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The New GMO Law: Is It Constitutional?
The GMO labeling debate has gone national! Those of us that live out west have been hearing these rumblings for years, but since the Congress has taken up the issue, now we may debate it as a country. It seems no one has a lukewarm opinion of GMOs; people either hate them passionately, or hate the people who hate them1)with an equal amount of passion.
There are currently three states2)Vermont, Connecticut and Maine that have passed laws requiring food companies to note on their label if the food product being sold was produced with a GMO. However, there are 85 more GMO related bills in 29 additional states addressing GMO labeling3)Source. The anti-GMO folks consistently cite poll numbers that say 90% of the public would prefer that food made with a GMO be labeled as such. We cannot count on our friends in the House of Representatives for much, but when a super majority of the populace agree on a matter, they most often will take a strong stand on that issue.
The opposite seems to be occurring with the GMO legislation. Last week, the House passed the Safe and Accurate Food Labeling Act of 20154)the latest in ironic bill names from the House, the details of which we will go into in a moment. For now, know that the environmentalist crowd is quite irritated with the bill. Before we take sides, point fingers and do a little name-calling, we will need a little background on what a GMO is and why everyone is so upset.
What is a GMO and is it necessary to label them in our food?
You may be interested to know that the majority of processed food7)think food you buy in a box is also on this list because most corn syrup is made with GMO corn. Also, the majority of animals that we eat (cows, pigs, chickens) are fed with GMO produce. With that in mind, know that since GMO produce have been on the market since the 1980s. In turn, we all are one big case study of the effects of GMO produce on humans.
I do not have a strong opinion on this issue, one way or the other8)that should sufficiently upset everyone so please do not take the above statement as a GMO endorsement. The Europeans have done hundreds of tests on GMO products for years now and have yet to come back with any conclusive evidence that GMO food products are harmful for humans to consume. This does not mean that GMO foods are not harmful, only that there is no scientific evidence to suggest such. Everyone offended now? Good. Let us take a glance at the bill that passed the House.
How does the Safe and Accurate Food Labeling Act of 2015 affect GMO labeling?
(B)the disclosure of such material difference is necessary to protect public health and safety or to prevent the label or labeling of the food so produced from being false or misleading in any particular.
As I am sure you can tell, “material difference” is the key term here. Because American scientists have not found a difference in taste, nutritional value, or form of GMO crops, the federal government considers there to be no “material difference” between organic and GMO bread produce. Until science discovers9)if there is one a “material difference,” Big Food10)tm pending? will not be required to label their GMO grown products.
Regardless of whether regulations have been promulgated under section 112, beginning on the date of the enactment of this Act, no State or political subdivision of a State may directly or indirectly establish under any authority or continue in effect as to any food in interstate commerce any requirement with respect to the sale or offering for sale in interstate commerce of a genetically engineered plant for use or application in food that is not identical to the requirement of section 461 of the Plant Protection Act (as added by section 111 of this Act).
This language, as you will see below, explicitly states how federal and state laws interplay. If the Congress passes a law about a subject matter, then the states are not permitted to pass laws that regulate the legal area in a different manner. This is the Supremacy Clause (of the Constitution) in action.
If you have come across the Safe and Accurate Food Labeling Act of 2015 in a press account, this is the section of the law folks are most upset about.11)Not that I have a dog in the fight but the political party sponsoring this bill is the same one that has been arguing for a few years now that Obamacare violates states’ rights. Some folks on the other side of the aisle are perturbed. I say if you want logically consistency, politics is not the place to look The text above would make it illegal for the three states that have passed GMO labeling legislation to put it in effect and prevent any other states from taking similar action. Folks on both sides12)once they are finished with the ad hominems think the opposition is violating the Constitution. We will have to dig deeper to find out for sure.
Each side in this debate feels the other is violating the constitution. First, our libertarian/state’s rights friends claim that the federal government does not have the constitutional authority to dictate to a state government if it is permitted to require a GMO label on food sold in their state.13)Source.
I will avoid a summary of the history of Commerce Clause interpretations15)for the sake of time, space, and your sanity and instead excerpt a summary from Justice Stevens from Gonzalez v. Raich:16)In this case, the federal government raided a Californian’s medical marijuana supply. The Respondent, Mr. Raich [You may remember Mr. Gonzalez as President Bush’s Attorney General] claimed that the federal government had no legal authority prohibit his growth or use of medical marijuana that took place exclusively in the state of California. The Court disagreed with Mr. Raich.
In assessing the validity of congressional regulation, none of our Commerce Clause cases can be viewed in isolation. As charted in considerable detail in United States v. Lopez, our understanding of the reach of the Commerce Clause, as well as Congress’ assertion of authority thereunder, has evolved over time. The Commerce Clause emerged as the Framers’ response to the central problem giving rise to the Constitution itself: the absence of any federal commerce power under the Articles of Confederation. For the first century of our history, the primary use of the Clause was to preclude the kind of discriminatory state legislation that had once been permissible. Then, in response to rapid industrial development and an increasingly interdependent national economy, Congress “ushered in a new era of federal regulation under the commerce power,” beginning with the enactment of the Interstate Commerce Act in 1887, 24 Stat. 379, and the Sherman Antitrust Act in 1890, 26 Stat. 209, as amended, 15 U. S. C. §2 et seq.
Our case law firmly establishes Congress’ power to regulate purely local activities that are part of an economic “class of activities” that have a substantial effect on interstate commerce. See, e.g., Perez, 402 U. S., at 151; Wickard v. Filburn, 317 U. S. 111, 128–129 (1942). As we stated in Wickard, “even if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.”17) 545 U.S. 1, 12-13 (emphasis added).
If you are not familiar with Wickard18)cited in the paragraph above, you would not believe how angry a dispute of selling wheat would make people (seriously, really angry). As much as my libertarian friends would like to think the Safe and Accurate Food Labeling Act of 2015 is unconstitutional, it is difficult to make a distinction from Wickard or Raich because, even though, states like Vermont19)In the 19th/early 20th century, the Commerce Clause cases were concerned with states protecting local industries and arbitrarily punishing competitive industries from foreign states[protectionism is as old as any type of politics]. Interestingly, the Vermont law exempts cheese and beer from the food products requiring GMO labeling. are only regulating commerce within their own borders, their regulations will have a “substantial effect on interstate commerce,” and therefore, the regulation from a federal level is likely constitutional.20)Some critics of commerce clause jurisprudence find that contemporary courts decisions to be blatantly results-oriented, meaning that the courts will use the commerce clause to allow the federal government to regulate industries they find displeasing (marijuana, small business) but not for issues where they are sympathetic to the users (guns, big business), for instance see United States v. Alfonso D. Lopez, Jr., 514 U.S. 549 (1995), where the court struck down a federal law banning guns near schools. I would defend my justice friends with more passion if the distinctions drawn made more sense. I find it unlikely, if the Safe and Accurate Food Labeling Act of 2015 is signed into law,21)also unlikely, even if it gets through the Senate that a court would declare that the federal government overreached.
Act 120 mandates a GE26)genetically engineered disclosure that is clearly in addition to and different than the marking, labeling, and packaging requirements imposed under the FMIA and PPIA. Act 120’s GE disclosure requirement is therefore expressly preempted for products subject to those federal laws.27)Grocery Manufacturers Association et al v. Sorrell et al, No. 5:2014cv00117 – Document 95 [D. Vt. 2015] p. 42(emphasis added)28)Mr. Dillard has more on the Vermont opinion.
Although Judge Reiss29)author of the Vermont opinion is not the final authority of what is and is not constitutional, her contention that Act 120 may violate the Supremacy Clause is persuasive. Granted, on its face, this seems confusing. States are permitted to regulate cigarette smoking, both in terms of where and how much it costs, and alcohol (with respect to the liquor content of certain beverages, for example). Why would states not be permitted to regulate if GMOs are permitted in her citizen’s food? Any legislative arena that the federal government has abdicated (by lack of legislative action) or is forbidden to regulate (by the Constitution) is in the purview of the states. The FMIA and PPIA (with respect to meat) and the new bill would assign the arena of GMO labeling exclusively to the federal government. Dislike this as an anti-GMO person/states’ rights individual? Time to call your Congress-person.
How will we address our GMO concerns in the long run?
First, we need to have a better understanding of why so many folks want GMO labels on our food. Unfortunately for them, but Monsanto has been straw-manned into the evil corporate entity that wants to overtake our food supply30)not that the other GMO companies have much better reputations. Many of us are familiar with the rumors of what Monsanto produced during the Vietnam War31)rhymes with cagent dorange, and a lot of folks, justly or unjustly, are uncomfortable with the same company selling us food. Maybe one or more of these companies could use a Blackwater-esq rebranding?
Often cited is the fact that more than 60 countries have banned GMO produce. If a GMO is not harmful, than why the worldwide ban? A little conjecture, given that I am not privy to internal politics of any other countries (or even ours): Perhaps the ban is political. The majority of the companies that sell GMO seeds are American, and American corporations do not have the best reputation abroad32)rightly or wrongly. Perhaps all these countries do not want to be dependent on American corporations for their food supply. Although state autonomy is a valid motive, it is distinct from GMO food being dangerous.
In fact, the American Association for the Advancement of Science ends their paper discussing the research of the health effects of GMO foods with the statement “Legally mandating such a label can only serve to mislead and falsely alarm consumers.”33)Source I am not sure I buy that claim, but I will take them at their word.
Currently, there are two paradigms of agriculture being widely promoted: local and organic systems versus globalized and industrialized agriculture. Each has fervent followers and critics. Genuine discourse has broken down: You’re either with Michael Pollan or you’re with Monsanto. But neither of these paradigms, standing alone, can fully meet our needs.
Organic agriculture teaches us important lessons about soils, nutrients and pest management. And local agriculture connects people back to their food system. Unfortunately, certified organic food provides less than 1 percent of the world’s calories, mostly to the wealthy. It is hard to imagine organic farming scaling up to feed 9 billion.
10, 22. ↑ tm pending?
16. ↑ In this case, the federal government raided a Californian’s medical marijuana supply. The Respondent, Mr. Raich [You may remember Mr. Gonzalez as President Bush’s Attorney General] claimed that the federal government had no legal authority prohibit his growth or use of medical marijuana that took place exclusively in the state of California. The Court disagreed with Mr. Raich.
19. ↑ In the 19th/early 20th century, the Commerce Clause cases were concerned with states protecting local industries and arbitrarily punishing competitive industries from foreign states[protectionism is as old as any type of politics]. Interestingly, the Vermont law exempts cheese and beer from the food products requiring GMO labeling.
Pardon my pontificating by wading into a politically charged subject, but the issue has really gotten under my skin and I cannot hold it in any longer. And, yes, I am going to take a side in this debate and you may not like it. I am talking, of course, about the hubbub about the Confederate battle flag (or whatever you prefer to call it). Here is my take on the issue: free speech has nothing to do with it.1)What? You thought I was going to pick a side on what to actually do about the flag? The author does have an opinion on that question, but reserves the right to blog about that question at another time. Feel free to hit me up for lunch if you want to know my opinion privately.
Among other responses from defenders of the flag, the response that drives me crazy and makes me want to write a blog post about it is this: “But, what about my free speech rights? How can Wal-Mart take away my right to wear the flag? That’s unconstitutional!” AAAGH!! No, this is not about your free speech rights. I am not going to tell you5)in this blog post whether you are right or wrong to love the flag and want to fly it or wear it loud and proud, but I am going to tell you6)with peace and love that your free speech rights are not affected.
The First Amendment to the Constitution provides that “Congress shall make no law … abridging the freedom of speech, or of the press ….” Simply stated, the United States Supreme Court has consistently (and always) upheld the principle that governments (city, state, national) and their various departments may not codify or enforce laws that tell you what you may or may not say. Most importantly, in order for a restriction on speech to be unconstitutional, the restriction must have been imposed by the government, not by a private citizen or business7)Univision also did not violate the First Amendment by breaking up with Donald Trump.
Now let us look at the examples noted above. When Wal-Mart, Amazon, Sears, and eBay made a business decision that they will not sell merchandise bearing images of the flag, this was NOT an unconstitutional restriction on anyone’s free speech rights because their decision was not compelled by a governmental action. In other words, no governmental entity forced these private companies to make this decision. However, if the government passed a law that told these companies that they are prohibited from selling merchandise with images of the flag, that WOULD be an unconstitutional restriction of free speech. To my knowledge, no governmental entity anywhere has yet passed a law telling private companies that they cannot sell such merchandise. These companies have simply made a business decision that they will not engage in certain speech. You, of course, still have every right to own, fly, and/or wear any item you want that shows images of the Confederate flag and no governmental entity has yet told you that you are legally prohibited from doing so. However, you do not have a constitutional right to require WalMart or eBay to sell it to you.
1. ↑ What? You thought I was going to pick a side on what to actually do about the flag? The author does have an opinion on that question, but reserves the right to blog about that question at another time. Feel free to hit me up for lunch if you want to know my opinion privately.
We are in the heart of political primary season, meaning we have reached that time, as we do every four years, where politicians play rock songs during their campaign events, followed by musicians becoming irritated and lashing out at said politicians in the press.
Who is in the right here? Are the musicians being overly sensitive or are the politicians violating copyright law? We will have to unpack a few laws to find out. We will have to start at the primary point of reference for all good legal discussions, the U.S. Constitution.
Supreme huh? The courts interpret Article VI, Section 2, to mean that if the federal constitution expressly grants authority to the federal government to regulate a subject matter, than the states are preempted and may not pass laws regarding that subject area. If the constitution is silent regarding an issue, then the authority to regulate the matter belongs to the states.
Courts interpret Article I, Section 8 to mean that the federal government has exclusive rights to regulate copyright laws2)copyright laws are different than trademarks, which states are permitted to regulate so long as the state laws are not contrary to federal trademark laws.
What are the federal copyright laws?
As you can see, Section 106 grants an exclusive copyright to the author of a musical work to distribute the work as s/he sees fit. Political campaigns often cite Section 107 as an excuse when accused of using a song at a rally without consent of the artist. To see if their excuse holds water, we will need to review each of the four elements in more detail.
This is an inquiry into how the copyrighted music is being used. Courts will often look to see if there is a transformative quality in the art’s application. By transformative, I mean the use of the work that has a copyright changes or updates how the art was originally published. Additionally, courts will look to see if the copyrighted art is being used for profit or not-for profit. Although most candidates go heavily into debt on the trail, they are using the music for personal gain (power if not money), so this factor will not help.
Neither have I seen a campaign transform any copyrighted music for their own devises, so this factor will not assist them.
Is the copyrighted work creative or factual? Use of factual material is given more leeway. Courts will also look to see if the work is published or not; they will be more stringent with unpublished works as creators have the right to decide how and if to release their work product.
Courts will look to see how much of a song is being played. Playing less than 30 seconds is more likely to be fair use, than playing the entire track.
Yet another strike against the campaigns, unless the candidates want to start running to the stage before a speech.
Will the use of the song hurt the market value of the art? This is where the campaigns have the most trouble. There are few forums that are less ‘Rock and Roll’ than a political rally. If a musician cultivates a counter-culture image, then has a straight-laced3)square politician play his or her song, folks might think that the musician is endorsing this politician. If consumers think the artists is lame, that will hurt sales.
Although it is possible for a campaign to use a song without issue under the ‘fair use’ doctrine, it is unlikely.
Will a Blanket License help protect them from copyright infringement?
For those music industry insiders, you already know of big corporations that license music on a mass scale. For the rest of us, a small primer. Most artists belong to one of big companies that license use of their artists’ music on a mass scale4)ASCAP and BMI are the two largest companies. They offer what is called a “public performance license” which allows venues to play the music of the company’s artists without copyright infringement. Many hotels, convention centers, and restaurants purchase one of these blanket licenses that permits them to play any of the company’s artists.
So you would think that many if a campaign held rallies at the large establishments as discussed, they would be protected from copyright infringement actions by the venues blanket license. However, in the contracts for the license, the music licensing companies explicitly prohibit the application of the license for conventions or rallies, meaning the music may be played in the hallways/elevators/common areas but not to heighten the experience of an event.
Additionally, many, if not all rallies, are posted online or played on television. These public performance licenses do not cover electronic dissemination, and the campaigns will need to get permission from the publisher. This means if a campaign posts a video of a rally with the candidate coming to the stage to the sounds of the hottest rock act going, they are in violation of the copyright laws.
In turn, campaigns will often buy their own blanket license so that they may play music no matter where a rally is held5)who is to say if your local Pizza Ranch is paid up on their music public performance license. Even this may not be sufficient, as you can see above.
This is similar to the fourth factor of the fair use doctrine. If a campaign was to use a song by an artist that did not like or endorse the politics of the campaign, subsection (A) would likely come into effect. That is why you often will see campaigns claim that they have a blanket license to use the music of the objecting artist, but will cease playing it at future rallies.
If a campaign does not want to write original music, the course of action7)as I am sure you guessed by now is to ask permission of the artist.
What have we learned about copyright law in relation to music and politics?
But given that musicians have been making the same complaints publicly every four years since the mid-eighties, is it safe to assume the politicians now know better and will ask permission of the artists to avoid public shaming?
8)Is it worse to literally or figuratively hate someone?
Sounds like just the kind of person you want to represent your mainstream candidacy for the Presidency! Of course, many media outlets picked up on Mr. Young’s comments, bringing unnecessary negative attention to the campaign. I am hard pressed to think of examples when asking permission would lead to a less desirable result. Here is more reading on music and political rallies10)my favorite section of the press pieces is in the Daily Beast article where Rep. Paul Ryan gets into a public spat with Tom Morello of Rage Against the Machine, oh the cognitive dissonance! That will be hard to top this election cycle. My hope is that a politician adopts Radiohead’s “Electioneering” as a campaign theme.
8. ↑ Is it worse to literally or figuratively hate someone?
What Woman Should be on the New $10 Bill?
Of all these amazing women, Rep. Jeannette Rankin is probably going to be my number one pick. Not only was she the first woman to serve in the U.S. House of Representatives during a time when permitting women in the world of Congress (or any sort of power for that matter) was still tenuous, but she took the challenge in stride. This position was not given to her on a silver platter, and she did not quit in the face of adversity. In fact, she succeeded with very little help (from her brother). I think that most U.S. Citizens could learn a thing or two just by simply hearing her story. What better teaching tool than putting her smack in the middle of a $10 bill?
The chief’s two wives (including Sarah’s mother) and infant son were killed. Although Sarah’s sister Mary escaped from camp, she died later that winter due to the severe conditions. Her younger sister Elma was out of the area, as she had been adopted by a French family in Marysville, California.
This means her whole family was killed as well, except for her sister who was adopted by a settler family. This woman made huge changes for Native Americans even when her own people were no longer around to support her. Strength, resilience, and and tenacity… truly a hero.
Harriet Tubman risked her life as a “conductor” in the Underground Railroad to help free enslaved folks even after she reached freedom. Less known, she was a spy for the Union during the Civil War, providing key information from her scouts about the Confederate positions. She was the first women in American history to lead a military expedition with several hundred men to free slaves, saving 750 men, women, children and babies. Tubman helped the Union army because she wanted freedom for people forced into slavery at the risk of being hanged herself. American abolitionist, humanitarian, and during the American Civil War, a Union spy. Need I say more? This women rocks.
1. ↑ Why not the $100 by the way?

matches: v. v. §2 v. v. v.


text:
The case concerned criminal proceedings initiated against Hans Åkerberg Fransson for tax fraud. Mr Åkerberg Fransson, a fisherman active on the Kalix river, allegedly provided false information concerning his income tax and value added tax (harmonised by directive 2006/112/EC), resulting in a loss of revenue for the Swedish exchequer. He received tax fines for the years 2004 and 2005 in 2007. Subsequently, in 2009, criminal proceedings were initiated against Mr Åkerberg Fransson for the same facts. In that case, which lead to the preliminary reference, Mr Åkerberg Fransson submitted that these criminal charges should be dismissed on the ground that he had already been punished for those acts and that these criminal proceedings were therefore in violation of the ne bis in idem principle laid down in article 50 of the Charter.
The contentious issue was whether the Charter applied in such a case. On the one hand, it was clear that Sweden needed to take all the necessary measures to collect value added tax as required by directive 2006/112/EC. On the other hand, the national legislation which provided for tax penalties and criminal proceedings was not a transposition of the directive and therefore the situation might fall within the ‘scope’ of EU law but Member States were not ‘implementing’ EU law. The question was thus whether national rules for administrative and criminal penalties applicable to infringements of VAT legislation (that VAT legislation being an implementation of directive 2006/112/EC) can be considered implementation of Union law.
As I mentioned in my previous post, it was not clear whether the Charter (which entered into force with the Treaty of Lisbon) had lead to an alteration of the scope of the EU fundamental rights standard. The source of this discussion is Article 51 of the Charter, which was the object of much disagreement among the drafters of the Charter. Its wording reflects the desire of Member States to limit the scope of the Charter. Article 51 states that the Charter only applies to acts of the Member States ‘when they are implementing Union law’. It thus leaves out the broader category of ‘the scope of EU law’. However, the Explanatory Note on Article 51 seems to contradict the idea that the Charter would lead to a restriction of the previous case-law of the Court on fundamental rights. In any case, what actually constitutes “implementation” and what does not is also not clear.
In my view, the competence of the Union to assume responsibility for guaranteeing the fundamental rights vis-à-vis the exercise of public authority by the Member States when they are implementing Union law must be explained by reference to a specific interest of the Union in ensuring that that exercise of public authority accords with the interpretation of the fundamental rights by the Union. The mere fact that such an exercise of public authority has its ultimate origin in Union law is not of itself sufficient for a finding that there is a situation involving the implementation of Union law.
In short, it appears to be risky to assert that, by means of a provision such as Article 273 of Directive 2006/112, the legislature was anticipating the transfer of all the constitutional guarantees governing the exercise of the Member States’ power to impose penalties – including the collection of VAT – from the Member States to the Union.
In today’s judgment, however, to the CJEU simply applied the Charter in a straightforward manner, dismissing the arguments advanced by five Member States and (surprisingly) the Commission that the CJEU did not have jurisdiction since the Charter did not apply in this case. Rather unusually, the CJEU went the extra mile in its reasoning, referring to another Grand Chamber judgment of today Melloni (we will have a post on that shortly too).
First, the CJEU firmly took sides in the debate on whether the Charter has a different scope of application than the case law based fundamental rights regime. It held that article 51 (1) of the Charter ‘confirms the Court’s case-law relating to the extent to which actions of the Member States must comply with the requirements flowing from the fundamental rights guaranteed in the legal order of the European Union’ (para. 18). The CJEU continued that ‘in essence’ ‘the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by European Union law, but not outside such situations. In this respect the Court has already observed that it has no power to examine the compatibility with the Charter of national legislation lying outside the scope of European Union law. On the other hand, if such legislation falls within the scope of European Union law, the Court, when requested to give a preliminary ruling, must provide all the guidance as to interpretation needed in order for the national court to determine whether that legislation is compatible with the fundamental rights the observance of which the Court ensures’ (para. 19).
20 That definition of the field of application of the fundamental rights of the European Union is borne out by the explanations relating to Article 51 of the Charter, which, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, have to be taken into consideration for the purpose of interpreting it (see, to this effect, Case C-279/09 DEB  ECR I‑13849, paragraph 32). According to those explanations, ‘the requirement to respect fundamental rights defined in the context of the Union is only binding on the Member States when they act in the scope of Union law’.
21 Since the fundamental rights guaranteed by the Charter must therefore be complied with where national legislation falls within the scope of European Union law, situations cannot exist which are covered in that way by European Union law without those fundamental rights being applicable. The applicability of European Union law entails applicability of the fundamental rights guaranteed by the Charter.
To put it succinctly: the Court squarely equated “implementation” with “scope of application”.
Applying these considerations to the case at hand, the CJEU concluded that Sweden had to observe the Charter when imposing tax fines and criminal penalties when giving effect to the VAT directive. It held that it follows from the provisions of the directive that ‘every Member State is under an obligation to take all legislative and administrative measures appropriate for ensuring collection of all the VAT due on its territory and for preventing evasion’ para. 25). Additionally, the CJEU referred to article 325 TFEU which ‘obliges the Member States to counter illegal activities affecting the financial interests of the European Union through effective deterrent measures and, in particular, obliges them to take the same measures to counter fraud affecting the financial interests of the European Union as they take to counter fraud affecting their own interests […].Given that the European Union’s own resources include, as provided in Article 2(1) of Council Decision 2007/436/EC, Euratom of 7 June 2007 on the system of the European Communities’ own resources (OJ 2007 L 163, p. 17), revenue from application of a uniform rate to the harmonised VAT assessment bases determined according to European Union rules, there is thus a direct link between the collection of VAT revenue in compliance with the European Union law applicable and the availability to the European Union budget of the corresponding VAT resources, since any lacuna in the collection of the first potentially causes a reduction in the second’ (para. 26).
28 The fact that the national legislation upon which those tax penalties and criminal proceedings are founded has not been adopted to transpose Directive 2006/112 cannot call that conclusion into question, since its application is designed to penalise an infringement of that directive and is therefore intended to implement the obligation imposed on the Member States by the Treaty to impose effective penalties for conduct prejudicial to the financial interests of the European Union.
29 That said, where a court of a Member State is called upon to review whether fundamental rights are complied with by a national provision or measure which, in a situation where action of the Member States is not entirely determined by European Union law, implements the latter for the purposes of Article 51(1) of the Charter, national authorities and courts remain free to apply national standards of protection of fundamental rights, provided that the level of protection provided for by the Charter, as interpreted by the Court, and the primacy, unity and effectiveness of European Union law are not thereby compromised (see, in relation to the latter aspect, Case C-399/11 Melloni  ECR I-0000, paragraph 60).
This last point is an interesting one, and our blog will cover it more extensively in the post on Melloni. As regards to the scope of application of the Charter, the approach of the CJEU is to be welcomed in my opinion. The CJEU rightfully avoids a lacuna in the system of fundamental rights protection, and also avoids legal difficulties as to how a different scope of the Charter would be reconciled with older case law on fundamental rights protection. I don’t see the difficulties the Advocate General discussed in his musings on implementation of EU law. If Member States are enforcing substantive EU norms through administrative and criminal penalties, the CJEU clearly should be able to oversee uniform application of EU law, especially considering the fact that article 2 TEU states that the ‘Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities’. Simply passing the buck to Member States is not part of that.
For those of you who encountered issues with commenting on the blog: there was a minor software glitch which has hopefully been resolved! I apologize for the inconvenience.
Soon I hope. It will not be written by me, so I can’t tell when exactly.
Thx for an interesting post! Hope someone of you will write a post about the Melloni case soon. Looking forward to it!
Also, we will hopefully have a post soon on the final judgement by the Spanish Supreme Court in Melloni.

matches: CJEU CJEU CJEU CJEU CJEU CJEU CJEU CJEU CJEU CJEU


text:
The Complainants are Caesars World, Inc. (CWI) and Park Place Entertainment Corporation ("Park Place"), Las Vegas, Nevada, United States of America represented by Pitney Hardin Kipp & Szuch, United States of America.
The Respondent is Japan Nippon of United States of America.
The contested domain names are <caesarsentertain.com> and <caesarsentertainments.com>.
Both of the contested domain names are registered with Dotster.com ("Registrar").
The Complaint was brought pursuant to the Uniform Domain Name Dispute Resolution Policy (the "Policy"), which was adopted by the Internet Corporation for Assigned Names and Numbers (ICANN) on August 26, 1999, and approved on October 24, 1999, and in accordance with the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") as approved on October 24, 1999, and by the World Intellectual Property Organization Supplemental Rules for Uniform Domain Name Dispute Resolution Policy in effect as of December 1, 1999 (the "Supplemental Rules").
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") in e-mail form on August 5, 2003, and in hard-copy form on August 7, 2003, along with Annexes A-H and the appropriate payment.
The Complainants� attorney stated that, on August 5, 2003, he served a copy of the Complaint itself together with a copy of the cover sheet, on the Respondent and the Registrar by e-mail, and also on the Registrar by postal express mail. The attorney stated that he was unable to serve a copy of the complaint to the Respondent by postal mail inasmuch as the WhoIs database provided no mailing address for the Respondent.
Pursuant to paragraph 4(d) of the Policy, the Complainants selected the Center as the ICANN approved administrative dispute resolution service provider to administer this proceeding. Through the Complaint, the Complainants requested a single person panel.
After receiving the original Complaint, the Center, in accordance with paragraph 5 of the Supplemental Rules, determined whether the Complaint fully complied with the formal requirements of the Rules and the Supplemental Rules. In that regard, on August 6, 2003, the Center requested confirmation from the Registrar of information set forth in the Complaint relative to the contested domain names; specifically, contact and registrant information for the domain names, as well as whether the Registrar received a copy of the Complaint from the Complainants. The Center also requested the Registrar to specify: (a) whether the Policy applies to the contested domain names, (b) whether the registrant has submitted, in its registration agreement, to the jurisdiction at the location of the principal office of the registrar for court adjudication of disputes concerning or arising from the use of the domain names, (c) specify the language of the registration agreement, and (d) whether the domain names will remain "locked" during the pendency of this proceeding.
Subsequently, on August 12, 2003, the Registrar provided its response to the Center through which the Registrar provided contact information pertinent to the contested domain names to the extent present in its WhoIS database, confirmed that Dotster is the registrar of both domain names, confirmed that it had received a copy of the Complaint and that the Policy applied to the domain names, stated that the language of the registration agreement is English and that the domain names were then in a "Registrar-lock" status. The Registrar also informed the Center that the Respondent, through its registration agreement, submitted to the jurisdiction at the location of the principal office of the Registrar or that of the Respondent�s own domicile for court adjudication of disputes concerning or arising from the use of the domain names.
On August 15, 2003, the Center notified the Respondent of the filing of the Complaint, including an indication that the Center was forwarding a complete copy of the Complaint, by email, to the Respondent (without the annexes). Specifically, the Center separately provided its notice along with the Complaint, by email, to the Respondent�s technical and administrative contacts as set forth in the WhoIs record for each of the contested domain names as well as to the postmaster at each of the contested domain names. The Center did not send a hard-copy version of the Complaint, with annexes, by postal mail, to the Respondent presumably because, as indicated in both of these WhoIs records, the Respondent did not provide a postal mail address to the Registrar. In that regard, the Respondent�s address as listed in both WhoIs records as simply "Japan Nippon US". In addition and also on August 15, 2003, the Center forwarded a copy of the Complaint to the Registrar. The Complaint, and its accompanying documents, and all subsequent communications associated therewith were provided in the preferred manners and to the addresses as mandated by paragraphs 2(a), 2(b) and 4(a) of the Rules.
Hence, the notification to the Respondent having occurred on August 15, 2003, under paragraph 4(c) of the Policy, this administrative proceeding is deemed to have commenced on that date.
The Respondent was then provided with a 20 calendar day period, expiring on September 4, 2003, to file its Response with the Center and serve a copy of the Response on the Complainants.
As of September 15, 2003, the Center had not received a substantive response to the Complaint from the Respondent; hence, the Center, in an email letter dated September 15, 2003, notified the Complainants and the Respondent of the Respondent's default.
Accordingly, pursuant to the Rules and Supplemental Rules, by email letter dated September 18, 2003, the Center contacted the undersigned, Mr. Peter L. Michaelson, Esq., requesting his service as a sole panelist for this dispute. Later that day, Mr. Michaelson accepted and returned, by facsimile to the Center and, to ensure compliance with paragraph 7 of the Rules, a fully executed Statement of Acceptance and Declaration of Impartiality and Independence. The Center, through an email letter dated September 19, 2003, notified the parties of the appointment of Mr. Michaelson as sole panelist.
Based on the deadline set forth in paragraph 15 of the Rules, a decision was to be issued by the Panel to the Center on or before October 3, 2003.
This dispute concerns two domain names, specifically <caesarsentertain.com> and <caesarsentertainments.com>.
A copy of the WhoIS registration records for each of the contested domain names appears in Annex A to the Complaint. As indicated on this record, the Respondent registered both domain names with the Registrar on July 17, 2003.
This mark was registered for use in connection with: "Providing hotel, restaurant, baby sitting, convention facility, beauty salon, and barber shop services" in international class 42. This mark claims a first use and first use in inter-state commerce dates of August 5, 1966.
This mark was registered for use in connection with: "Providing health clubs, night club entertainment, tennis instruction, and casino services" in international class 41. This mark claims a first use and first use in inter-state commerce dates of August 5, 1966.
This mark was registered for use in connection with: "Hotel, restaurant, baby sitting, convention facility, beauty, and barber shop services" in international class 42. This mark claims a first use and first use in inter-state commerce dates of August 5, 1966.
This mark was registered for use in connection with: "Night club entertainment, health club, tennis instruction, and casino services" in international class 41. This mark claims a first use and first use in inter-state commerce dates of August 5, 1966.
The Complainants provide gaming services, hotel services and entertainment services through their operation of the "CAESARS" casinos and hotels; specifically, the "CAESARS PALACE" casino/hotel in Las Vegas, Nevada; "CAESARS TAHOE" casino/hotel in Stateline, Nevada; "CAESARS ATLANTIC CITY" casino/hotel in Atlantic City, New Jersey; "CAESARS INDIANA" casino/hotel in Bridgeport, Indiana; and "CAESARS GAUTENG" casino/hotel in South Africa. In addition, the Complainants provide casino services under the name "CAESARS PALACE AT SEA" aboard the "Crystal Harmony" and "Crystal Symphony" cruise ships. These vessels on which the "CAESARS" Marks are used and displayed have literally traversed the world.
The "CAESARS" Marks are used to designate and promote the Complainants� goods and services and are firmly associated with the Complainants.
The "CAESARS PALACE" casino/hotel opened on August 5, 1966. On average, approximately 1,500,000 people stay at the "CAESARS PALACE" casino/hotel each year. Millions more visit without spending the night. As a result, the "CAESARS PALACE" casino/hotel has enjoyed and continues to enjoy exceptional success.
Complainant Caesars World, Inc. (CWI) has spent over $200,000,000 in connection with advertising and promoting its "CAESARS PALACE" casino/hotel under the CAESARS Marks during the period August 1996 through December 2001.
The "CAESARS ATLANTIC CITY" casino/hotel opened on June 25, 1979. On average, more than 700,000 people stay at this property each year. CWI has spent in excess of $15,000,000 over the last three years promoting this property.
The "CAESARS TAHOE" casino/hotel opened in November 1979, with 440 rooms. In 2001, over a quarter of a million guests stayed at this property. CWI regularly spends over $1,000,000 per year on promoting this property.
In 1990, Complainant CWI began providing casino services under the trademark "CAESARS PALACE AT SEA" aboard the Crystal Harmony cruise ship operated by one of the large cruise lines in the world, Crystal Cruises. In 1995, CWI expanded "CAESARS PALACE AT SEA" to include the Crystal Symphony cruise ship.
CWI has maintained a web site devoted to the "CAESARS" casinos and hotels at "www.caesars.com" since on or about June 1995. (a WhoIs printout showing Complainant Park Place as the registrant of <caesars.com>, and copies of various home pages of this web site throughout the years, as preserved at "www.archive.org", appear in Exhibit E to the Complaint.) A user can also access this web site through "www.caesarspalace.com", "www.caesarsac.com", "www.caesars-tahoe.com" and "www.caesarsindiana.com". The web site has continuously displayed the "CAESARS" Marks since June 1995. In the year 2000 alone, 2,018,843 unique visitors visited that site.
The "Caesars" casinos and hotels have hosted numerous prominent sports and entertainment events. Many of these events have been televised, usually on a nationwide basis, in the U.S., contributing to the wide spread fame of the "CAESARS" Marks. Over the years the "Caesars Palace" casino/hotel has hosted shows and events featuring major talents. These include, e.g., Evel Knievel, Ali v. Frazier, Alan King, Caesars Palace Tennis Classic, Foreman v. Frazier, Ali v. Bugner, Holmes v. Sauers, ESPN Thursday Night Boxing, Lily Tomlin, Paul Anka, UNLV v. UCLA Alumni Basketball Classic, Jerry Lewis Telethon, Joan Rivers, Julio Iglesias, George Burns, and Connors v. Navratilova.
As a result of Complainants� efforts, CWI�s family of marks has gained world-wide recognition and fame, which has been recognized by other UDRP panels.
All of the Complainants� incontestable marks were registered long prior to the Respondent�s registration of the contested domain names.
The Complainants also own numerous domain name registrations that contain the CAESARS Marks and have provided a list of some of those domain names in paragraph 24 of the Complaint.
Complainant Park Place, in taking advantage of the fame and power of the "CAESARS" brand and thus to heighten the Complainant�s world-wide recognition, publicly announced on July 15, 2003 that it intended to change its corporate name to "CAESARS ENTERTAINMENT, INC."
The Respondent registered the contested domain names on July 17, 2003, just two days after the Complainant Park Place announced its name change. On July 18, 2003, the Complainant Park Place received an unsolicited e-mail from the Respondent indicating that the Respondent was aware of Complainant Park Place�s impending corporate name change and offered to sell the contested domain names to that Complainant (a copy of that e-mail appears in Exhibit B to the Complaint). That e-mail incorrectly listed one of those domain names as <caesarentertain.com> rather than <caesarsentertain.com>.
As of August 1, 2003, the Respondent�s "www.caesarsentertain.com" web site displayed a message that it is "Under Construction" along with links to various subject categories including hotels, business and finance, travel and entertainment. At the top of the home page, to which that name resolved, is the message "Domain for Sales" with an e-mail contact address. (a copy of the home page from the "www.caesarsentertain.com" web site appears in Exhibit G to the Complaint).
Prior to July 31, 2003, the Respondent�s "www.ceasarsentertainments.com" web site redirected Internet users to an internal page of Complainants� "www.parkplace.com" web site. Further, up to that date, the Respondent�s "www.caesarsentertainments.com" web site was also framed with a bottom border, or tool bar (apparently provided by Dotster), that included various links labeled "Domain Search," "Web Hosting," "Email" and "Shopping." Each such link, except "Shopping", led to a Dotster web page unaffiliated with the Complainants. The "Shopping" link led to the "www.1-yourshopping.com" web site, also unaffiliated with the Complainants, which advertised various merchandise. The border also included smaller links labeled "Domain Registration" and "Web Hosting" (both pointed to a Dotster Web page), "DNS Management" (which pointed to a "www.mydomains.com" web page), and "Analytical Laboratories" (which pointed to a <www.caslab.com> web site).
Subsequent to July 31, 2003, the Respondent removed its redirection to Complainant�s "www.parkplace.com" web site, with, as a result, "www.caesarsentertainments.com" no longer pointing to an active web site. However, the bottom border, or tool bar, is still present. (a hard-copy printout of the home page from the "www.caesarsentertainments.com" web site as it appeared on August 4, 2003, also appears in Exhibit G to the Complaint).
The Complainant contends that each of the contested domain names is virtually identical or confusingly similar to the Complainants� "CAESARS" Marks.
Specifically, the Complainants state that each of the contested domain names simply adds the word "entertain" or "entertainments" to Complainants� registered mark "CAESARS". Since the Complainants provides night club, casino and related "entertainment" services, the Complainants contend that the terms "Caesars Entertain" and "Caesars Entertainments" may create the same commercial impression as does "Caesars."
Furthermore, the Complainants contend that Internet users are likely to believe the contested domain names are related to, associated with or authorized by the Complainants, and, in fact, that was the very reason why the Respondent registered the contested domain names.
Therefore, the Complainants conclude that they have met the confusing similarity/identicality requirement in paragraph 4(a)(i) of the Policy.
The Complainants contend that, for several reasons, the Respondent has no rights or legitimate interests in the contested domain names pursuant to paragraph 4(a)(ii) of the Policy.
First, the Complainants state, that even though the Respondent may have derived income, from the links available on the web sites associated with the Respondent�s "www.caesarsentertainments.com" web site, this income is certainly not sufficient to create any legitimate interest of the Respondent in the domain name <caesarsentertainments.com>.
The Complainants also take the position that where, as here, the Complainants� marks and name are so well known and so widely recognized, and have been used for so many years, the Respondent could not have legitimately used either of the contested domain names.
The Complainants further state that no relationship exists between the Complainants and the Respondent which would give rise to any license, permission, or authorization through which Respondent could own or use the contested domain names. The Complainant contends that this view is supported by the Respondent�s offer to sell the contested domain names to the Complainant Park Place.
Lastly, the Complainants contend that the Respondent is not commonly known by either of the contested domain names and is not making legitimate noncommercial or fair use of them. Indeed, to the Complainants� knowledge, the Respondent is not making and has never made any use of either of the contested domain names apart from attempting to sell them to the Complainant, offering the domain name <caesarsentertain.com> for public sale, and redirecting Internet users who enter the domain name <caesarsentertainments.com> to the Complainants� web site "enhanced" with advertising links.
Thus, the Complainants conclude that the Respondent has no rights or legitimate interests in either of the contested domain names pursuant to paragraph 4(a)(ii) of the Policy.
The Complainants contend that, also for various reasons, the Respondent has registered and is now using the contested domain names in bad faith.
First as to paragraph 4(b)(i) of the Policy, the Complainants contend that the Respondent registered the contested domain names for the plain purpose of selling them to the Complainants at a profit. This purpose is evidenced by the Respondent�s registration of the domain names two days after the Complainant Park Place announced its impending corporate name change, and by Respondent�s unsolicited offer to sell the domain names, sent one day following their registration. To the Complainant, the timing of these events, coupled with the text of Respondent�s e-mail, strongly imply that Respondent registered the domain names fully aware of the Complainants� intended use of its "CAESARS ENTERTAINMENT" mark and clearly indicates Respondent�s intent was to sell the domain names to the Complainants, presumably at a profit.
Second, as to paragraph 4(b)(iv) of the Policy, the Complainants contend that the Respondent intentionally used the contested domain names in an attempt to attract, for commercial gain, Internet users to its web site or other on-line location, by creating a likelihood of confusion with the Complainants� marks as to the source, sponsorship, affiliation or endorsement of its web site or location of a service on its web site or location. In particular, the Complainant states that the Respondent admits in his July 18, 2003 e-mail that he is aware of the Complainants� intended use of its "CAESARS ENTERTAINMENT" mark, and implies that consumers in general would also be aware of this fact. Consequently, the Complainant concludes that the Respondent�s use of the contested domain names, to intentionally create a likelihood of confusion, is a deliberate attempt to attract Internet users to the Respondent�s web sites as a result of that confusion.
Moreover, after registering the domain name <caesarsentertain.com>, the Respondent offered it for public sale. The Complainants state that consumers accessing the "www.caesarsentertain.com" web site, in an attempt to obtain information about the Complainants, will instead be confronted with an offer to purchase the domain name. The Complainants view this aspect of the Respondent�s conduct as an obvious attempt to benefit commercially from the confusion created through use of the Complainants� marks.
Further, at one time, the "www.caesarsentertainments.com" web site was redirected to Complainant�s web site and hence reinforced initial consumer confusion. The Complainants contend that the Respondent created this confusion to exert pressure on the Complainants to agree to the Respondent�s unsolicited offer to sell the contested domain names. The Complainants also contend that the existence of advertising links on the "www.caesarsentertainments.com" web site suggests that Respondent may also seek, or have sought, to derive sales or advertising income from the consumer confusion created by use of the Complainants� marks and hard-earned good will.
Third, and with respect to paragraph 4(b)(iii) of the Policy, the Complainants contend that the Respondent registered the contested domain names primarily for the purpose of disrupting Complainants� business. This is evidenced, so the Complainants allege, by the Respondent having registered the domain names merely two days after the Complainant Park Place announced its corporate name change, the Respondent�s admission that it knew of this announcement, and the Respondent�s subsequent attempt to sell the domain names to the Complainant Park Place. The Complainants allege that the Respondent�s intend to disrupt the Complainants� business is further evidenced by the Respondent: (i) having offered the domain name <caesarsentertain.com> for sale to the highest bidder; and (ii) at one time, redirecting users reaching the "www.caesarsentertainments.com" web site to Complainant Park Place�s web site, thereby reinforcing consumer confusion and leading consumers to believe that the advertising links (and other information Respondent may have chosen, or may chose, to post to at this web site) are endorsed or sponsored by the Complainants -- when such is not the fact.
With respect to paragraph 4(b)(ii) of the Policy, the Complainants contend that the Respondent registered the contested domain names in order to prevent the Complainants from doing so. The Complainants point to the timing of the Respondent�s registrations, occurring just two days after Complainant Park Place�s announcement of its impending corporate name change. The Complainant submits that inasmuch as the Respondent registered two domain names, i.e., <caesarsentertain.com> and <caesarsentertainments.com>, such multiple registration constitutes a "pattern" of cybersquatting actionable under paragraph 4(b)(ii) of the Policy.
Lastly, the Complainants contend that bad faith use and registration is further shown by the Respondent having provided incomplete or inaccurate contact information to the Registrar when it registered the contested domain names. Specifically, the Respondent provided no mailing address for the Domain Name Registrant, or for the Administrative and Technical contacts for each domain name. An e-mail address was provided only for the Administrative and Technical contacts, and differs from the address provided by Respondent�s July 18, 2003 offer to sell the contested domain names. A fax and phone number is provided only for the Administrative and Technical contacts, and that appeared to be bogus.
Therefore, the Complainants conclude that the Respondent�s conduct constitutes bad faith registration and use under paragraph 4(a)(iii) of the Policy, and specifically each of the separate grounds under paragraphs 4(b)(i)-(iv).
In view of the lack of a response filed by the Respondent as required under paragraph 5 of the Rules, this proceeding has proceeded by way of default. Hence, under paragraphs 5(e), 14(a) and 15(a) of the Rules, the Panel is directed to decide this administrative proceeding on the basis of the Complainants� undisputed representations. In that regard and apart from judging this proceeding through mere default of the Respondent, the Panel makes the following specific findings.
Without any hesitation whatsoever, the Panel finds that confusion is likely to arise as a result of the Respondent�s use of either of the contested domain names.
In particular, each of the contested domain names includes Complainant's registered "CAESARS" mark. The Complainants have alleged that they have been using the term "CAESARS" as a mark since August 1966, in connection with, inter alia, their hotel, casino and entertainment services -- approximately 37 years prior to the July 17, 2003, date on which the Respondent registered the contested domain names, and have continuously and extensively so used that mark to the present. Clearly, it defies reason to harbor the slightest doubt that the Complainants� CAESARS mark has acquired requisite secondary meaning and distinctiveness and fame quite some time prior to July 2003, and unquestionably to a level sufficient from which the Panel can just reflexively infer that potential customers and Internet users are likely to recognize the "CAESARS" mark or any of the "CAESARS" Marks as signifying hotel, casino, entertainment and related services offered by the Complainants or any organization related thereto -- of which the Respondent is clearly not one.
Further, in the context of hotel and casino services, which include providing nightly entertainment of one sort or another, be it sporting events, musical shows or other events -- for which the Complainant has unquestionably acquired an extensive reputation for doing through its "CAESARS" Marks which have become famous in connection therewith, the Panel finds that the term "entertainment" and "entertain" are simply generic terms which add absolutely no distinctive elements to the formative of the contested domain names, i.e., "CAESARS", to distinguish either of those domain names from the Complainant's "CAESARS" Marks and thus preclude confusion. In fact, given the fame which the Complainants� "CAESARS" Marks have acquired over 35 years of extensive, substantial and continuous use, the Panel can conceive of no element that could be added to the term "CAESARS" to yield a domain name, particularly one that is contemplated for use with a web site that provides hotel, casino, entertainment and/or related services, that could adequately avert such confusion.
In fact, the Panel believes, and the record utterly fails to indicate otherwise, that the Respondent�s concatenation of the generic terms "entertain" and "entertainment" to the Complainants� "CAESARS" mark was intended to and would very likely exacerbate, rather than ameliorate, the confusion.
Therefore, there can be no doubt that the Respondent had just this goal in mind and hence intentionally chose to cause and opportunistically exploit the user confusion that would inevitably arise to the Respondent�s own commercial advantage, when it formed each of the contested domain names by appending the generic word "entertain" and "entertainment" to the "CAESARS" mark. In fact, this goal is amply supported by the Respondent�s own e-mail dated July 18, 2003, to the Complainant through which the Respondent, having registered the contested domain names just one day before and having admitted its own prior knowledge of the Complainants� name change to "CAESARS ENTERTAINMENT", offered to sell the disputed domain names to the Complainant Park Place.
Such confusion would undoubtedly cause Internet users intending to access Complainants� web site, but who reach a web site through either of the contested domain names, to think that an affiliation of some sort exists between either of the Complainants and the Respondent, when, in fact, no such relationship would exist at all. See, e.g., Leiner Health Services Corp. v. ESJ Nutritional Products NAF Case No. FA173362 (September 16, 2003); Am. Family Life Assurance Company of Columbus v. defaultdata.com, NAF Case No. FA 123896 (October 14, 2002); AT&T Corp. v. Abreu, WIPO Case No. D2002-0605 (September 11, 2002); Pfizer Inc. v. Order Viagra Online, WIPO Case No. D2002-0366 (July 11, 2002); L.F.P., Inc. v. B and J Props., NAF Case No. FA 109697 (May 30, 2002); Frampton v. Frampton Enters, Inc., WIPO Case No. D2002-0141 (April 17, 2002); Spence-Chapin Servs. to Families and Children v. Wynman, NAF Case No. FA 100492 (December 10, 2001); MPL Communications v. LOVEARTH.net, NAF Case No. FA 97086 (June 4, 2001); Meijer, Inc. v. Porksandwich Web Servs., NAF Case No. FA 97186 (July 6, 2001); MPL Communications v. 1WebAddress.com, NAF Case No. FA 97092 (June 4, 2001); Am. Home Prods. Corp. v. Malgioglio, WIPO Case No. D2000-1602 (February 19, 2001); Surface Prot. Indus., Inc. v. The Webposters, WIPO Case No. D2000-1613 (February 5, 2001); Dollar Fin. Group, Inc. v. VQM NET, NAF Case No. FA 96101 (January 25, 2001); eBAY Inc. v. G L Liadis Computing, Ltd., WIPO Case No. D2000-1463 (January 10, 2001); Treeforms, Inc. v. Cayne Indus. Sales Corp., NAF Case No. FA 95856 (December 18, 2000); and The Pep Boys Manny, Moe and Jack of CA v. E-Commerce Today, Ltd., eResolution Case No. AF-0145 (May 3, 2000).
Therefore, the Panel finds that both of the contested domain names <caesarsentertain.com> and <caesarsentertainments.com> sufficiently resemble the Complainants� "CAESARS" Marks as to cause confusion; hence, the Complainants have shown sufficient similarity between their registered marks and the contested domain names under paragraph 4(a)(i) of the Policy.
The Panel believes that not only has the Respondent not provided any basis that would legitimize any claim it has to either of the contested domain names, it is extremely unlikely that the Respondent could ever make such a claim.
The simple reason is that each of the contested domain names contains the Complainants� "CEASARS" mark under which the Complainants provide their goods and services. Furthermore, the Complainants have never authorized the Respondent to utilize that mark or a mark confusingly similar thereto, in conjunction with the specific goods and services which the Complainants provide under their "CEASARS" Marks, nor do the Complainants have any relationship or association whatsoever with the Respondent.
Hence, any use to which the Respondent were to put the mark "CEASARS " or a mark confusingly similar thereto, in connection with hotel, casino, entertainment or related goods and services would directly violate the exclusive trademark rights now residing in the Complainants. See, e.g., Leiner Health Services Corp. v. ESJ Nutritional Products, supra; AT&T Corp. v. Roman Abreu d/b/a Smartalk Wireless, WIPO Case No. D2002-0605 (September 11, 2002); MPL Communications, FA 97086 and FA 97092, supra; Am. Online, Inc. v. Fu, WIPO Case No. D2000-1374 (December 11, 2000); Treeforms, Inc., supra.
It is eminently clear to this Panel that the Respondent�s actions involving the contested domain names amount to nothing more than opportunistic exploitation for his own pecuniary benefit of inevitable Internet use confusion -- which can never denote rights or legitimate interests in a domain name.
Specifically, here, the Respondent, informed of the impending corporate name change of Complainant Park Place to CAESARS ENTERTAINMENT INC., registered the contested domain names knowing full well and even implicitly acknowledging the extensive reputation and fame of the "CAESARS" Marks, and to compound matters then offering, one day later, to sell both domain names to the Complainant Park Place. There can be no doubt that the Respondent was fully aware that he had no legitimate claim to either of the contested domain names when he registered them let alone when he offered them for sale. It utterly defies the Panel�s credibility to contemplate that the Respondent�s motives were anything other than attempting to coerce the Complainants into purchasing the domain names for no other reason than to prevent the Respondent or any subsequent third-party transferee (to which the Respondent might sell or transfer either of the domain names) from using either of the domain names � domain names that, under the Policy, could only rightfully reside in the Complainants -- in a manner that would cause Internet user confusion and ultimately injure the Complainants. In short, the Respondent has registered and used the domain names � domain names that are not rightfully his -- to extort funds from the Complainants. Clearly, the Respondent did not register these domain names merely to recapture his costs of registration but obviously intended to profit from his efforts by exacting a price far higher than those costs. Otherwise, why would the Respondent have registered these domain names in the first place?
Though the Respondent evidently believed he had "stacked the deck" in his favor, what he did not gamble on was the fact that the Complainants had no patience for his deceit and simply called his bluff and instituted this proceeding to strip the domain names from him � domain names which, under the Policy, the Respondent, by its very acts and admission, could never legitimately claim in the first place.
Such exploitive use can never serve to legitimize whatever rights and interests any respondent might assert it has in a contested domain name - which, by the very default of the Respondent here, the Panel infers as a tacit acknowledgement that he has none.
In light of the above findings, the Panel is not persuaded that the Respondent has any rights or legitimate interests or, based on current facts provided to the Panel, is ever likely to acquire any rights or legitimate interests in either of the contested domain names under any provision of paragraph 4(c) of the Policy.
Thus, the Panel finds that the Respondent has no rights or legitimate interests in either of the contested domain names within paragraph 4(a)(ii) of the Policy.
The Panel believes, without any hesitation whatsoever, that the Respondent's actions constitute bad faith registration and use of both of the contested domain names.
Clearly, the Respondent�s acts -- as the Panel views them in the preceding section above, amounting to nothing less than extortion occasioned through opportunistic exploitation of inevitable Internet user confusion for the Respondent�s own pecuniary benefit and the Complainants� detriment, constitute, by their very illegality, bad faith under the general requirement of paragraph 4(a)(iii) of the Policy.
In that regard, since the specific grounds set forth in paragraph 4(b) of the Policy are illustrative and non-exclusive and the Panel having found bad faith under paragraph 4(a)(iii), the Panel, for the sake of simplicity and brevity, will not dwell on any of these grounds other than to say that the facts here also satisfy each of those grounds as well.
Accordingly, under paragraphs 4(i) of the Policy and 15 of the Rules, the Panel now grants the relief sought by the Complainants.
The contested domain names, specifically <caesarsentertain.com> and <caesarsentertainments.com>, are ordered transferred to the Complainants.

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negligence, or strict liability? Love, 1975 WLR 19.
obligation to make repairs. For there to be a remedy for a a breach of a duty to repair other than that provided in s. 704.07, the obligation must be in a written lease signed by both parties. Halverson v. River Falls Youth Hockey Association, 226 Wis. 2d 105, 593 N.W.2d 895 (Ct. App. 1999).
1. Store the personalty, on or off the premises, with a lien on the personalty for the actual and reasonable cost of removal and storage or, if stored by the landlord, for the actual and reasonable value of storage. The landlord shall give written notice of the storage to the tenant within 10 days after the charges begin. The landlord shall give the notice either personally or by ordinary mail addressed to the tenant's last-known address and shall state the daily charges for storage. The landlord may not include the cost of damages to the premises or past or future rent due in the amount demanded for satisfaction of the lien. The landlord may not include rent charged for the premises in calculating the cost of storage. Medicine and medical equipment are not subject to the lien under this subdivision, and the landlord shall promptly return them to the tenant upon request. Chap. 704, 704.05(5)(a)1.
within 30 days after the date of personal service or the date of the mailing of the notice, the landlord may dispose of the property by private or public sale or any other appropriate means. The landlord may deduct from the proceeds of sale any costs of sale and any storage charges if the landlord has first stored the personalty under subd. 1. If the proceeds minus the costs of sale and minus any storage charges are not claimed within 60 days after the date of the sale of the personalty, the landlord is not accountable to the tenant for any of the proceeds of the sale or the value of the property. The landlord shall send the proceeds of the sale minus the costs of the sale and minus any storage charges to the department of administration for deposit in the appropriation under s. 20.505 (7) (gm). Chap. 704, 704.05(5)(a)2.
3. Store the personalty without a lien and return it to the tenant. Chap. 704, 704.05(5)(a)3.
Constructive eviction discussed. First Wis. Trust Co. v. L.
Wiemann Co. 93 Wis. 2d 258, 286 N.W.2d 360 (1980).
did not relieve lessor of burden to prove damages. Rivera v.
Eisenberg, 95 Wis. 2d 384, 290 N.W.2d 539 (Ct. App. 1980).
1. Keep in reasonable state of repair portions of the premises over which the landlord maintains control; Chap. 704, 704.07(2)(a)1.
2. Keep in a reasonable state of repair all equipment under the landlord's control necessary to supply services which the landlord has expressly or impliedly agreed to furnish to the tenant, such as heat, water, elevator or air conditioning; Chap. 704, 704.07(2)(a)2.
3. Make all necessary structural repairs; Chap. 704, 704.07(2)(a)3.
4. Except for residential premises subject to a local housing code, repair or replace any plumbing, electrical wiring, machinery or equipment furnished with the premises and no longer in reasonable working condition, except as provided in sub. (3) (b). Chap. 704, 704.07(2)(a)4.
5. For a residential tenancy, comply with a local housing code applicable to the premises. Chap. 704, 704.07(2)(a)5.
The remedy provided by (3) does not exclude diminution of market value as an alternative method of computing such damages, and although the former is to be preferred where the property is easily repairable and the latter where the injury does not destroy the property, evidence of each method may be introduced by either party with the lesser amount awardable as the proper measure of damages. Laska v. Steinpreis, 69 Wis. 2d 307, 231 N.W.2d 196.
Landlord must exercise ordinary care toward tenant and others on premises with permission. Pagelsdorf v. Safeco Ins. Co. of America, 91 Wis. 2d 734, 284 N.W.2d 55 (1979).
Sub. (3) (a) requires a tenant to pay for damage which the tenant negligently causes to a landlord's property regardless of whether the landlord or landlord's insurer initially pays for the damage. Bennett v. West Bend Mutual Ins. Co. 200 Wis. 2d 313, 546 N.W.2d 204 (Ct. App. 1996).
If there is no written lease, section 704.07 applies to the obligation to make repairs. For there to be a remedy for a a breach of a duty to repair other than that provided in s. 704.07, the obligation must be in a written lease signed by both parties. Halverson v. River Falls Youth Hockey Association, 226 Wis. 2d 105, 593 N.W.2d 895 (Ct. App. 1999).
Landlord and tenant law�the implied warranty of habitability in residential leases. 58 MLR 191.
(3) or breaches any covenant or condition of the tenant's lease, other than for payment of rent, the tenant's tenancy is terminated if the landlord gives the tenant a notice requiring the tenant to remedy the default or vacate the premises on or before a date at least 5 days after the giving of the notice, and if the tenant fails to comply with such notice. A tenant is deemed to be complying with the notice if promptly upon receipt of such notice the tenant takes reasonable steps to remedy the default and proceeds with reasonable diligence, or if damages are adequate protection for the landlord and the tenant makes a bona fide and reasonable offer to pay the landlord all damages for the tenant's breach. If within one year from the giving of any such notice, the tenant again commits waste or breaches the same or any other covenant or condition of the tenant's lease, other than for payment of rent, the tenant's tenancy is terminated if the landlord, prior to the tenant's remedying the waste or breach, gives the tenant notice to vacate on or before a date at least 14 days after the giving of the notice.
action, including such defenses as the landlord's title to the premises and whether the eviction was in retaliation for the tenant's reporting housing violations, but not including those raised by defendants as to violation of federal antitrust and state franchise laws�as well as public policy defenses. Clark Oil & Refining Corp. v. Leistikow, 69 Wis. 2d 226, 230 N.W.2d 736.
lease that required landlord permission for long term guests did not result in in the tenants losing their rights to possession of the property. Consequently the tenants' guests were on the premises with the legal possessor's permission and were not trespassers. Johnson v. Blackburn, 220 Wis. 2d 260, 582 N.W.2d 488 (Ct. App. 1998).
termination and the parties' agreement is established by clear and convincing proof. (Chap. 704, 704.19(2)(a)1.
2. Termination has been effected by a surrender of the premises. (Chap. 704, 704.19(2)(a)2.
3. Subsection (6) applies. (Chap. 704, 704.19(2)(a)3.
reported building code violations. Dickhut v. Norton, 45 Wis. 2d 389, 173 N.W.2d 297.
Retaliatory eviction as a defense. 54 MLR 239.
History: Sup. Ct. Order, 67 Wis. 2d 585, 777 (1975); 1993 a.
Wis. 2d 651, 321 N.W.2d 340 (Ct. App. 1982).
required to pay during holdover period regardless of whether or not tenant uses premises. Univest Corp. v. General Split Corp. 148 Wis. 2d 29, 435 N.W.2d 234 (1989).
Sale of property constituted acceptance of surrender of premises and termination of lease. First Wis. Trust Co. v. L. Wiemann Co. 93 Wis. 2d 258, 286 N.W.2d 360 (1980).
Court's retention of jurisdiction to determine damages for rents not yet due is permitted. Mitigation expenses which may be recovered are limited to necessary expenses incurred and does not include compensation for time spent in mitigating damages. Kersten v. H.C. Prange Co. 186 Wis. 2d 49, 520 NW(2d) 99 (Ct. App. 1994).
specific performance is not proper remedy. Chi-Mil. Corp. v. W. T. Grant Co. 422 F. Supp. 46.

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