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Sharman License Holdings, Limited v. KazaaLite.com Inc.
The Complainant is Sharman License Holdings, Limited, Port Vila, Vanuatu, represented by Genga & Associates, P.C., United States of America.
The Respondent is KazaaLite.com Inc., Nassau, Bahamas, represented by Online Media Law, PLLC, United States of America.
The disputed domain name <kazaalite.com> is registered with Tucows.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the�“Center”) on June 2, 2004. On June 2, 2004, the Center transmitted by email to Tucows a request for registrar verification in connection with the domain name at issue. On June 2, 2004, Tucows transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on June 7, 2004. In accordance with the Rules, paragraph 5(a), the due date for Response was July�17,�2004. The Response was filed with the Center on July 17, 2004.
The Center appointed Ross Carson as the sole panelist in this matter on July 26, 2004. 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 filed a Supplemental Filing on August 2, 2004. The Panel advised the Parties on August 3, 2004, that, pursuant to Rule 10 of the “Rules” that having regard to the fact that the proceedings take place with due expedition, there were not exceptional circumstances warranting the acceptance of the Supplemental Filing.
KAZAA, Community Trade Mark Application No. 001786391filed August 1, 2000, for goods and services in Nice classifications 9, 35, 38, 41, 42. Annex F to the Complaint. The application was opposed by Speedware Software GmbH the owner of the trade mark CASA in relation to those goods and services in classes 9 and 42. By a decision dated May 17, 2004, OHIM rejected the application in respect of the contested goods and services and decided that the application may proceed with respect to the remaining goods and services of the application. Annex F to the Complaint, Annex No. 3 to the Response.
KAZAA, Benelux Trade Mark Application No. 1043348 filed May 11, 2003, for goods and services in classes 09, 35, 38, 41, 42. The trademark and service mark is registered as Registration No. 0747624. Annex F to the Complaint.
KAZAA, Australian Trade Mark Application No. 960655 was filed July 8, 2003, in classes 9, 35, 38, 41, 42. This application is under examination. Annex F to the Complaint.
The Complainant also states in the Complaint that the Complainant has filed an application in the United States for the trademark KAZAA AND DESIGN, Application No. 78295070, filed in International Classes 009, 025 and 038. The United States application was filed on September 02, 2003. The applicant named in United States Application No. 78295070 is SNL License Holdings Limited, a corporation incorporated in Australia. The address of the applicant SNL License Holdings Limited is in Port Vila, Vanuatu. The address of the applicant is substantially the same as the address for the Complainant, provided in the Complainant’s contact details in the Complaint. A non-final action was mailed to the applicant on March 15, 2004. Annex F to the Complaint. Annex No. 4 to the Response.
The Complainant is the registrant of the domain name <kazaa.com>. The Administrative Contact, Technical Contact and Zone Contact for the domain name <kazaa.com> is Sharman License Holdings Ltd. whose mailing address is in Port Vila, Vanuatu. The domain name <kazaa.com> was created on June 9, 2000.
The Respondent is the registrant of the domain name in dispute <kazaalite.com>. The domain name in dispute was created on March 22, 2002. Appendix A to the Complaint. Respondent states at page 7 of the Response that the Respondent has owned the <kazaalite.com> domain since January 2004, when the domain was acquired from a 3rd party.
In January 2002, Sharman Networks Limited purchased assets from the Dutch company Kazaa BV, including: (i) the user interface for the Kazaa Media Desktop (or “KMD”), the P2P application; (ii) the right to use the KAZAA mark when identifying and marketing KMD; (iii) the “www.kazaa.com” website” and related websites (including “www.desktop.kazaa.com”), which are used in connection with the KMD application for advertising and other purposes; and (iv) a license to certain software modules within the KMD application that SNL did not purchase. Complaint, para. ll; Annex No. 2 to the Response at pp. 2, 3; and Annex No. 1 to the Response at pp. 1, 2.
Based on data from “www.download.com”, Kazaa Media Desktop is the most popular downloadable software application in Internet history; in December 2003, it passed 300 million total downloads and, as of today, has been downloaded nearly 350 million times. See Annex C to the Complaint. Millions of users make multiple millions of files available to each other with KMD. See Annex D to the Complaint.
The Complainant Sharman License Holdings Limited submits that Complainant owns the trademarks and service marks of SNL, including the KAZAA trademarks and service marks through an acquisition of the mark by a related entity Sharman Networks Limited. Complaint p.5. The Respondent submits that the Complainant Sharman License Holdings Limited has not presented any documentation to record that the Complainant has authority to file the Complaint. Response pp. 3, 4. This issue will be addressed in the discussion and findings.
The Complainant submits that the domain names in dispute registered by the Respondent is confusingly similar to the Complainant’s trademark and service mark KAZAA. The Complainant submits that the trademark and service mark is a strong mark being a fanciful term which has been extensively used to identify and market software that enables peer-to-peer communications over the internet. The Complainant states that the Respondent uses the domain name in dispute to attract consumers to a site which offers peer-to-peer or file-sharing software to Internet users.
Complainant submits that the Respondent has no rights or legitimate interests in respect to the domain name in dispute.
Complainant submits that it knows of no evidence that, before any notice to the Respondent of the dispute, that Respondent used or demonstrably prepared to use the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services. Specifically, Respondent did not and do not offer the Kazaa software, and have had no license from Complainant to do so.
Complainant submits that it knows of no evidence the Respondent has been commonly known by the domain name in dispute. To the contrary, it is Complainant’s software that has been commonly and widely known by the trademark and service mark KAZAA.
Complainant further submits that the Respondent is not making a legitimate non-commercial or fair use of the domain name in dispute. Rather it is using the “Kazaa” name in association with Lite for commercial gain misleadingly to divert consumers to its site, charging a fee for access to file-sharing software that is not Kazaa Media Desktop or any licensed variation or derivative thereof. Complainant, by contrast, offers its software for download at no charge, and its efficacy and ease of use has resulted in nearly 350 million downloads of the software to date. Respondent’s offering of infringing software that is not licensed by Complainant, and charging a fee therefore, tarnishes the KAZAA mark.
The Complainant submits that the domain name at issue has been registered for improper purposes, including disrupting Complainant’s business. The Complainant further submits that Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s KAZAA mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s site or of the product Respondent’ offers on its site. In addition, the term “Kazaa” is a non-generic, invented word. As such, it is not a term a domain name registrant would legitimately choose unless it was seeking to create an impression of an association with Complainant. Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003, paragraph 7.2;Union Electrica Fenosa v. Sydey Hussain, WIPO Case No. D2000-0893. Complainant submits it is clear Respondents registered their domain names in bad faith.
(i) Complainant has not established that it is the holder of the rights it seeks to assert.
(ii) The trademark KAZAA is used by the Complainant in relation to unlawful software or an illegal service and does not constitute a basis for an enforceable right.
(iii) The relief requested by the Complainant should be denied for failure to fully disclose to the Panel the adverse status of two relevant trademark applications relied on by the Complainant.
(i) The Complainant has not established that it is the holder of the rights it seeks to assert.
The Respondent submits that as set forth in numerous news reports, including the report submitted as Annex 1 to the Response, the Complainant is one in a long line of entities that has sought to profit from the distribution of “file-sharing software” that facilitates copyright infringement, while evading the jurisdiction of copyright lawsuits filed by media plaintiffs. The distributor of the software at “www.kazaa.com” is Sharman Networks Limited (“SNL”). SNL sells advertising based on the large number of users who download its “free” file-sharing software.
SNL is a defendant in Metro-Goldwyn-Mayer Studios Inc., v. Grokster, Ltd, et al., U.S.D.C. Central California Case No. CV 01-08541-SVW (PJWx) (herein, “the MGM case”). Annex 2 to the Response. In that case, District Court Judge Stephen V. Wilson determined in a written order issued on January 9, 2003, that “in January 2002, while related legal action was pending against it in the Netherlands, Kazaa BV … transferred the “www.kazaa.com” website and domain, and the Kazaa Media Desktop” to SNL, “a company organized under the island-nation of Vanuatu,” that “explicitly disclaimed assumption of any of Kazaa BV’s liabilities, including any liability arising from these lawsuits. Further, Judge Wilson found that “Sharman was apparently formed for the sole purpose of acquiring Kazaa BV’s key assets and taking over operation of the Kazaa system.” (Annex 2, page 27, line 26 – page 28, line 1.) Another defendant in the MGM case, LEF Interactive PTY, Ltd. (“LEF”), sought dismissal by arguing it was “a management company that merely provides services to other businesses ….” (Annex 2, page 39, lines 17 – 19.) Judge Wilson, however found that “Sharman’s activities are predominantly instigated or maintained by employees of LEF,” and there was a “tremendous degree of ‘merger’ between the two companies.” (Annex 2, page 45, lines 12 – 20.) Thus, in the MGM case, three different entities were sued as purveyors of KMD file-sharing software, and all three attempted but failed to escape the District Court’s jurisdiction by various ruses.
The Respondent further submits that the current Complainant is not Kazaa BV, or SNL, or LEF. but a fourth entity, Sharman License Holdings, Ltd. No documentation or other form of document has been presented to record that this Complainant has authority to file this Complaint. SNL’s operators have been cavalier about incurring copyright liability, and brazen in spinning out multiple entities in an effort to evade the consequences of their conduct. Accordingly, the Complainant should be required to submit into evidence, as a preliminary requirement to asserting the claim herein, a true copy of the instrument pursuant to which Complainant claims the right to prosecute this UDRP proceeding. Without that information, Complainant lacks standing to make a Complaint herein, and the matter should be dismissed on that ground without further inquiry.
(ii) The trademark or service mark KAZAA is used by the Complainant in relation to unlawful software or an illegal service and does not constitute a basis for an enforceable right.
The Respondent submits that it is axiomatic that trademarks protect commerce, which is to say, lawful commerce that is in compliance with all civil and criminal laws. SNL engages in commerce that may very well be illegal, for several reasons, as noted below.
The Respondent further submits that SNL is also the primary defendant in a copyright lawsuit pending against it in Australia. In connection with that lawsuit, the news has widely reported that the Australian court recently upheld the use of an Anton Piller order permitting the seizure of documents from the SNL headquarters, and ruled that they would be admissible in trial against the company for copyright infringement.
The Respondent further submits that ’Sharman Networks, Inc. distributes file-sharing software rife with “adware” and “spyware,” programs that invade user privacy using cookies to generate ad pop-ups and tracking statistics that Sharman Networks sells to generate revenue from the activities of its “free” users. As Judge Wilson found, “the advertising seen by users is served by third-party companies, which pay Sharman to bundle their advertising software with Sharman’s KMD.” See Annex 2 to the Response at page 15, lines 12 – 14.
The Respondent further submits that Complainant and SNL’s active evasion of jurisdiction in countries where it is happy to harvest millions of users is in itself an unethical business practice. SNL is brazenly arguing, against reason, that it has built a trademark by providing what may be unlawful products and services through a shifting array of corporate shells arranged to evade liability. Respondent submits that having taken no heed of the law, and acting everywhere in defiance of law, SNL should not be permitted to allow its new shell, the Complainant, to lift the UDRP as a sword against businesses that are offering file-sharing software that is both free and free of ad and spyware. To allow SNL this power would be to literally allow illegal commercial enterprises to stamp out lawful alternatives offered by responsible businesses. Accordingly, Complainant’s request should be denied on the grounds that it has no protectable right in any mark that might attach to the provision of an illegal service or the operation of an outlaw business entity.
In Interactive Television Corporation v. Noname. Com, WIPO Case No. D2000-0358 (June 26, 2000), in denying the transfer of a disputed domain, the Panel noted “we are troubled by Complainant’s apparent lack of candor in not disclosing the Trademark Office Actions issued prior to the filing of this Complaint.” The Respondent submits that the Complainant in this matter has also not been candid with the arbitrator, leaving it to the Respondent to discover the true facts concerning the status of trademark applications by the applicant relevant to this proceeding in the European Union and the United States.
On May 17, 2004, the Office for Harmonization in the Internal Market (Trade Marks and Designs) Trademarks Department (“OHIM”) issued a decision denying a trademark application for “Kazaa”, ruling in favor of objector SpeedWare Software GmbH, which has German trade mark registration No. 300 18 460, of the word mark “CASA”. The Respondent submits that the Complainant failed to inform the Panel that the Community trademark application had been denied in an opposition decision.
The Respondent submits that the USPTO has two Kazaa trademark applications currently pending relevant to the claim asserted by Complainant herein. Both applications, under Serial Numbers 78295070 and 78295064, were submitted on September 2, 2003. With respect to both applications, the current status is listed as follows: “A non-final action has be mailed. This is a letter from the examining attorney requesting additional information and/or making an initial refusal. However, no final determination as to the registrability of the mark has been made.” The Respondent submits that the Complainant did not advise the Panel of the outstanding action.
The Respondent submits that the request for transfer should be refused for failure by the Complainant to make candid disclosure of all the facts relevant to fair adjudication of the claims.
The Respondent submits that the term “kazaa” or any of the many other spellings of words that sound like it (see “www.kazaa.com”, “www.kaza.de”, and “www.kawza.com”) are generically descriptive of any number of file-sharing systems that are competing for consumer attention. Currently, a Google search for “kazaa” generates 15,700,000 results, while a search for “kaza” generates 9,670,000 results.
Respondent submits that before receiving any notice of the dispute, Respondent used the domain name in dispute with a bona fide offering of a file-sharing program that has no adware or spyware. The Respondent further submits that Sharman Networks’ file-sharing software is heavily loaded with privacy-invasive features that install themselves on the user’s computer, barrage with advertising, and mine their activities for saleable data. As these undesirable features have become known, some file-sharing products that wish to distinguish themselves by their lack of adware and spyware have adopted the suggestive “lite” term as part of their online distribution efforts. At this time, a Google search of “k” and “lite” jointly generates 9,600,000 results. (See also “www.dietk.com” and similar marks.) Sharman Networks, Inc. offers a version of its file-sharing software without adware and spyware for $29.95 USD at “www.kazaaplus.com/download. htm”.
Respondent submits that it had no knowledge about the dispute with SNL until receiving service by email of the Complaint herein on June 7, 2004. Accordingly, before the dispute herein arose, Respondent had used the domain in a bona fide offering of goods and services.
Respondent further submits that Respondent is making a commercial fair use of the domain name in dispute as a suggestive nominative trademark that accurately identifies Respondent’s commercial offerings as distinct from the Complainant’s.
Respondent submits that Respondent has not misled the public, and has made fair use of the domain since before the dispute arose; accordingly Respondent submits that it has a legitimate right to the use of the domain as its own protected suggestive nominative mark.
Respondent submits that Respondent has never offered to sell the domain to the Complainant or SNL. It is also undisputed that Respondent did not register the domain to block the Complainant from reflecting the mark in a corresponding domain name, and has never engaged in such conduct. The Respondent directs Internet traffic to the vendors of a file sharing program that does not include adware or spyware. SNL’s business is only marginally the distribution of file-sharing software, and it is primarily gathering revenue through the sale of online advertising and the collection and sale of personal data obtained by invading the privacy of its users. Respondent therefore is not SNL’s competitor, and even if marginally so in some way there is no evidence that the domain name was registered by the Respondent primarily to disrupt its business.
The Uniform Domain Name Dispute Resolution Policy, adopted by the Internet Corporation for Assigned Names and Numbers (ICANN) on August 26, 1999, (with implementing documents approved on October 24, 1999), is addressed to resolving disputes concerning allegations of abusive domain name registration. The Panel will confine itself to making determinations necessary to resolve this administrative proceeding. See Pet Warehouse v. Pets.Com, Inc., WIPO Case No. D2000-0105.
A. Identical or Confusingly Similar to a Trademark or Service Mark in which the Complainant has Rights.
(i) The Respondent submits that Complainant has failed to establish that it is the holder of rights to prosecute this UDRP proceeding. The Complainant has established that it is the registrant of the trademark and service mark KAZAA registered as Registration No. 0747624 for goods and services in classes 09, 35, 38, 41, 42. Annex F to the Complaint. The Complainant is also the named applicant for the trademark and service mark KAZAA filed August 1, 2000, with OHIM in relation to goods and services in Nice classifications 9, 35, 38, 41, 42. Annex F to the Complaint. The Complainant has also established that it is the named applicant of Australian trademark and service mark application no. 960655 filed in Australia. Annex F to the Complaint. The Complainant is named as the registrant of the domain name <kazaa.com> which was created on June�9,�2000.
The registration of and application for the above noted trademarks and service marks and registration of the domain name<kazaa.com> by the Complainant support a finding that the Complainant has rights in the trademarks and service marks KAZAA. The Panel finds that the trademark and service mark KAZAA are used in association with software that enables peer to peer communication over the Internet. The Panel finds Sharman Networks Limited, which purchased assets from the Dutch company Kazaa BV in January 2002, including the user interface for the Kazaa Media Desktop, the P2P application and the Complainant are related entities. At page 3 of the decision of the United States District Court Central District of California, Annex No. 2 to the Response, on a motion by Defendant Sharman Networks Ltd.’s and others motions to dismiss, the Court found that Kazaa BV transferred ownership of key assets to Sharman Networks, Ltd. including the Kazaa Media Desktop (“KMD”) software.
The California Court also found (Annex 2 to the Response, p.3) that Sharman�Networks Ltd., is a company organized under the laws of the island-nation of Vanuatu doing business primarily in Australia. As stated in paragraph 2 of the Complaint the Complainant, Sharman License Holdings Limited, is a company incorporated in Port Vila, Vanuatu and has its principal place of business in Sydney, Australia.
At page 5 of the Response the Respondent states that Sharman Networks, Ltd. is also the primary defendant in a copyright lawsuit pending against it in Australia. Both Sharman License Holdings Ltd. and Sharman Networks Ltd. are defendants in the action commenced by Universal Music Australia Pty. Ltd. in Australia. The Complainant states that Sharman Networks Ltd. is a related entity of the Sharman License Holdings Ltd. The Complainant and Sharman Networks Ltd., share the same address in Port Vila, Vanuatu.
The Panel finds that the Complainant Sharman License Holdings, Ltd. is the owner of the trademark and service mark registrations and applications for KAZAA in the Benelux, the Community and Australia. Annex F to the Complaint. The Complainant is also the Registrant of the domain name <kazaa.com>. The panel also finds that on a balance of probabilities the Complainant and Sharman Networks Ltd. are related entities.
The words in paragraph 4(a) of the “Policy” require that the Complainant have rights in a trademark or service mark upon which the Complainant relies. The Panel has found that the Complainant has rights in the trademark and service mark KAZAA which entitle the Complainant to commence this proceeding. It has been accepted in several decisions that a company related to a subsidiary or parent to the registered holder of a mark may be considered to have rights in the mark. Miel, Inc v. Absolute Air Cleaners and Purifiers, WIPO Case No. D2000- 0756; Grupo Televisa, S. A., Televisa, S.A. de C. V., Estrategia, S.A. de C.v., Videoserpel, Ltd. v. Party Night Inc., a/k/a Peter Carrington, WIPO Case No. D2003-0796.
The Panel finds that the Complainant has rights in the trademark and service mark KAZAA which entitle the Complainant to proceed under the “Policy”.
(ii) The Respondent submits that the trademark KAZAA is used by the Complainant in relation to unlawful software or an illegal service and does not constitute a basis for an enforceable right. The Respondent submits that the SNL file sharing technology is rife with “adware” and “spyware”, a program that invades user privacy using cookies to generate ad pop-ups and tracking statistics that Sharman Networks sells to generate revenue from the activities of its “free” users. The Respondent did not submit any authorities holding that the Complainant’s software was unlawful or illegal. The Panel does not accept Respondents submission that the SNL software is unlawful or illegal.
The Respondent also submits that the software associated with the Complainant’s trademarks and service marks may very well enable its users to infringe the copyrights of third parties. The Respondent submits that trademarks may only be protected when the goods or services associated with a trademark are used in lawful commerce.
The Panel finds that the Respondent has not established on the basis of the evidence that the SNL software is unlawful software or software used in unlawful commerce. Courts in a number of countries have held that the provider of peer to peer software is not a copyright infringer.
(iii) The Respondent submits that the Complainant should be denied the relief requested for failure to fully disclose to the Panel the adverse status of two relevant trademark applications relied on by the Complainant.
The Respondent submits that the Office for Harmonization In The Internal Market (Trade Marks And Designs) issued a decision denying the Complainant’s trademark application for KAZAA ruling in favor of the objector SpeedWare Software GmbH the owner of German Trade Mark Registration No. 300 18 460 for the mark CASA. A copy of the decision of the Opposition Division of OHIM is attached as Annex No. 3 to the Response.
A review of the opposition decision discloses that the Complainant’s application for the word KAZAA was to register the mark in relation to the goods and services in classes 9, 35, 38, 41 and 42. The opposition was limited to the goods and services in classes 9 and 42 of the Complainant’s application. At page 9 of the decision the Opposition Division held that it rejects the application for KAZAA for all the contested goods/services. The Opposition Division also found that the Applicant may proceed with the application for the remaining goods/services of the application. The opposition was based on likelihood of confusion of CASA and KAZAA.
The particulars of Community Application No. 001786391 for the trademark KAZAA provided to the Panel by the Complainant is part of Annex F to the Complaint. The data provided was taken from OHIM records on May 5, 2004. The OHIM records for May 10, 2004, disclose that there is an opposition pending against the Community application. Particulars of the opponent’s name and date of commencement of the opposition are also provided in the OHIM particulars of the application.
The Panel finds following the opposition decision that the Community Application for KAZAA remains pending in relation to the goods/services in classes 35, 38, 41. The decision in relation to classes 9 and 42 was based on likelihood of confusion. The Panel finds that the decision of OHIM in the opposition is not material with respect to the adjudication in this proceeding as the Complainant’s Community application for KAZAA remains pending in relation to classes 35, 38 and 41. Further, the Panel notes that the OHIM decision in the opposition was rendered fairly recently at a date after the Complainant had downloaded the OHIM particulars of the Community application.
The Respondent also alleges that the Complainant has failed to advise the Panel with respect to office actions pending in the USPTO on two KAZAA applications, Serial Nos. 78295070 and 78295064. The particulars of KAZAA application Serial No. 78295070 attached as part of Annex 7 to the Complaint, discloses at the bottom of page 2, that a non-final action was mailed to the applicant on March 15, 2004. The Respondent has not disclosed any substantially different information in Annex 4 to the Response.
The Panel finds that the Complainant has not shown any lack of candor in disclosing the outstanding office actions with respect to the two United States applications. The Panel, as stated above, notes that the two United States applications for KAZAA are filed in the name of SNL License Holdings Limited, a corporation incorporated in Australia, having the same address in Vanuata as the Complainant. In view of the fact that the Complainant is not the entity named as the applicant for the above noted U.S. Trademark Applications the Panel has not relied on the above noted United States Applications as being applications filed by the applicant.
The Respondent cites a number of domain names based on misspellings of the created word KAZAA to support a submission that KAZAA is generically descriptive of any number of file-sharing systems that are competing for consumer attention. The Respondent’s evidence does not support a finding that the trademark or service mark KAZAA is associated by the public with any peer to peer software other than the Kazaa Media Deskto (“KMD”) software. For a history of the (“KMD”) software see Annexes 1 and 2 to the Response.
The domain name in dispute <kazaalite.com> is comprised of the prefix “kazaa” and the suffix “ lite”.
The Panel finds that the addition of the suffix “lite” to the Complainant’s trademark and service mark KAZAA does not avoid a finding that the domain name in dispute is confusingly similar to the Complainant’s trademarks and service mark “KAZAA”. The suffix “lite” merely suggests a select version of Complainant’s software identified by the trademark and service mark KAZAA. The presence of a suffix does not prevent a finding of confusingly similar, see Yahoo! Inc. v. Jorge O Kirovsky, WIPO Case No. D2000-0428. Furthermore, the addition of the generic top level domain name “.com” does not avoid a finding of confusingly similar, see J. D. Edwards & Company v. Nadeem Bedar, WIPO Case No. D2002-0693.
The Panel concludes that the Complainant has proven that the domain name in dispute is confusingly similar to the Complainant’s trademarks and service mark KAZAA.
Paragraph 4(a)(ii) of the Policy inquires as to whether or not the Respondent has any rights or legitimate interests vested in the domain name. Paragraph 4(c) of the Policy provides examples of circumstances that the Respondent can rely on to demonstrate the existence of such rights or legitimate interests: (i) use of, or preparations to use, the domain name in connection with a bona fide offering of goods or services; (ii) the fact that the Respondent has been commonly known by the domain name; and (iii) legitimate non-commercial or fair use of the domain name.
The Respondent acquired the domain name in dispute in January 2004. The Respondent submits that until receiving service of the Complaint herein on June�7,�2004, the Respondent had no knowledge about the dispute.
The Respondent has always displayed a clear disclaimer on the first page of its website in the following form: “This site is not affiliated with Sharman Networks and does not infringe on their copyrights!” The fact that the Respondent has used the disclaimer since commencement of use of the domain name in dispute shows that the defendant was aware of the fact that KAZAA was a well known trademark and service mark at the time that the Respondent commenced to use the disputed domain name incorporating the KAZAA mark as a prefix of the domain name in dispute.
The <kazaalite.com> domain resolves to WinMX. The Respondent in its disclaimer implies that WinMX software does not infringe Sharman Networks copyrights in Kazaa Media Desktop (“KDM”) software.
The Panel finds that the use of the domain name in dispute having the prefix KAZAA in association with file sharing software, which is not associated with Kazaa Media Desktop (KMD”) software, is not a use of the domain name in connection with a bona fide offering of goods ore services.
The Respondent submits that <kazaalite.com> is a suggestive term that makes fair nominative use of the “kazaa” term. The Respondent submits that the suffix “lite” is a suggestive term adopted by some distributors of shareware or file sharing products without adware or spyware.
The Panel finds that KAZAA is a mark associated with Kazaa Media Desktop (“KMD”) software, which has no association with WinMX software, which allegedly does not infringe “KMD” software. The use of the domain name in dispute is not a fair use of a nominative mark because the prefix KAZAA is primarily associated in the minds of Internet users with Kazaa Media Desktop (“KMD”) software.
The Respondent has always operated a redirection service in association with the domain name in dispute since acquiring the domain name <kazaalite.com> in January�2004. As found above the redirection is to WinMX file sharing software which, as stated by the Respondent, is not affiliated with Sharman Networks and does not infringe on their copyrights. The Panel finds that the domain name in dispute states a connection with Kazaa Media Desktop (“KMD”) software which is strong evidence of an intent to intercept and siphon off traffic from its intended destination, Littleford Day Inc. v. NRM Equipment Company, WIPO Case No. D2004-0201.
The Complainant’s trademark and service mark are very well known with respect to P2P shareware. The Respondent acquired the domain name in dispute knowing of the success of KAZAA P2P shareware. The Panel finds that the Respondent acquired the domain name in dispute in 2004 knowing that it would attract internet users aware of KAZAA software; see Veuve Cliquot Ponsardin v. The Polygenix Group Co., WIPO Case No. D2000-0163; Parfums Christian Dior v. Javier Garcia, WIPO Case No. D2000-0226.
The Panel finds that the use of the domain name in dispute <kazaalite.com> to direct users looking for Complainant’s website to the website of a third party is strong evidence of an intent to divert traffic from its intended destination. See Littleford Day Inc. v. N R M Equipment Company, WIPO Case No. D2004-0201.
The Respondent submits that since it has always displayed a clear disclaimer on the first page of its website, such a disclaimer negates any finding that the Respondent registered the domain name to attract Internet users to the Respondent’s website by creating a likelihood of confusion with the Complainant’s trademark or service mark.
A disclaimer does not overcome initial interest confusion in which an Internet web user is attracted to a website identified by a domain name including the prefix KAZAA, which the consumer associates with the Complainant. The consumer may realize, once at the website, that the site is not operated by the Complainant, but the consumer may continue and purchase the Respondent’s similar goods, thus profiting from use of the Respondent’s confusingly similar domain name. See Sharman License Holdings Limited v. KazaaPlatinum.com, WIPO Case No. D2004-0401.
The Panel finds that by using the domain names in dispute, the Respondent has intentionally attempted to attract, for commercial gain, internet users to its website by creating a likelihood of confusion with the Complainant’s trademark and service mark KAZAA as to source, sponsorship, affiliation, or endorsement of Respondent’s website or person to person shareware.
For all the foregoing reasons, in accordance with Paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <kazaalite.com> be transferred to the Complainant.

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Full Case Name: Wydell Dixon, Appellant v. The State of Texas, Appellee.
Summary: An owner of a non-profit cat sanctuary, which housed over 200 cats taken care of by one employee, was convicted by a jury of four counts of non-livestock animal cruelty. The trial court placed the owner under community supervision for five years' on each charge, to be served concurrently. In her first issue on appeal, the owner contended the evidence was legally insufficient to support her convictions. Based on evidence that the owner only had one employee to take care of the cats, however, the Texas court of appeals overruled this issue. In her second issue on appeal, the owner contended that the trial court erred by overruling her motion to dismiss the indictments where the State alleged a felony by commission of elements defined as a misdemeanor under the animal cruelty statute. On this issue, the court stated that it was true that the State had to prove that appellant failed to provide food, water, or care to the cats, but it also had to prove death or serious bodily injury to the cat that was committed in a cruel manner, i.e., by causing unjustified or unwarranted pain or suffering. In other words, the failure to provide food, water, or care is the manner and means by which appellant killed the cats, causing them unjustified pain or suffering, which raised the charge from a misdemeanor to a felony. The second issue was therefore affirmed. The appeals court also overruled the owner’s other issues and thereby affirmed the lower court’s ruling.
*1 A jury convicted appellant, Wydell Dixon, of four charges of cruelty to nonlivestock animals, a state jail felony. SeeTEX. PENAL CODE ANN. § 42.092(b)(1), (c)(Vernon 2011). The trial court then assessed punishment at two years' confinement, but suspended, and placed appellant under community supervision for five years' on each charge, to be served concurrently. On appeal, appellant contends (1) the evidence, when measured under a hypothetically correct jury charge, was legally insufficient; the trial court erred by (2) overruling appellant's motion to dismiss because the indictments charged a misdemeanor, not a felony; (3) permitting the State to charge strict liability offenses; (4) denying appellant's motion to quash based on the doctrine of in pari materia; (5) failing to submit appellant's requested defensive charges; (6) permitting behavior by the State that deprived appellant of due process and due course of law; and (7) failing to grant a mistrial and denying appellant's motion for new trial after jurors were not provided overnight facilities and were allowed to separate. We affirm.
Appellant, Wydell Dixon, was the owner of a non-profit cat sanctuary located at 1112 6th Street in Texas City, Texas. The sanctuary, known as “Whiskerville,” had been in operation since approximately 2003. At a cat sanctuary, as opposed to a shelter, the cats are not euthanized or killed. The cats are free to live there until they pass from old age. The cats at Whiskerville were “free range” and were not kept in cages. The majority of the Whiskerville cats were older cats and, therefore, not adoptable.
At the time of the offense, Whiskerville had only one employee, Kimberly Paskert. Paskert started working at Whiskerville in 2005, but left for a year in October or November of 2009, when she and appellant had a dispute over Paskert's work. Paskert was paid $30 per day when she started, and she was sometimes allowed to use a gas card for extra work.
Paskert returned to Whiskerville in October 2010 and worked there until December 2011. She worked five days per week until a part-time employee left in early February 2011. From the end of January or beginning of February 2011, until December 26, 2011, Paskert worked seven days per week. Paskert took off only three days in 11 months—one day each in October, November, and December 2011.
As the sole employee caring for nearly 200 cats, Paskert's work at Whiskerville was, as described by another former employee, “back breaking.” Paskert's daily tasks included: cleaning the messes the cats made on the floors and counters; emptying four big litter pans, then scraping and cleaning the litter pans with sponges and sanitizer; refilling the litter pans; sweeping and cleaning the locations for the litter pans and putting the pans back; carrying 40 pound bags of litter from the garage into the main building, two to three times per day; cleaning inside the two feeders, if necessary, and refilling them; carrying 25 pound bags of food from the garage into the main building, at least twice per day; refilling the cat food bins inside the main building, usually twice per day; cleaning the outside, the bottom, and, if necessary, the inside, of the 2.7 and 5 gallon water containers and then refilling them; and cleaning the bed, rug, litter pan, food container, and water container in as many as five cages.
*2 Paskert had to do all this for the main area, the hallway, each of the six rooms in the main building, and the back building. Paskert had to clean furniture and take the trash out of every room. It took seven trips per day just to carry the used cat litter to the dumpster. Paskert's weekly tasks included: taking apart and cleaning the feeders; brushing the laundry, rugs, and towels, before taking them to Dixon to be washed at least three times per week; mopping once or twice per week; and cleaning all the windows. Paskert also had additional tasks to perform as needed: administering medicines and special foods to sick cats, sometimes feeding them with a syringe; cleaning the cat trees, which were as high as seven feet; soaking and rinsing the cat toys; clipping the cats' claws, so they would not grow into their paws; and checking the cats' ears for mites.
It took Paskert 10 to 15 hours per day, depending on messes, to do all of the daily chores, when she was able to finish them. Paskert always tried her hardest, but she “couldn't keep up with it all.” She tried to do all she possibly could two to three days per week. Some days she worked six to eight hours; the minimum was three to five hours.
On January 3, 2012, animal control officers and peace officers responded to a complaint about Whiskerville. Kim Schoolcraft, the Animal Services Manager for the Galveston County Health District, looked through the windows. She saw dead animals, feces and urine on the floor and walls, and large feeders and water containers that were empty and dumped over. A lot of live cats were roaming freely. The cats had their mouths open, a sign of distress. There was a very strong odor, “[e]ven outside the building.” Schoolcraft and the others waited until Texas City Police Department officers arrived to assess the situation and then obtain a civil animal seizure warrant.
Corporal Grandstaff, the Animal Control Supervisor of the Texas City Police Department, arrived. When Grandstaff looked through the windows, he saw dead cats. He also saw live cats clawing at the window and “screaming,” “like they wanted to get out.” Grandstaff testified there was “filth everywhere,” feces all over, and water bowls overturned. He saw cats in cages without water bowls or food, and he smelled a stench.
Eventually, officers obtained a civil animal seizure warrant to rescue the cats in distress. When officers forced open a door, the stench was overwhelming. One animal control officer entered but had to exit, and vomited. Schoolcraft and Grandstaff entered, but had to back out because the odor was overwhelming. The air inside Whiskerville was so bad officers had to obtain respirators for people to go inside and rescue the cats.
Schoolcraft testified that every cat was matted with urine and feces. This is unusual because cats are clean animals and it means the cats had given up trying to clean themselves. Many of the cats were emaciated, but some were very obese. There was evidence that some cats had cannibalized dead cats. Schoolcraft concluded that some of the cats had taken over the sources of food and water and not allowed the other cats near them.
Schoolcraft testified almost all of the cats had “upper respiratory infection, mouth ulcers, parasites, ear mites, ringworms, all types of problems.” Many had green discharge from their nose and eyes. Some of the cats had open wounds. None of the cats were healthy.
*3 Schoolcraft said there were five cages with cats inside that had no food or water. The rest of the cats were roaming freely, though some were in rooms with the doors shut. There was at least one dead cat in each room. Twenty-seven dead cats and 168 live cats—a total of 195 cats—were removed from Whiskerville.
Both appellant and Paskert arrived at Whiskerville during the process of the cat seizures. Upon arrival, appellant asked about what was going on. When informed about the conditions inside Whiskerville, appellant became very upset and said, “I don't know why I pay her.” Paskert was interviewed on television and indicated that she wanted to kill herself for her failure to take care of the cats.
During a subsequent interview with police, Paskert claimed that she had arranged to have a volunteer named Karen Tibbets take care of the cats so that she, Paskert, could take a week off after Christmas. Paskert said that she thought Tibbets was taking care of the cats. Paskert also said that she did not tell appellant about subcontracting her work to Tibbets, and that twice she told appellant that the “kitties were fine.” Police were unable to locate anyone in the area named Karen Tibbets and concluded that no such person existed.
Appellant and Paskert were both arrested and charged with cruelty to nonlivestock animals. Paskert testified at appellant's trial under an offer of use immunity. She was not offered a plea deal in her own case.
After the case was submitted to the jury, appellant moved to sequester the jurors, and the trial court granted her motion. The jurors were taken to a local hotel at approximately 11 p.m. after the first day of deliberations. Approximately four hours later, a bomb threat was phoned in to their hotel. The bailiffs evacuated the jurors, who were kept together, but who overheard third parties talking about the bomb threat. After the bailiffs were unable to find other accommodations for the jurors, they returned the jurors to the deliberation room at the courthouse, where the jurors slept on the floor the rest of the night. After continuing their deliberations the next morning, the jury returned guilty verdicts on four counts of animal cruelty.
Because appellant's second issue on appeal challenges the jurisdiction of the trial court, we address it first. Whether a court has subject matter jurisdiction is a question of law. Coleman v. State, No. 07–10–00423–CR, 2011 WL 3925767, at *2 (Tex. App.–Amarillo Sept. 7, 2011, no pet.)(mem. op., not designated for publication) (citing Tex. Dep't of Parks & Wildlife v. Miranda,133 S.W.3d 217, 226 (Tex.2004)). In Texas, district courts have jurisdiction over felony offenses. TEX. CODE CRIM. PROC. ANN. art. 4.05 (Vernon 2005); see alsoTEX. CONST. art. V, § 8 (“District Court jurisdiction consists of exclusive, appellate, and original jurisdiction of all actions, proceedings, and remedies, except in cases where exclusive, appellate, or original jurisdiction may be conferred by this Constitution or other law on some other court, tribunal, or administrative body.”); TEX. GOV'T CODE ANN. § 24.007(a) (Vernon Supp. 2014) (“The district court has the jurisdiction provided by Article V, Section 8, of the Texas Constitution.”); Puente v. State, 71 S.W.3d 340, 343 (Tex.Crim.App.2002) (“A district court has jurisdiction over felony offenses. It does not have original jurisdiction over misdemeanor charges, except those involving official misconduct.”).
*4 Appellant, relying on State v. Kingsbury, 129 S.W.3d 202, 206–07 (Tex.App.–Corpus Christi 2004, no pet.), argues that “[a] person can commit the misdemeanor offense of failing unreasonably to provide necessary food, water, care or shelter or a person may commit the felony offense of torturing, killing, or causing serious bodily injury to an animal—but a person cannot commit a felony offense by committing predicate acts that are listed as a misdemeanor under the statute.” The State responds that Kingsbury is not applicable because it interprets a version of the animal cruelty act that has since been amended. We agree with the State.
Acts of 1989, 71st Leg., ch. 1253, § 2, eff. Sept. 1, 1989; Acts of 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1993; Acts of 1995, 74th Leg., ch. 318, § 18, eff. Sept. 1, 1995; Acts of 1997, 75th Leg., ch. 1281, § 2, eff. Sept. 1, 1997; Acts of 2001, 77th Leg., ch. 450, § 1, eff. Sept. 1, 2001; Acts of 2003, 78th Leg., ch. 1275, § 2(11), eff. Sept. 1, 2003; Acts of 2007, 80th Leg., ch. 886, § 1, eff. Sept. 1, 2007 (current version at TEX. PENAL CODE ANN. § 42.092 (Vernon 2011). Under the prior statute, torturing an animal under subsection (a)(1) and killing, seriously injuring, or poisoning another person's animal under subsection (a)(5) were felonies, while failing to provide necessary food, care, or shelter to an animal in one's custody under subsection (a)(2) was a misdemeanor. Id. The statute did not define “tortures.” Id.
The felony indictment against Kingsbury alleged that he intentionally or knowingly tortured four dogs by leaving them without food and water, which led to their deaths. Kingsbury, 129 S.W.3d at 204. Kingsbury filed a motion to dismiss, alleging that the indictment alleged felony torture, but used, as the defining element, language from the misdemeanor offense of failing to provide necessary food, care, or shelter. Id. The trial court agreed, and dismissed the case for want of jurisdiction because the indictment alleged a misdemeanor under the guise of a felony. Id. The court of appeals affirmed, holding that “torture” could not be interpreted to include the misdemeanor criminal acts of failing to provide necessary food, care, or shelter. Id. at 206. To permit such an overbroad meaning of “torture” would allow any of the misdemeanor acts of cruelty to be charged as felonies.Id. at 207.
TEX. PENAL CODE ANN. § 42.092(b)(1–9) (Vernon 2011). Failing unreasonably to provide food, water, care, or shelter to an animal in one's custody and abandoning unreasonably an animal in one's custody are Class A misdemeanors unless the defendant has prior convictions for animal cruelty. Seeid. § 42.092(c). Torturing an animal and killing or causing serious bodily injury to an animal in a cruel manner are state jail felonies. Id. The statute now defines “torture” as “any act that causes unjustifiable pain or suffering” and “cruel manner” as “a manner that causes or permits unjustified or unwarranted pain or suffering.” Seeid. § 42.092(a)(3), (8).
The indictment in this case tracked the language of section 42.092(b)(1), which is a state jail felony. An indictment that tracks the statutory language proscribing certain conduct is sufficient to charge a criminal offense. State v. Edmond, 933 S.W.2d 120, 127 (Tex.Crim.App.1996). Because the criminal offenses charged here were state jail felonies, not simply misdemeanors, the trial court had jurisdiction over the case.
Accordingly, we overrule issue two.
In her first issue on appeal, appellant contends the evidence is legally insufficient. Specifically, appellant challenges whether there is sufficient evidence of the culpable mental state of recklessness. We review the legal sufficiency of the evidence by considering all of the evidence “in the light most favorable to the prosecution” to determine whether any “rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S.Ct. 2781, 2788–89, 61 L.Ed.2d 560 (1979). Our role is that of a due process safeguard, ensuring only the rationality of the trier of fact's finding of the essential elements of the offense beyond a reasonable doubt. SeeMoreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988). We give deference to the responsibility of the fact finder to fairly resolve conflicts in testimony, weigh evidence, and draw reasonable inferences from the facts. Williams v. State, 235 S.W.3d 742, 750 (Tex.Crim.App.2007). However, our duty requires us to “ensure that the evidence presented actually supports a conclusion that the defendant committed” the criminal offenses of which she is accused. Id.
*6 A person commits the offense of animal cruelty, as pleaded and submitted to the jury in this case, if she recklessly and in a cruel manner kills or causes serious bodily injury to an animal. TEX. PENAL CODE ANN. § 42.092(b)(2). In a “cruel manner” includes a manner that causes or permits unjustified or unwarranted pain or suffering. Id. § 42.092(a)(3).
A person's culpable mental state may be inferred from her acts, words, and conduct, and the surrounding circumstances. Hart v. State, 89 S.W.3d 61, 64 (Tex.Crim.App.2002); Moore v. State, 969 S.W.2d 4, 10 (Tex.Crim.App.1998) (“Mental culpability is of such a nature that it generally must be inferred from the circumstances under which a prohibited act or omission occurs.”). Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor. Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App.2004); seeLaster v. State, 275 S.W.3d 512, 524 (Tex.Crim.App.2009) (“[O]ne's acts are generally reliable circumstantial evidence of one's intent.”). The culpable mental state of “reckless” is satisfied by evidence indicating that the defendant consciously disregarded a substantial and unjustifiable risk that the proscribed harm would occur—a risk that if disregarded constitutes a gross deviation from the standard of care an ordinary person would exercise under the same circumstances. Davis v. State, 955 S.W.2d 340, 348–49 (Tex.App.–Fort Worth 1997, pet. ref'd); seeTEX. PENAL CODE ANN.§ 6.03(c) (Vernon 2011) (“A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct ... when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur.”) Reckless conduct “involves conscious risk creation, that is, [that] the actor is aware of the risk surrounding his conduct or the results thereof, but consciously disregards that risk.” Davis, 955 S.W.2d at 349 (quoting Aliff v. State, 627 S.W.2d 166, 171 (Tex.Crim.App.1982)).
Appellant first argues that “[t]he jury charge and the indictment did not accurately set out the law[,]” and that under a hypothetically correct charge she would have been charged with misdemeanor failure to provide the cats with necessary food, water, or care under section 42.092(b)(3). She further argues that there is insufficient evidence that she failed to provide food or water or that she had custody of the cats as required by the misdemeanor offense. However, we have already held that appellant was properly charged under the felony section 42.092(b)(1), not the misdemeanor section 42.092(b)(3). Thus, her argument that the evidence is legally insufficient to prove the elements of the misdemeanor is irrelevant.
Appellant next argues that “[t]he evidence was insufficient even though the indictments and jury charges were defective[ ]” because “[t]he mental state of recklessness was not proven.” Appellant argues that Kimberly Paskert's testimony proved that appellant “had no knowledge of the conditions at Whiskerville and that she lied to the Appellant about the status of the cats whose care she was responsible for[,]” and that appellant could not have anticipated Paskert's failure to show up for work.
The State responds that its “sole theory at trial was that Appellant was reckless in relying on only one person to care for 200 cats.” In other words, the State is contending that appellant's operation of the shelter with only one employee, who had no assistance or back-up, and who had expressed her need for help on more than one occasion, created the risk of the animals' deaths in a cruel manner, which appellant consciously disregarded.
*7 Here, there was evidence that Paskert, the sole employee at Whiskerville, was overwhelmed by her workload. Paskert testified that it took 10 to 15 hours per day to complete all of the tasks assigned to her, which she tried to accomplish at least two to three days per week. On the other days she worked six to eight hours per day; she never worked less than three hours.
Appellant knew that Paskert needed help, but would always respond when questioned about it that she “was working on it.” A few months before the cats were seized, Donna Jones, a former Whiskerville employee, came by the shelter to pick up cat food. Jones found Paskert there, upset and crying. Paskert told Jones that she was tired, her hands were hurting from all the cleaning, and she needed help. Appellant was aware that Paskert, who was 48 years old, had suffered from arthritis for many years.
Appellant, who lived approximately 20 minutes away from Whiskerville, rarely went to the sanctuary. Appellant usually showed up only for adoption days, and Paskert had not seen appellant at the sanctuary since early October 2011. Indeed, a neighbor, Donna Myers, testified that she had seen no one at Whiskerville during the entire month of December 2011.
Kim Schoolcraft, the manager at the Animal Resource Center in Galveston, testified that she had 10 to 12 employees to take care of the 275 animals that she averaged at her facility. In Schoolcraft's opinion it was “absolutely” unreasonable to expect one person to care for 200 cats.
Although appellant claims that she reasonably relied on Paskert to show up and care for the cats and that Paskert had been a reliable employee for six years before suddenly failing to appear for work, there was evidence that Paskert had quit or was fired once before because she was unable to keep up with the work to appellant's satisfaction.
Based on the evidence that appellant (1) expected Paskert alone to care for 200 cats seven days per week, (2) provided no assistance or back-up for the arthritic Paskert, even though she knew Paskert needed and had requested assistance, (3) rarely went to the shelter herself and had not been seen at Whiskerville in months, and (4) was difficult to reach, other than by text message, and that (5) Paskert had quit or been fired once before when she could not keep up with the work, the jury could have believed beyond a reasonable doubt that appellant created the risk that the animals would not be properly cared for, causing them to be killed or suffer severe bodily injury in a cruel manner, and that appellant consciously disregarded the substantial and unjustifiable risk that the cats' deaths would occur.
Accordingly, we overrule issue one.
*8 Accordingly, we overrule issue three.
In issue four, appellant contends the trial court erred “by overruling [her] motion to quash the indictments based upon the doctrine of in pari materia [. ]” Appellant contends that she should have been charged with the misdemeanor offense of “abandoning” an animal under subsection (b)(4), rather than the state jail felony of killing or causing serious bodily injury to an animal in a cruel manner under subsection (b)(1). Specifically, appellant argues that the abandoning portion of the statute more specifically covers the conduct she is alleged to have committed, thus she should have been charged with that offense.
When two statutes address the same general subject, they are considered as being in pari materia. SeeState v. Vasilas, 253 S.W.3d 268, 271 (Tex.Crim.App.2008). All acts and parts of acts in pari materia must be read and construed together as though they were parts of one and the same law, even if they were enacted at different times. Id. Whenever possible, we must harmonize any conflict between the two statutes so that each is given effect. Id. at 272. If the statutes are irreconcilable, then we must apply the more “special” statute as an exception to the general one. SeeTEX. GOV'T CODE ANN. § 311.026 (Vernon 2013). In the context of penal provisions, the Court of Criminal Appeals has determined statutes to be in pari materia“where one provision has broadly defined an offense, and a second has more narrowly hewn another offense, complete within itself, to proscribe conduct that would otherwise meet every element of, and hence be punishable under, the broader provision.”Jones v. State, 396 S.W.3d 558, 561 (Tex.Crim.App.2013) (quoting Azeez v. State, 248 S.W.3d 182, 192 (Tex.Crim.App.2008)).
A list of four non-exclusive factors may be considered in determining whether the statutes are in pari materia, namely, whether the statutes: (1) involve different penalties; (2) are contained in the same legislative act; (3) require the same elements of proof; and (4) were intended to achieve the same purpose or objective. Burke v. State, 28 S.W.3d 545, 547 (Tex.Crim.App.2000).
Here, the statutes involve different penalties. Subsection (b)(1) is a state jail felony and subsection (b)(4) is a Class A misdemeanor. SeeTEX. PENAL CODE ANN. § 42.092(c). While both subsections were promulgated in the same 2007 legislative act, they do not require the same elements of proof. As we discussed in issue two, the felony offense in subsection (b)(1) requires killing or causing serious bodily injury to the animal in a cruel way, i.e., causing unwarranted pain and suffering. The misdemeanor offense of abandoning does not require death, serious bodily injury, or the causing of unwarranted pain and suffering. And, while both statutes are intended to prevent animal cruelty, the “nature of the forbidden conduct” in the misdemeanor subsection (b)(4) is abandoning an animal, while the forbidden conduct in the state jail felony subsection (b)(1) is killing or causing serious bodily injury in a way that causes unwarranted pain and suffering. SeeMills v. State, 722 S.W.2d 411, 415 (Tex.Crim.App.1986) (determining statute's purpose and objective by considering conduct forbidden by statute).
*9 As such, we conclude that abandonment is not a “more narrowly hewn ... offense, complete within itself, [that] proscribe[s] conduct that ... otherwise meet[s] every element of, and hence [is] punishable under” subsection (b)(1). Id. at 414. Put simply, proof of abandonment alone will not prove the elements of the crime charged.
We overrule appellant's fourth issue.
The trial court shall “deliver to the jury ... a written charge distinctly setting forth the law applicable to the case [and] not expressing any opinion as to the weight of the evidence....”TEX. CODE CRIM. PROC. ANN. art. 36.14 (Vernon 2007). The trial court is required to instruct the jury on statutory defenses, affirmative defenses, and justifications when they are raised by the evidence. Walters v. State, 247 S.W.3d 204, 208–09 (Tex.Crim.App.2007). The defendant is entitled to an instruction on every defensive issue raised by the evidence, “regardless of whether the evidence is strong, feeble, unimpeached, or contradicted, and even when the trial court thinks that the testimony is not worthy of belief.” Id. at 209. The Court of Criminal Appeals has held, however, “that if the defensive theory is not explicitly listed in the penal code—if it merely negates an element of the State's case, rather than independently justifying or excusing the conduct—the trial judge should not instruct the jury on it.” Id.;see alsoGiesberg v. State, 984 S.W.2d 245, 250 (Tex.Crim.App.1998) (“[B]ecause the authority to establish what constitutes a defense rests solely with the Legislature, this Court concludes [that] a defense which is not recognized by the Legislature as either a defense or as an affirmative defense does not warrant a separate instruction.”).
Here, the animal cruelty statute contains affirmative defenses to killing or injuring someone else's dog without their consent if (1) the animal is discovered on one's property and is injuring or killing livestock or damaging crops, or (2) the person killed the animal within the scope of the actor's employment as a public servant or in furtherance of certain electrical or natural gas delivery activities. SeeTEX. PENAL CODE ANN. § 42.092(e). Neither statutory defense is applicable here. The statute also provides an exception to its application if the actor is involved in “generally accepted and otherwise lawful” conduct relating to fishing, hunting, or trapping, wildlife management and related activities, or animal husbandry or agriculture practices involving livestock. SeeId. § 42.092(f). The jury was charged on these provisions. No other defenses are listed in the statute.
“Custody” includes responsibility for the health, safety, and welfare of an animal subject to the person's care and control, regardless of ownership of the animal.
A person may transfer custody by making reasonable arrangements for the assumption of custody by another person.
The first paragraph of the requested charge is taken from the definitions in the animal cruelty statute. Seeid. § 42.092(a)(4). The second paragraph is included in the definition of “abandon.” Seeid. § 42.092(a)(1).
*10 The misdemeanor subsection (b)(3) provides that a person commits an offense by failing “unreasonably to provide necessary food, water, care, or shelter for an animal in the person's custody.” Custody, as defined in the statute, is an element of the misdemeanor subsection (b)(3), and, as such, even if appellant were charged under subsection (b)(3), which she was not, the second paragraph of the requested charge would be an improper comment on the weight of the evidence.SeeGiesberg, 984 S.W.2d at 248.
Because appellant was not charged under subsection (b)(3), but under subsection (b)(1), which does not mention custody, the statutory definition of custody in the first paragraph of the requested charge was not required. “The better charging practice is to limit the definitional paragraphs [as was done here] to the portions of the statute applicable to the allegations in the indictment.” Lewis v. State, 676 S.W.2d 136, 143 (Tex.Crim.App.1984).
Appellant's strategy at trial was to assert that Kimberly Paskert, not she, killed the animals. This attempt at shifting culpability to a third party is essentially an alibi defense. SeeMcGregor v. State, 394 S.W.3d 90, 123–24 (Tex.App.–Houston [1st Dist.] 2012, pet. ref'd) (by requesting third-party-culpability issues defendant “is essentially raising the defense of alibi”). Charges on defensive issues raising alibi are not proper because they are an improper comment on the weight of the evidence. Giesberg,984 S.W.2d at 248–50; McGregor, 394 S.W.3d at 124. As such, the trial court properly denied appellant's requested defensive issues relating to custody.
In her sixth issue on appeal, appellant contends that she was “deprived of due process and due course of law by the State's conduct in this case.” The Due Process Clause of the Fourteenth Amendment provides that no State may “deprive any person of life, liberty, or property, without due process of law[.]” SeeU.S. CONST. amend. XIV, § 1. Similarly, the Texas Constitution provides that “[n]o citizen of this State shall be deprived of life, liberty, property, privileges or immunities ... except by the due course of the law of the land.” TEX. CONST. art. I, § 19. “The touchstone of due process is fundamental fairness.” Euler v. State, 218 S.W.3d 88, 91 (Tex.Crim.App.2007).
Again, appellant's issue is based on the assumption that the case was wrongly charged as a felony and that her defensive issues were erroneously excluded. We have already held to the contrary on both issues. Further, we note that even if the State's attempts to include lesser-included offenses at the last minute were somehow unfair, the trial court, at appellant's request, did not include any lesser-included offenses in the jury charge.
Accordingly, we overrule issue six.
Due to the publicity in Galveston surrounding this case, appellant moved to sequester the jury pursuant to TEX. CODE CRIM. PROC. ANN. art. 35.23 (Vernon 2006). The trial court granted the motion. Accordingly, the bailiff accompanied the jury to a local hotel room at approximately 11 p.m. on December 19, 2012. Approximately four hours later, around 2 a.m., a bomb threat was phoned in to the hotel, and the hotel was evacuated. The bailiffs took the jurors outside to their van. While leaving the hotel, the jurors overheard other people at the hotel discussing the bomb threat; no one spoke to the jurors directly.
*11 The bailiffs took the jurors to another hotel, but did not check them in because the hotel was unable to accommodate all of the jurors on the same floor. Some of the jurors told the bailiffs that they would feel safer at the courthouse, so the bailiffs returned the jury to the courthouse at 3:15 a.m. The jury was kept together in the deliberation room, where they were permitted to sleep on the floor. At 7:30 a.m., the bailiffs took the jurors back to their original hotel to collect their belongings and then took them to breakfast. The jurors then returned to the courthouse to resume their deliberations.
After one of the bailiffs testified to these events, appellant moved for a mistrial, which the State did not oppose. The trial court denied the motion, the jury resumed its deliberations, and appellant was ultimately convicted.
A mistrial is appropriate only in extreme circumstances for a narrow class of highly prejudicial and incurable errors. Ocon v. State, 284 S.W.3d 880, 884 (Tex.Crim.App.2009). We review a trial court's denial of a motion for mistrial for an abuse of discretion. Wead v. State, 129 S.W.3d 126, 129 (Tex.Crim.App.2004); Juarez v. State, 409 S.W.3d 156, 166 (Tex.App.–Houston [1st Dist.] 2013, pet. ref'd). Whether a mistrial is required depends on the particular facts of the case. Ocon, 284 S.W.3d at 884.
Similarly, we review a trial court's rulings on a motion for new trial for an abuse of discretion. SeeHolden v. State, 201 S.W.3d 761, 763 (Tex.Crim.App.2006). In conducting our review, we may not substitute our judgment for that of the trial court. Id.Rather, we decide only whether the trial court's decision was arbitrary or unreasonable. Id. A trial court abuses its discretion in denying a motion for new trial only when no reasonable view of the record could support the trial court's ruling. Id.
*12 The State contends that, even if we assume a violation of section 35.23 occurred, the error is harmless. We agree. Error, if any, in failing to properly sequester the jury is a statutory violation, not a constitutional violation. Campbell v. State, 189 S.W.3d 822, 826 (Tex.App.–Houston [1st Dist.] 2006, no pet.); see alsoRojas v. State, 986 S.W.2d 241, 252 (Tex.Crim.App.1998)(Keller, J., concurring). As such, any non-constitutional error that does not affect appellant's substantial rights must be disregarded. Id.; TEX. R. APP. P. 44.2(b). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997). We will not overturn a criminal conviction for non-constitutional error if, after examining the record as a whole, we have fair assurance that the error did not influence the jury, or had but a slight effect on its verdict. SeeBarshaw v. State, 342 S.W.3d 91, 93 (Tex.Crim.App.2011).
Nothing in the record, however, supports appellant's assertions. The record shows that the jury was kept together at all times during the evacuation. And, while they were generally aware of a bomb threat at the hotel from overhearing others in the area, no information was given to the jury directly by third parties, and nothing supports the conclusion that the jury attributed the bomb threat to appellant. Indeed, the bailiff, Sergeant Elizondo, who was with the jury on the night in question, testified that the jurors were doing “surprisingly” well and were not in “any particular distress” over the bomb threat. He added that he had not noticed any desire by the jury to discontinue their deliberations. As such, we conclude that appellant's substantial rights were not affected by returning the jury to the deliberation room a few hours early in light of the situation presented at their hotel.
We overrule issues seven and eight.
The court may adjourn veniremen to any day of the term. When jurors have been sworn in a felony case, the court may, at its discretion, permit the jurors to separate until the court has given its charge to the jury.The court on its own motion may and on the motion of either party shall, after having given its charge to the jury, order that the jury not be allowed to separate, after which the jury shall be kept together, and not permitted to separate except to the extent of housing female jurors separate and apart from male jurors, until a verdict has been rendered or the jury finally discharged. Any person who makes known to the jury which party made the motion not to allow separation of the jury shall be punished for contempt of court. If such jurors are kept overnight, facilities shall be provided for female jurors separate and apart from the facilities provided for male jurors. In misdemeanor cases the court may, at its discretion, permit the jurors to separate at any time before the verdict. In any case in which the jury is permitted to separate, the court shall first give the jurors proper instructions with regard to their conduct as jurors when so separated. (Emphasis added).