPR 694-699). Stack inserted the .018 "' catheter into the dog's distal circumflex artery and inflated and deflated it a few times and moved the .018 catheter back and forth with respect to a larger dilatation cathether (JPR 5) during the April 4, 1985 test, but he did not and could not use it for its intended purpose of dilating a stenosis in the vessel since the vessel did not contain a stenosis (JPR 642). Thus, the steps of count 2 were not carried out with the dog model and the device of count 1 was not tested under actual use conditions or under conditions that would simulate actual use conditions as required for an actual reduction to practice. Newkirk v. Lulejian, 825 F.2d 1581, 3 USPQ2d 1793, 1794 (Fed. Cir. 1987). Stack's opinion to the effect that device would work, as intended, if used on humans cannot take the place of evidence in the record (JPR 668). Paine v. Inoue, 195 USPQ 598 (Bd.Pat.Int. 1976). Moreover, Drs. Faxon and Spears who, like Stack, have and considerable experience in the field of angioplasty, which involves dilatation of arterial stenoses with a balloon catheter, both testified to the effect that dogs do not develop stenoses in their vessels and that one could not determine whether the invention in issue would work successfully in humans based on the test performed by Stack on a dog (SPR 198, 252). Faxon points out that a critical part of being able to dilate a lesion is getting the balloon through the stenosis (SPR 210). In the case of the dog vessel, this problem does not arise since the vessel has no stenosis. Coinventors Mar and Samson were also of the view that human clinical tests were required to show that the invention would work for its intended purpose (JPR 127-128, 175-176). After carefully considering all of the evidence of record, we hold that Samson et al have failed to establish that they reduced the invention to practice prior to the filing date of the senior party. Samson et al did not raise the question of conception plus diligence in their brief (main brief, page 1) and thus we need for determine whether the senior party conceived the invention in late March or early April 1984 as alleged in the senior party's brief. Accordingly, Crittenden et at are entitled to prevail on the question of priority.
*6 Crittenden et al contend that the evidence submitted by Samson et al in support of their case for priority shows that they concealed the best mode known to them for practicing the invention when they filed their application. Crittenden et al point out that the Samson et al disclosure merely states on pages 5 and 6 that the part 41 comprising the balloon 43 for the second dilatation catheter 'consists of a plastic tube of a suitable type such as polyethylene of a length ranging from 20 to 30 centimeters.' On pages 12 and 13 of their brief, Crittenden et al refer to testimony by Mar and Frisbie to the effect that a special size tubing (JPR 116-119) is needed and that it must be irradiated (JPR 33-36, 145) in a process that was developed inhouse by ACS in order to properly control the diameter to which the tubing can be blown into a balloon (JPR 33-34, 547-548, 557-562, 614, JPX 4, pages 00551 and 00590). They also note Samson testified that it was a policy of ACS to keep processes secret when filing a patent application (JPR 221-225) and that Williams requested that information concerning curing the adhesive 47 (Fig. 4) with ultraviolet light and information regarding heat treating the wire 49 (Fig. 4) be removed from the application prior to filing (JPR 366-367, 397-407). After reviewing the cited evidence, it is clear to us that Samson et al concealed their best mode with respect to all three of the above cited items, i.e., radiation of the tubing used for the balloon 43, heat treating the guide wire 49 and curing the adhesive 47. Accordingly, we hold that claims 1 to 26 of the Samson et al application corresponding to the counts in issue are unpatentable to Samson et al under 35 USC 112, first paragraph. Spectra-Physics, Inc. v. Coherent, Inc., 827 F.2d 1524, 3 USPQ2d 1737, 1745 (Fed. Cir. 1987); Dana Corp. v. IPC Limited Partnership, 860 F.2d 415, 8 USPQ2d 1692, 1695 (Fed. Cir. 1988).
The senior party has filed a post hearing motion (Paper No. 81) to add U.S. Patent No. 4,793,350 assigned to ACS and a corresponding European patent application to their record. The additional evidence is said to further show that the junior party did not reduce to practice the invention in issue prior to their July 30, 1985 filing date. The motion could be dismissed as moot in view of the fact that we have held that Samson et al have failed to prove their alleged actual reduction to practice. However, we agree with Samson et al that the motion should be denied for the reasons stated in the opposition (Paper No. 82).
Judgment as to the subject matter in counts 1 and 2, all of the counts in issue, is hereby awarded to Crittenden et al, the senior party. Based on the record before us, James F. Crittenden and James J. Frassica are entitled to a patent containing claims 1 to 26, 48 and 49 corresponding to the counts in issue. Wilfred J. Samson, Ronald G. Williams and Craig E. Mar, the junior party, are not entitled to a patent containing claims 1 to 26 corresponding to the counts in issue.

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