Attorney Kevin R. Martin is the only Register Nurse and AV Rated Preeminent personal injury lawyer in the State of Wisconsin. Less than 4% of attorneys throughout the country receive dual board certification and less than 5% of attorneys throughout the country achieve AV Rating. The combined expertise in personal injury law and medicine provides the clients of Martin Law Office, S.C. with unparalleled representation.
As a health care provider, Kevin worked in both the hospital and nursing home settings. No attorney can match Kevin’s combination of medical and legal expertise.
Kevin received a Bachelor’s of Science in Nursing, with honors, from Concordia University Wisconsin. As a practicing registered nurse, Kevin specialized in cardiovascular and medical-surgical intensive care. He draws upon his nursing experience and medical knowledge to provide his personal injury clients with unparalleled representation.
Kevin continues to maintain his license as a registered nurse. For over a decade, Kevin taught countless nursing students as an adjunct professor of nursing at Concordia. Kevin taught nurses throughout southeastern Wisconsin in both classrooms and hospitals about the legal aspects of nursing care, including standards of care, assessment errors and medication errors.
Throughout his career, Kevin has represented clients in personal injury law. He’s helped countless people injured by automobile accidents, motorcycle accidents, trucking accidents, medical malpractice, nursing negligence, nursing home negligence, slip and falls (premises liability), unsafe products (product liability) and insurance disputes, including wrongful denial of benefits governed by State law and ERISA-covered insurance plans. Kevin has enabled clients to recover their medical expenses, lost wages and human damages known as pain, suffering, disability and disfigurement.
Domnitz, Mawicke & Goisman, S.C.
Nursing Malpractice – Foundation, Application and Prevention: Concordia University Wisconsin; School of Nursing – Bachelors of Science in Nursing (Traditional Program) (2002 – 2013).
Malpractice Issues for the Occupational Therapist: Concordia University Wisconsin (2004 – 2010).
Legal Issues and Licensure for the Advanced Practice Nurse: Concordia University Wisconsin; School of Nursing – Masters of Science in Nursing (2005 – 2013).
Avoiding Nursing Malpractice: Concordia University Wisconsin Nursing Honor Society Annual Reception (Keynote Speaker); Mequon, WI; October 2006.
Medical Liability: St. Joseph’s Regional Medical Center Perinatal Grand Rounds (Keynote Speaker); Milwaukee, WI; December 2006.
Developing Medical Illustrations for Trial: Wisconsin Association for Justice, Paralegal Section, Winter Seminar; Milwaukee, WI; December 2008.
Preparing Medical Records for Use at Deposition and Trial: Wisconsin Association for Justice, Paralegal Section, Winter Seminar; Milwaukee, WI; December 2009.
The Reptile, The Economist and Judge Richard Posner: Thinking and speaking conservative during opening statements and closing argument; Wisconsin Association for Justice; Madison, WI; Fall Seminar, October 2012.
Motor Vehicle Accidents During Pregnancy: Special considerations; State Bar of Wisconsin; Madison, WI; December 2012.
Selecting a Safe Nursing Home; Seminar on Long Term Care; Oak Creek, WI; February 2013.
Wisconsin Jury Symposium (Chair); State Bar of Wisconsin; Madison, WI; Moderator of Judicial Panel Discussion on Issues Commonly Seen During Jury Trials; September 6, 2013.
Conducting Post-Trial Juror Interviews; State Bar of Wisconsin; Wisconsin Jury Symposium; Madison, WI; September 6, 2013.
Wrongful Death Claims: Navigating the Intersection of Tort and Probate Law; State Bar of Wisconsin; Madison, WI; October 3, 2013.
Nursing Law and Liability; Bryant and Stratton College, Section of Nursing; Milwaukee, WI; October 23, 2013.
Medical Malpractice Case Study: From intake to settlement; Wisconsin Association for Justice, Paralegal Section, Winter Seminar; December 6, 2013.
The Mechanics of Cervical Spine Injury in a Motor Vehicle Accident; State Bar of Wisconsin; Madison, WI; December 13, 2013.
Advanced Deposition Techniques; McHenry County Bar Association; Elkhart Lake, WI; April 25, 2014.
ERISA Subrogation: Issues for the plaintiff’s lawyer; State Bar of Wisconsin; June 16, 2016.
Wisconsin Jury Symposium II (Chair); State Bar of Wisconsin; Waukesha, WI; Moderator of Judicial Panel Discussion on Issues Commonly Seen During Jury Trials; September 29, 2016.
ERISA Subrogation; Wisconsin Association for Justice, Fall Seminar; October 21, 2016.
Medical Discovery Basics for UM/UIM Cases; NBI Seminar; December 6, 2017.
Cybersecurity and Law Firms in 2017; Wisconsin Association for Justice Winter Seminar; December 15, 2017.
Litigating the Car Crash Case with a Plaintiff with Pre-Existing Injuries; State Bar of Wisconsin; January 18, 2018.
Shortages and Mistreatment – Advantage RN, 11 NURSING MATTERS 2 (April 2002) (editorial).
2002 Supplement – Jury Selection, WISCONSIN TRIAL PRACTICE (1998).
If Sensenbrenner Has His Way, Greedy Insurers Will Win, OZAUKEE PRESS, April 3, 2003 at 3A (editorial).
2004 Supplement – Jury Selection, WISCONSIN TRIAL PRACTICE (1998).
2004 Supplement – Medical Examinations, WISCONSIN DISCOVERY LAW (1998).
The Paralegal’s Role in Managing the Subrogated Claim; THE VERDICT (SUMMER 2006).
Does Wis. Stat. § 628.46 Interest Apply to Self-Insured Retainers?; THE VERDICT (Summer / Fall 2012).
Preparing the Retained and Treating Expert Witness for Deposition; THE VERDICT (Summer 2014).
Subrogation Rights And The Employment Retirement Income Security Act: Part one: History of ERISA, THE VERDICT (Summer 2015).
Subrogation And The Employee Retirement Security Act: Part two: Identifying Plans Covered by ERISA, THE VERDICT (Fall 2015).
Subrogation And The Employee Retirement Security Act: Parts three and four: Managing ERISA-covered subrogation liens pre-suit and during litigation, THE VERDICT (Winter 2015).
Kevin R. Martin and Drew J. DeVinney, Nursing Home Litigation in the Wake of the Injunction on CMS’s Arbitration Ban, THE VERDICT (Winter 2017).
Jacques, et al. v. Zurich American Ins. Co., et al.
Ms. Jacques was exiting a local restaurant when she slipped and fell on a puddle of water that was created by an employee of the restaurant and not dried. As a result, Ms. Jacques fractured her left arm. This case was settled without a trial for $130,500.00. This result was published in the Wisconsin Law Journal on July 23, 2012.
Lopez, et al. v. American Family Mut. Ins. Co., et al.
Michelle was injured in a motor vehicle accident when a driver ran a red light causing Michelle’s vehicle to t-bone the other car. Michelle put her hands up to brace for impact and the airbags deployed in her hands. Michelle’s wrists were hurt, but the extent of her injuries did not become known until nearly a year after the accident. During that first year, Michelle tried to work in her profession as an aesthetician but struggled because of the pain in her wrists. When medications and therapy failed to stop the pain, Michelle had an MRI that revealed damage to her cartilage and ligaments. Over the next 18 months, Michelle needed four surgeries to correct the damage to her wrists. During this time, she was without work despite applying for any job that would help her family. The insurance company hired a doctor to say that Michelle’s injuries were because of her work as an aesthetician. Michelle’s treating surgeon said that the injuries were due to the accident.
The jury agreed with Michelle and her doctor and told the insurance company that they were responsible for paying Michelle’s $82,000 in past medical expenses; $121,000 in past lost wages; $80,000 so Michelle could be retained in a new career; $125,000 for past pain, suffering and disability; and $62,000 for future pain, suffering and disability. The total verdict was $470,000. Kevin held Michelle’s hand as she cried tears of relief when the verdict was being read. Many of the jurors hugged Michelle after the case and gave her best wishes for her future.
This result was published in the Wisconsin Law Journal on December 6, 2011.
Shirley was admitted to a local hospital with dehydration. After recovering, Shirley was ready to be discharged home. After Shirley had been seated in a wheelchair and while her husband was waiting in the car, a nurse pulled out the central venous catheter that was used to provide her with intravenous fluids. The nurse pulled the catheter out while Shirley was sitting in a wheelchair and in a whip-like fashion. This is not the way nurse are taught to remove these types of catheters because of the potential for injury.
Immediately upon the catheter being removed, Shirley stood up and suffered a stroke in her daughter’s arms. Shirley died a few days later from the stroke, leaving behind her husband Ralph of over 50 years.
The case was filed in Waukesha County with Kevin as the family’s attorney and settled for $466,000. This included an award for the Ralph’s lost society and companionship (known as the wrongful death claim), Shirley’s human damages (known as her pain, suffering and disability), and Shirley’s medical and funeral bills. Part of this money was used to reimburse Medicare as it was the hospital’s negligence that caused Shirley to incur $73,000 in medical expenses and the taxpayers should not have to be responsible for paying those bills.
This case was published in the Wisconsin Law Journal on December 6, 2011.
Schlichting, et al v. Amco Ins. Co., et al.
Don was returning home after watching a movie. For the trip home, Don was riding his motorcycle, wearing both a helmet and safety glasses. At the intersection of Racine Ave. and Apollo Dr. in Muskego, just blocks from Don’s home, a man driving an SUV with a boat in tow failed to yield the right of way to Don by turning into Don’s path. Don collided with the passenger side of the SUV, slid down the side of the SUV, collided with the boat, slid down the side of the boat and came to rest on the pavement at the end of the boat. Don was taken from the scene by Flight for Life to Froedtert Hospital where he was diagnosed with bleeding in his brain, multiple facial fractures, multiple facial lacerations, severe damage to his left eye including paralysis of his iris, two fractured teeth, a fractured left clavicle and multiple burns and abrasions. The injury to Don’s left eye was permanent as was the scarring from the burns.
The insurance company attempted to settle the case with a low ball offer. Don’s case went to trial in Waukesha County in April 2011 with Kevin as his attorney. The jury sided with Don and his treating physicians by awarding him $68,640 in past medical expenses; $60,000 in future medical expenses for treatment for his eye and scars; $8,499 in past wage loss; $250,000 for human damages known as pain, suffering, disability and disfigurement; and $100,000 for human damages known as pain, suffering, disability and disfigurement. The jury also awarded Don’s wife $75,800 for past loss of consortium (the negative impact the injuries had on their marriage) and $14,200 for the nursing services she provided to Don while he was at home.
Because of the insurance company’s delay in timely paying Don’s claim, $76,271 was added for costs and interest. The total award was $653,412.
This case was published in the Wisconsin Law Journal on May 18, 2011.
Frye, et al. v. Liberty Mutual Fire Ins. Co., et al.
Frank went to the Sports Show at State Fair Park with his brother and friends. Frank was enjoying his semi-retirement (he worked part time as a driver for a local car dealership). On the way home, Frank’s vehicle was rear-ended by a driver who was simply not paying attention. As a result of the collision, Frank suffering injuries to his cervical spine (neck) and lumbar spine (low back). Frank needed 3 surgeries to correct the injuries to his spine.
The insurance company attempted to settle the case with a low ball offer. Frank’s case was filed in Milwaukee County with Kevin representing him. Prior to trial, the case settled for $425,000. Part of this money was used to reimburse Medicare as it was the driver’s negligence that caused Frank to incur over $100,000 in medical bills and the taxpayers should not have to be responsible for paying those bills.
This case was published in the Wisconsin Law Journal on September 14, 2010.
Pendleton, et al. v. American Family Mut. Ins. Co., et al.
Bernadette was driving to her hair appointment when an unlicensed driver failed to yield the right of way to her at an intersection by turning left in her path. The vehicles collided corner to corner. Prior to this collision, Bernadette suffered from a long history of back pain. Because of this history, Bernadette was more susceptible to being injured in an automobile collision. Bernadette injured her back and needed non-surgical treatment to get back to her baseline.
The insurance company attempted to settle the case with a low ball offer. Bernadette’s case was filed in Racine County with Kevin representing her. The case was tried to a jury in September 2009. The jury sided with Bernadette and awarded her past medical expenses, her past lost wages and for human damages known as pain, suffering, disability and disfigurement.
One of the most memorable parts of this case was the huge hug Bernadette gave Kevin after the verdict was read. Bernadette used part of the money to reimburse her health insurance company.This case was published in the Wisconsin Law Journal in November 2009.
This case also resulted in a letter sent by the foreman expressing his admiration of Kevin’s trial advocacy.
This story was about a client that Kevin represented who was injured at a Milwaukee hospital as a result of receiving an overdose of Pitocin during labor and delivery. During this interview, Kevin explained the importance of the lawsuit in order to hold the hospital accountable for his client’s medical bills, rather than the taxpayers.
“Hip Replacement Lawsuits Build,” Wisconsin Law Journal, October 15, 2010This story came as the truth of DePuy ASR metal-on-metal implants came to light. During this interview, Kevin drew on his experience in representing individuals who suffered from heart attacks and strokes due to the drug Vioxx in explaining how the DePuy cases would likely proceed in the complex field of mass torts in Multi-District Litigation. Kevin explained the pros and cons to having these types of cases filed in Multi-District Litigation court versus state court and what happens once the cases are filed in Multi-District Litigation courts.
“Total Recall,” Wisconsin Law Journal, January 10, 2011This story was about the burden defective products put on individuals who are injured by them. Drawing on his experience in representing clients in Vioxx cases, Kevin explained the law relative to the statute of limitations, the deadline for filing a lawsuit, on these types of cases.
This story was about an 84-year old man that Kevin represented because of injuries he suffered as a result of a supposedly burst resistant exercise ball bursting as he used it, causing him to fracture his back. The story focused on the frustration the man and his wife had in dealing with the health club and manufacturer of the ball without legal representation. In the story, Kevin explained about the real possibility and danger of companies and insurance companies dragging out litigation in the hopes that the elderly victim will die before the case is resolved. With Kevin’s representation, the judge provided short deadlines in recognition of the man’s age. The case settled without a trial.
“Joining the Hip Recall Fight,” Wisconsin Law Journal, April 11, 2011This story was about the ongoing battle with DePuy and its defective metal-on-metal hip implants. Kevin served as the lead attorney in this story, explaining the growing number of claims against DePuy, the importance of timely managing those claims, and the likely course the claims were going to take in the complex field of mass torts that are in Multi-District Litigation courts. This story also highlighted Kevin’s successful representation of individuals who suffered heart attacks and strokes as a result of the drug Vioxx.
“[Hospital] Hit with Lawsuit… Over Death,” The Business Journal, June 3, 2011This story was about Shirley Mueller, a patient at St. Luke’s who died because a nurse negligently removed a central venous line. During the interview, Kevin drew on his knowledge of medicine and anatomy and physiology to teach the reporter how these catheters work and why they are used.
“Clients Pay More For Medical Records Under Budget Provision,” Wisconsin Law Journal, August 23, 2011This story was about the impact the 2011-2013 state budget had on the cost of allowing injured individuals to obtain their medical records. Serving as the lead attorney in the story, Kevin explained how the increased costs in receiving medical records were placing a further burden on individuals who were already suffering from lost wages and mounting medical bills.
“Warning Signs: Bill would provide obstacle in mass tort cases,” Wisconsin Law Journal, October 21, 2011This story was about the draconian legislation that was pending in the Wisconsin legislature that would curb the rights of women injured by Transvaginal Mesh products. Kevin served as the lead attorney in this story, explaining how the proposed legislation could potentially eliminate a woman’s right to recover from the manufacturer of these defective products. Using his nursing background, Kevin taught the reporter from the Wisconsin Law Journal about Transvaginal Mesh Implants, how they were defectively designed and how they were injuring women. Fortunately, after the story was published, the legislation never made its way out of committee and was never passed.
“Answering the Siren Call of Solo Practice,” Wisconsin Law Journal, April 23, 2012Kevin was interviewed by the Wisconsin Law Journal relative to the trials and tribulations of opening a law practice. Specifically, Kevin discussed the opening of Martin Law Office, S.C. after climbing the ladder of associate to partner to shareholder at a larger personal injury law firm.
“Martin Law Office sets up benefit fund for business involved in Sikh Temple,” Wisconsin Law Journal, August 21, 2012.Kevin was interviewed about the benefit fund established by Martin Law Office, S.C. to help a local business that was shut down for 2 days and gave everything it could because of the Sikh Temple shooting.
“Fox 6 Investigators: Nurse who dropped quad patient telling his side of the story,” Fox 6 News, October 23, 2012This story involved Dennis Chartier, Jr. (“DJ”), who survived a lightning strike and quadriplegia. Kevin represents DJ’s estate and his mother. During the interview, Kevin drew on his experience as an attorney, registered nurse and lecturer to nurses throughout Wisconsin to explain the importance of safe in-home patient care and the need to report incidents to the patient’s caregiver.
“Once on life support, ‘I’m Sorry’ bill gets another chance,” Wisconsin Law Journal, April 19, 2013This story involved a proposed bill to render inadmissible an apology and admission of fault by a physician to a patient. Given his background as an attorney who represents plaintiffs in medical malpractice cases and as a registered nurse, Kevin served as the lead attorney in opposing part of this bill. Kevin explained that there is a difference between “I’m sorry” and “It’s my fault.” Rendering inadmissible an apology opens lines of communication between a physician and a patient; however rendering inadmissible an admission of fault would violate the Wisconsin evidentiary code.
“Mom says $1.1M award is ‘justice’ for dead son,” Fox 6 News, October 2, 2013This was the closing story on the case involving DJ Chartier, a quadriplegic man who died from nursing malpractice. Kevin tried the case and the judge determined that the nursing malpractice caused $1.13 million in damages, including $700,000 for 7 days of pain and suffering, $350,000 for wrongful death (the mother’s loss of society and companionship) and more than $80,000 for medical expenses.
“Man wants city to pay $3.5 million for improper police interrogation,” Milwaukee Journal Sentinel, September 4, 2014.
Eddie Gill was a cognitively impaired man who was near the scene of a homicide. In the days following the incident, Mr. Gill voluntarily presented to the Milwaukee Police Department to provide his knowledge of the incident. Five detectives over the next three days interrogated Mr. Gill. After denying that he committed any crime over 100 times and after his repeated requests for counsel were ignored, Mr. Gill signed a coerced confession. Mr. Gill spent the next year incarcerated for a crime he did not commit. The Milwaukee Police took over one year to file a witness report that exculpated Mr. Gill because of “work load.” The judge presiding over the criminal hearing called the actions of the Milwaukee Police Department “egregious”.


text:
The Complainant is Convergys Corporation, Cincinnati, United States of America, represented by Frost Brown Todd LLC, United States of America.
The Respondent is Roshni Sohail, Dubai, United Arab Emirates.
The disputed domain name <convergs.com> is registered with Melbourne IT trading as Internet Names Worldwide.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 11, 2006. On January 12, 2006, the Center transmitted by email to Melbourne IT trading as Internet Names Worldwide a request for registrar verification in connection with the domain name at issue. On January 16, 2006, Melbourne IT trading as Internet Names Worldwide transmitted by email to the Center its verification response. 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 January 17, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was February 6, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 8, 2006.
The Center appointed Ian Blackshaw as the Sole Panelist in this matter on February 13, 2006. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
The Complainant is the leading provider of integrated customer care and billing solutions in the world, serving top companies in communications, financial services, technology, employee care and other industries in more than 60 countries. The Complainant employs over 66,000 people in contact centers, data centers and offices in the United States, Canada, Latin America, Europe, the Middle East and Asia. And, in 2004, its revenues topped $2.5 billion.
The Complainant, by itself and through its licensed affiliates and subsidiaries, has used the trademark, CONVERGYS, the subject of the present Complaint, since its inception in 1998. This mark consists of a coined term with no common meaning.
“Employee relations information services; payroll preparations; administration of business payroll for others; employment counseling and recruiting; employment hiring, recruiting, placement, staffing and career networking services; employment outplacement services, record management; business management planning; business planning” in Class 35.
CONVERGYS—Registration No. 584/84 (Kingdom of Saudi Arabia), registered August 26, 2001, for “Scientific, nautical, surveying, electric, photographic, cinematographic, optical, weighing, measuring, signaling, checking (supervision), life-saving and teaching apparatus and instruments; apparatus for recording, transmission or reproduction of sound or images; magnetic data carriers, recording discs; automatic vending machines and mechanisms for coin-operated apparatus; cash registers, calculating machines, data processing equipment and computers; fire-extinguishing apparatus” in Class 9.
CONVERGYS—Registration No. 595/65 (Kingdom of Saudi Arabia), registered November 4, 2001, for “Advertising; business management; business administration; office functions, the bringing together, for the benefit of others, of a variety of goods (excluding the transport thereof), enabling customers to conveniently view and purchase those goods, all services included” in Class 35.
CONVERGYS—Registration No. 589/21 (Kingdom of Saudi Arabia), registered September 24, 2001, for “Computer services, namely e-mail response services; telecommunication message processing services provided by means of a world wide computer network; e-mail, voicemail, cellular telephone, long-distance telephone, facsimile transmission; cellular telephone communication services” in Class 38.
CONVERGYS—Registration No. 595/66 (Kingdom of Saudi Arabia), registered November 4, 2001, for “Providing of food and drink; temporary accommodation; medical, hygienic and beauty care; veterinary and agricultural services; legal services; scientific and industrial research; computer programming; services that cannot be placed in other classes, custom computer system analysis, design and development; computer software design services and consulting services relating thereto” in Class 42.
CONVERGYS—Registration No. 2001 02935 (Republic of Turkey), registered February 15, 2001, for “Computer software programs; namely programs for producing telephone system reports” in Class 9.
“Custom computer system analysis, design and development; computer software design services and consulting services relating thereto” in Class 42.
“Pre-employment background screening” in Class 45.
Copies of the corresponding Registration Certificates have been provided to the Panel.
The Complainant promotes its mark CONVERGYS globally through advertising in trade magazines, at trade shows and on the Internet; through press releases; and through co-promotions with other companies. The Complainant spends annually over $8 million on advertising and promoting its services under its mark CONVERGYS.
In addition, the Complainant owns over 70 registrations for domain names incorporating the word Convergys. A non-exhaustive schedule of these domain names has been provide to the Panel. The primary website of the Complainant is accessible in English, French, German, Italian, Portuguese and Spanish; and has received more than 61 million visitors worldwide during the last 6 months. A copy of the Internet traffic history of the Complainant’s website “convergys.com” has been provided to the Panel.
In October 2005, the Complainant became aware that the Respondent had registered the domain name at issue. Upon further investigation, the Complainant discovered that the Respondent has a history of searching lists of domain names that are about to expire, and then buys those domains that the Respondent suspects will generate significant Internet traffic, based on the similarity of the domain names of legitimate sites. The Respondent registered the domain name at issue, namely <convergs.com>, a common misspelling of the Complainant’s name “Convergys” one day after it appeared on an expired domains’ list.
On November 7, 2005, the Outside Counsel of the Complainant sent the Respondent a letter via e-mail and regular mail demanding that the Respondent cease using the domain name at issue and transfer it to the Complainant. A copy of this letter has been provided to the Panel.
On November 9, 2005, the Respondent stated in reply, amongst other things, that “we are not a big company but we do not want to lose the domain for nothing. We have been working on a project involving this domain”. A copy of this reply has been provided to the Panel.
On November 15, 2005, the Complainant’s Counsel demanded by letter once again that the Respondent either cancel the ownership of the domain name at issue or agree to assign it to the Complainant. A copy of this letter has been provided to the Panel.
On December 5, 2005, the Respondent replied by e-mail as follows: “I do understand that your client is big corporate and you could win this case at ICANN. It would cost you 1600 United States dollars for an ICANN case. I am willing to co-operate and transfer this domain to you. Can you at least compensate us for our efforts and our domain reg cost etc?” A copy of this e-mail has been provided to the Panel.
On December 21, 2005, the Complainant’s Counsel reiterated by e-mail the demand that the Respondent, having no legitimate ownership interest in the domain name at issue, either cancel ownership of the domain name or agree to assign it to the Complainant. A copy of this e-mail has been provided to the Panel.
Since then, the Complainant’s Counsel has not received any reply from the Respondent.
Convergys is a coined word having no meaning apart from its use as Complainant’s trademark. Coined terms with no common meaning enjoy the strongest protection accorded a trademark.
The second-level domain of Respondent’s <convergs.com> domain name is virtually identical to Complainant’s coined mark CONVERGYS. The domain names differ from Complainant’s trademark by only one letter: the deletion of the letter “y”. Clearly, as supported by the examples in Annex 9, “convergs” is a common misspelling or a foreseeable mistyping of “Convergys”, especially for one unfamiliar with Complainant’s website or unsure of the proper spelling of Complainant’s name.
The addition of the generic top-level domain (gTLD) “.com” is without legal significance from the standpoint of comparing the disputed domain name to Convergys since use of a gTLD is required of domain name registrants.
Complainant respectfully submits that it has established confusing similarity, the first element of its claim.
Complainant’s use of its CONVERGYS trademark predates Respondent’s registration of the <convergs.com> domain name. Complainant is the only entity with rights in this coined mark.
Respondent has no legitimate interest in the <convergs.com> domain name. Respondent is not a licensee of, or otherwise currently affiliated with, Convergys. Respondent’s name does not include the word “Convergys” and Respondent’s business has nothing to do with the links relating to the products and services currently located on the “convergs.com” domain, other than Respondent profits, in bad faith, from misdirecting those searching for information on Convergys to those competitive links.
Because there is no legitimate reason for Respondent to have chosen Complainant’s coined trademark for Respondent’s second-level domain, Complainant has established the second element of its claim.
Respondent registered the <convergs.com> domain name in an effort to capitalize on the recognition of the CONVERGYS mark by those seeking outsourced customer care, human resources, and billing services, and to capitalize from the misdirected traffic resulting from the foreseeable typographical errors made by persons seeking to go to the “www.convergys.com” website.
The multiple sponsored links on the “www.convergs.com” website clearly demonstrate that Respondent set up the website to make money by trading on the CONVERGYS marks. A printout of the “www.convergs.com” website has been provided to the Panel.
Clicking on the “Inquire about this domain” link at the upper right corner of the “www.convergs.com” website leads to a page from “domainsponsor.com” where one can make an offer to purchase the <convergs.com> domain name. A printout of the Domain Sponsor page has been provided to the Panel.
Included in the “Popular Categories” links on the <convergs.com> domain name are links entitled “Convergys”, “Payroll Dept For Convergys”, and “Human Resources”,– all links that refer to or relate to Convergys or its business, but none of which actually take the user to the “www.convergys.com” website.
Indeed, following the “Convergys” link leads viewers to a page with many sponsored links relating to both Convergys and some of its competitors, but none of the links that directly reference Complainant’s Convergys website or business actually take the user to the “convergys.com” website. A printout of this page has been provided to the Panel.
Clicking on the back button returns a user to the first page of Respondent’s “www.convergs.com” website, and also causes a new web page to pop up entitled “Try some of these similar categories!” Clicking on the “Convergys” link on this pop up page leads viewers to the same page, which has multiple links referencing both Convergys and some of its competitors. This pop up page has been provided to the Panel.
Clicking on the “Payroll Dept For Convergys” link leads viewers to a page containing only links to Convergys’ competitors. Clicking on the back button returns a user to the first page of Respondent’s “www.convergs.com” website, and also causes the appearance of the “Try some of these similar categories!” pop up page. Following the Convergys link on that pop up page leads the now-trapped viewer to the same page, which provides links that reference both Convergys and some of its competitors, but with no way to actually get to Complainant’s website. A printout of the “Payroll Dept. For Convergys” page has been provided to the Panel.
Each of the pages reached from the <convergs.com> domain name by clicking a “popular category” link contains “sponsored links”. Respondent makes money every time a lost Internet user follows one of those links. However, none of those links will send the user to the Convergys website, the entity being sought by those lost browsers.
Respondent’s website at “www.convergs.com” was generated, in part, by the Domain Sponsor service. This service customizes web pages to include special sponsored links to products relevant to what the browsers on that site have been looking for. Obviously, browsers at the “www.convergs.com” website have been looking for information about Convergys products and services. Instead of reaching the desired website, those users are misdirected by Respondent, through the use of Domain Sponsor, to Convergys’ competitors and to others who are willing to pay Respondent for the additional traffic. This business model, including the use of “mouse trapping” as described above, is the epitome of bad faith registration and use.
Indeed, as noted in Convergys Corporation v. Juan de la Cruz, WIPO Case No. D2002-0159, “For a distinctive, and apparently unique, name like Convergys, the panelist considers that any such use by a party unconnected with the owner of rights in the name would inevitably cause confusion and potential damage”.
Respondent has registered and is using the <convergs.com> domain name in bad faith to benefit from misdirected traffic in search of information on Convergys and its products and services. Respondent has tailored virtually all of the site to contain links to products and services in competition with Convergys. Respondent directly profits from the traffic he intentionally misdirects.
Respondent’s use of the <convergs.com> domain name to capture customers of Convergys who are seeking Convergys products and services is neither a legitimate, nor good faith, use of this domain. Using a domain name to intentionally attract, for commercial gain, Internet users to a website by creating confusion with a complainant’s mark is evidence of bad faith registration under the Policy, paragraph 4(b)(iv). See also Adobe Systems Incorporated v. Domain OZ, WIPO Case No. D2000-0057.
As noted in American Girl, LLC v. Nameview, Inc., 381 F.Supp.2d 876, 879 No. 1, “typosquatting” is the bad faith act of using “misspellings or variations of legitimate domain names in order to trick individuals into viewing unrelated advertisements or websites. Typosquatting is profitable because a website with a domain consisting of a common misspelling of a famous trademark generates Internet traffic and, therefore, advertising revenue”.
Respondent clearly registered the <convergs.com> domain name to typosquat upon the Convergys marks and Convergys’ official website at “www.convergys.com” through which it conducts a significant amount of business.
Because Complainant’s CONVERGYS trademark is a coined mark, because this mark is heavily promoted throughout the world, and because Complainant owns domain name registrations for this mark with other gTLDs, Respondent should have been aware of Complainant’s trademark when Respondent registered the <convergs.com> domain name.
Respondent has indicated, both on his website and by email to Complainant’s representative, that he intends to sell the <convergs.com> domain name for valuable consideration in excess of out-of-pocket expenses. Indeed, it is now clear that Respondent chose this domain for that very purpose.
Because Respondent knew of Complainant’s rights, because Respondent is making no legitimate use of the domain name, and because Respondent is attempting to sell a domain name consisting of Complainant’s coined trademark for an amount in excess of his expenses, Complainant has established Respondent’s bad faith, the third element of its claim.
In previous UDRP cases in which the respondent failed to file a response, the panel’s decisions were based upon the complainant’s assertions and evidence, as well as inferences drawn from the respondent’s failure to reply. See The Vanguard Group, Inc. v. Lorna Kang, WIPO Case No. D2002-1064; and also Köstritzer Schwarzbierbrauerei v. Macros-Telekom Corp, WIPO Case No. D2001-0936.
Nevertheless, the Panel must not decide in the Complainant’s favor solely based on the Respondent’s default (Cortefiel S.A. v. Miguel García Quintas, WIPO Case No. D2000-0140). The Panel must decide whether the Complainant has introduced elements of proof, which allow the Panel to conclude that its allegations are true.
The domain name at issue incorporates essentially the trademark CONVERGYS, which is owned and has been commercially used and promoted globally by the Complainant in and for the purposes of its business and the sale of its products as a trademark since it commenced operations in 1998. Although the domain name at issue is not identical in spelling, lacking only the single letter ‘Y’, this, in the view of the Panel, makes no difference. Indeed, the Panel accepts the Complainant’s contention that, phonetically speaking, the words ‘convergys’ and ‘convergs’ sound the same. And, in view of this, the Panel agrees with the Complainant that misspelling of a coined word, such as ‘convergys’, on the part of an Internet user may well occur when seeking to access the Complainant’s website. Furthermore, the Complainant has adduced evidence of examples of such misspellings in commercial practice. The Panel also accepts and recognizes that the Complainant’s trademark CONVERGYS is well known in respect of the range of products and services which it identifies. Thus, there is a clear misuse on the part of the Respondent of the Complainant’s trademark, and such use is also in breach of the Policy.
The Panel further agrees with the Complainant’s contention that the addition of the generic top-level domain “.com” is also without any legal import on the question of similarity. Thus, the domain name at issue, if not identical, is certainly confusingly similar.
In view of this, the Panel finds that the domain name registered by the Respondent is identical or confusingly similar to the trademark CONVERGYS, in which the Complainant has clearly demonstrated, to the satisfaction of the Panel, that it has well-established and commercially valuable rights through registration and commercial use.
There is no evidence to show that the Respondent was acting in pursuance of any rights or legitimate interests when registering the domain name at issue. Indeed, the Complainant’s use of its trademark predates by several years the Respondent’s registration of the domain name, which essentially incorporates the Complainant’s mark. Thus, the Complainant is the only entity with rights in this name.
In particular, the Panel finds no evidence that the Respondent has used, or undertaken any demonstrable preparations to use the domain name at issue in connection with a bona fide offering of goods or services. On the contrary, the Respondent has used the domain name at issue for a website that may well be confused with those of the Complainant.
Likewise no evidence has been adduced that the Respondent has commonly been known by the domain name; nor is making a legitimate non-commercial or fair use of the domain name; nor has the Respondent been authorized or licensed by the Complainant to use the Complainant’s trademark CONVERGYS as part of the domain name at issue. Indeed, the Respondent is not affiliated with the Complainant; neither has the Respondent’s business any legitimate connection with the Complainant’s business.
Furthermore, the adoption by the Respondent of a domain name virtually identical to the Complainant’s trademark inevitably leads to the diversion of the Complainant’s consumers to the Respondent’s website (see further on this point below) and the consequential tarnishing of the Complainant’s trademark. In other words, the Respondent is trading for commercial gain on the good name and worldwide fame and reputation of the Complainant’s business and trademark and unfairly attracting to its own business and activities the substantial goodwill that the Complainant has established over several years in its name and mark, evidence of which has been provided to the Panel, without any right or legal justification for doing so.
Based on the evidence provided in the case file, the Panel agrees with the Complainant’s contention that the Respondent by registering the domain name at issue is trading on the Complainant’s valuable goodwill established in its trademark CONVERGYS over several years. Indeed, in the absence of any evidence to the contrary, of which none is forthcoming on the part of the Respondent, the Respondent’s registration of the domain name at issue would not appear to be accidental, but deliberate and calculated to exploit the Complainant’s renown in its particular business field.
Again, by registering and using the domain name at issue essentially incorporating the Complainant’s trademark, CONVERGYS, the Respondent is misleading Internet users and consumers into thinking that it is, in some way or another, connected, sponsored or affiliated with the Complainant and its business, or the Respondent’s activities are approved or endorsed by the Complainant, none of which, in fact, is the case.
The Panel notes and agrees with the Complainant’s contentions that the Respondent has registered and is using the domain name at issue to benefit from so-called ‘typosquatting’ (as defined above), through which the Respondent unfairly attracts and benefits from misdirected traffic to the Respondent’s website from Internet users seeking information on the Complainant and its products and services. This situation and the links on the Respondent’s website to products and services which compete with those of the Complainant, and, indeed, the way in which the Respondent’s website is generally organized (including so-called ‘mouse trapping’ (as defined above)), all of which has been described in some detail above by the Complainant and evidenced to the satisfaction of the Panel, also amounts to bad faith on the part of the Respondent.
Furthermore, the attempt by the Respondent to be paid in excess of expenses by the Complainant for the transfer of the domain name at issue (as mentioned above) is further evidence of bad faith on the part of the Respondent.
Finally, the failure of the Respondent to reply to the Complainant’s Outside Counsel’s reiterated demand of December 21, 2005 (the terms of which are cited above) or to file any answer to the present Complaint or otherwise participate in the present proceedings, in the view of the Panel, also indicates bad faith on the part of the Respondent.
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 <convergs.com> be transferred to the Complainant.

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The Law Offices of Leah V. Durant, PLLC specializes in vaccine litigation cases brought under the National Vaccine Injury Compensation Program (NVICP). Our firm advocates exclusively for the innocent children and adults injured by common vaccines.
The Law Offices of Leah V. Durant, PLLC represents children and adults who suffer from vaccine related side effects or vaccine injury and are eligible to receive compensation under the National Vaccine Injury Compensation Program. Although our office is located in Washington, DC just steps from the US Court of Federal Claims, or "Vaccine Court," because the NVICP is a national injury compensation program the Law Office of Leah V. Durant serves clients in all 50 states and U.S. territories. The Court and your attorney will travel to a hearing in your area at no financial cost to you.
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Independent creation -- defendant's creation of its work without copying plaintiff's -- hearkens back at least to the English case of Roworth v. Wilkes, 1 Campbell 94, 98 (1807) and is a cornerstone of copyright law, exonerating the independent creator from all liability. Without the defense, those who didn't copy would be infringers nevertheless. In the area of popular music and creatively-challenged works, where similarities are more likely to arise from the nature of the subject matter, independent creation prevents copyrights from becoming patents.
Surprisingly, the 20th century began in the United States on the wrong foot with the Second Circuit's affirmance of an early Learned Hand district court opinion holding that independent creation was not a defense to an infringement claim. Hein v. Harris, 175 F. 875 (S.D.N.Y.), aff'd, 183 F.2d 107 (2d Cir. 1910)(This case along with discussion of the dispute and musical samples is featured on the Columbia University Law School Arthur W. Diamond Law Library Music Plagiarism Project's website. I thank Timothy Phillips for pointing the site out to me). Hand subsequently thought better of the question in Fred Fisher, Inc. v. Dillingham, 298 F. 145 (S.D.N.Y. 1924), and in Arnstein v. Edward B. Marks Music Corp., 82 F.2d 275 (2d Cir. 1936), court of appeals Judge Hand expressly disavowed Hein because it was "contrary to the very foundation of copyright law, and was plainly an inadvertence which we now take this occasion to correct." In that same year, in Sheldon v. MGM Pictures Corp., 81 F.2d 49, 54 (2d Cir. 1936), Hand had already foreshadowed Arnstein when he famously wrote "[I]f by some magic a man who had never known it were to compose anew Keats's 'Ode on a Grecian Urn,' he would be an 'author,' and if he copyrighted it, others might not copy that poem, though they might of course copy Keats's."
The principle being well-established now is not, unfortunately, a guarantee that it cannot be undermined. One way independent creation is threatened is procedural, the misdescription of it as an affirmative defense. It is not; it is instead a denial of copying. The difference is significant. Once plaintiff has made out a prima facie case, defendant may interpose an affirmative defense for which defendant bears the burden of production and persuasion. By contrast, where defendant denies an element of plaintiff's prima facie case, the burden of persuasion remains with plaintiff, although the burden of production may or may not shift as the case proceeds. Independent creation is a denial of a central element of plaintiff's prima facie case, copying. Plaintiff always bears the burden of persuasion on copying and initially bears the burden of production. The best discussion of these points (including copyright) is in a Third Circuit trade secrets case, Moore v. Kulicke & Soffa Industries, Inc., 318 F.3d 561, 573-574 (3d Cir. 2003).
The First, Fourth, Sixth, Seventh, Ninth, and Eleventh Circuits get this point right. Consistent with its historical problems with the doctrine, some panels of the Second haven't, Procter & Gamble Co. v. Colgate-Palmolive Co., 199 F.3d 74, 77 (2d Cir. 1999); Repp v. Webber, 132 F.3d 882, 889 (2d Cir. 1997), 1999 U.S. App. LEXIS 27393 (2d Cir. Oct. 27, 1999). This last case also raises the second attack on independent creation, the striking similarity doctrine, which will be the subject of Thursday's posting. [If Grokster is handed down Thursday, that case will be featured as Friday's posting].
I have never been satisfied with Judge Hand's "magic poet" dictum. Quite apart from the practical objection that the magic poet's claim of independent creation would simply not be believed, I think it wrong to suppose that the public must shoulder the impossible burden of distinguishing indistinguishables. In the case of exact replication of publici juris matter, copyright should be denied regardless of independent creation. This would not "turn copyrights into patents" because it would only apply in cases if indistinguishability.
One should not immediately dismiss the possibility of holding authors to a higher standard of originality. Consider this thought experiment: If all Irish jigs were suddenly brought back under copyright, would it be possible to create a new Irish jig without being liable to charges of "unconscious infringement" ? I suspect not. The genre would be super-saturated.
The point here is one that Jessica Litman made years ago: in the law, originality and copying are opposites, but in the creative process, they can be complementary. It is the ability to copy from the public domain that to some extent makes originality possible. This means that the public's need to be able to distinguish the extent of the monopolists' monopolies--to tell what is and is not publici juris --needs as much attention from lawmakers and judges as the privileges and rememdies of the monopolists. This is a fault I find with Judge Hand's dictum. He said that one couldn't copy the magic poet's poem but one could copy Keats's. He does not seem to have thought about how a conscious citizen would be able to tell the difference. If in order to make the distinction clearer we might need to hold authors to a stricter standard of originality, we should at least consider it.
Judge Posner has a more evidentiary take on these questions as does Doug Lichtman at U Chicago. I hope to tie these points together in tomorrow's post on striking similarity which is where one confronts the issues most starkly, i.e., what if two works are very similar in highly idiosyncratic passages but plaintiff can't prove access (under the very liberal definition of that word)? Do we say too bad its a failure of proof or do we adopt work arounds and if so who shares what burdens of proof?
Oops. I meant "conscientious", not "conscious".
Of course this is only one tendency in the law. Cases might be found displaying the opposite tendency.
This is one of the best legal blogs I've run across. Always thought-provoking.
It strikes me that on this subject the real issue is how to apply the summary judgment and JNOV standards to the elements of infringement. Of course the burden of production and of proof is upon the plaintiff. The question is what evidence is enough to 1) establish a genuine issue of material fact, and then 2) prove copying by a preponderance of the evidence.
I look forward to your piece on "striking similarity," but I think it reveals that the formulation of the proof required in the absence of direct evidence of copying -- access + substantial similarity -- is an artificial construct. Copying is an element of infringement. Proof of an element requires evidence that supports the inference. It doesn't ordinarily demand specific proof. Elements don't have sub-elements.
Similarity, at some level, is probative of copying. You can have striking similarities that are not substantial, e.g. common misspelled words, that prove access conclusively, but won't get you past defendant's motion for summary judgment because the copying is plainly insubstantial.
But it doesn't seem to me that you should need expert testimony that similarities are otherwise teleologically inexplicable in order to satisfy the burden of production, raise a genuine issue of material fact, and get past defendant's motion for summary judgment.
Why shouldn't "substantial similarity," however that might be assessed in context, allow the inference of copying as one plausible explanation (at least as logical and as likely as independent creation). Why not collapse the overlapping sub-elements of striking similarity + substantial similarity, in a single standard of production/proof for the single element of copying -- perhaps "strikingly substantial similarity" -- that can be pled and proven without expert testimony.
Thanks for the compliment. Your comments about evidentiary issues are, for me, right on point and tomorrow's blog will take them up. I look forward to your further remarks.
Do Termination of Transfers Matter?
Is Clothing a Useful Article?

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Bell Security Inc., third-party Defendant-Respondent.
insufficient as matter of law to raise any triable issues of fact.
have been able to come forth with some evidentiary basis for those claims.
and procedures, and affidavit raised prima facie defense to third-party claims.
Before MOLLEN, P.J., and MANGANO, BROWN and HARWOOD, JJ.
1988, which severed the third-party action from the main action.
action from the plaintiffs' action. We now affirm.
Constr. Co., 46 N.Y.2d 276, 413 N.Y.S.2d 309, 385 N.E.2d 1238; Capelin Assoc.
N.E.2d 718; Dicupe v. City of New York, 124 A.D.2d 542, 543, 507 N.Y.S.2d 687).
Robert GROSVENOR, et al., Plaintiffs,v.NIEMAND BROTHERS, et al., Defendants third-party Plaintiffs-Appellants,Bell Security Inc., third-party Defendant-Respondent.
Security guard brought suit against property owners for injury he sustained on their premises. Property owners brought third-party claims against guard's employer. The Supreme Court, Kings County, Held, J., granted employer's motion for summary judgment and severed third-party action from main action, and property owners appealed. The Supreme Court, Appellate Division, held that: (1) submission of affidavit by attorney for property owners was insufficient as matter of law to defeat employer's summary judgment motion, but (2) affidavit by office manager for employer was sufficient to warrant granting of summary judgment in employer's favor.
Affirmation of counsel who has no personal knowledge of the facts is insufficient as matter of law to raise any triable issues of fact.
Submission of affirmation by counsel for property owners, who were being sued for their security guard's injury, was insufficient as matter of law to defeat motion for summary judgment by guard's employer on owners' third-party claims for indemnity and contribution; although discovery proceedings had not yet been completed at time employer moved for summary judgment, property owners should have been able to come forth with some evidentiary basis for those claims.
Affidavit of office manager for security guard's employer, which was defending third-party claims by property owners being sued for security guard's injury, was sufficient to warrant granting of summary judgment in employer's favor, since office manager had first-hand knowledge of employer's business practices and procedures, and affidavit raised prima facie defense to third-party claims. **794 William A. Prinsell, New York City (Donald Malone of counsel), for defendants third-party plaintiffs-appellants.
Kirschenbaum & Kirschenbaum, P.C., Garden City (Kenneth Kirschenbaum of counsel), for third-party defendant-respondent.
*459 In a negligence action to recover damages for personal injuries, etc., the defendants third-party plaintiffs appeal (1) from an order of the Supreme Court, Kings County (Held, J.), dated April 25, 1988, which granted the motion of the third-party defendant Bell Security Inc. for summary judgment dismissing the third-party complaint, and (2) from an order of the same court dated May 27, 1988, which severed the third-party action from the main action.
The plaintiffs commenced the instant action in January 1987, inter alia, to recover damages for personal injuries, etc., which the plaintiff Robert Grosvenor sustained when he fell off a ladder while replacing a light bulb in a fixture located on the defendants' premises. The plaintiff Robert Grosvenor, an employee of the third-party defendant Bell Security, Inc. (hereinafter Bell), a security company, was assigned as a security guard for the defendants' premises on the day of the accident. Following service of the plaintiffs' complaint, the defendants served a third-party complaint upon Bell which contained three causes of action, namely, common-law indemnity, contribution and contractual indemnity.
Following joinder of issue in the third-party action and service of the bills of particulars, Bell moved for summary judgment dismissing the third-party complaint. In support of its motion, Bell submitted an affidavit of its office manager, Gail Cohen, in which she explained that there was no written agreement between Bell and the appellants for the performance of Bell's security services, but rather there existed an understanding between the parties whereby Bell agreed to provide security guards who would perform surveillance services at the appellants' premises. Ms. Cohen asserted that "there was absolutely no agreement, written or implied, that Bell would indemnify [appellants] under any circumstances". With regard to the appellants' cause of action for contribution, Cohen noted that the appellants' allegations in support thereof were merely conclusory and devoid of facts. In any *460 event, Cohen asserted that the cause of action was without merit since, according to the bills of particulars, the plaintiff Robert Grosvenor's accident occurred approximately 35 minutes before the start of his shift as a security guard. Additionally, it was established that the plaintiff's duties as a security guard did not include the performance of maintenance work. In view thereof, Bell maintained that the appellants' causes of action for contribution as well as indemnification should be dismissed.
In opposition to Bell's motion, the appellants' attorney submitted an affirmation in which he essentially took the position that Bell's motion was premature since discovery had not been completed. The appellants' counsel also maintained that Bell's office manager was not a proper party to submit an affidavit in support of the summary judgment motion since she did have firsthand knowledge of the facts.
The Supreme Court granted Bell's motion for summary judgment dismissing the **795 third-party complaint stating, inter alia, "[t]he motion is granted because the only opposition is by an attorney without actual knowledge of the facts". In a subsequent order, the Supreme Court severed the third-party action from the plaintiffs' action. We now affirm.
 It is well established that in order to defeat a motion for summary judgment, a party must come forward with evidentiary proof in admissible form sufficient to raise triable issues of fact (see, Alvord & Swift v. Muller Constr. Co., 46 N.Y.2d 276, 413 N.Y.S.2d 309, 385 N.E.2d 1238; Capelin Assoc. v. Globe Mfg. Corp., 34 N.Y.2d 338, 342, 357 N.Y.S.2d 478, 313 N.E.2d 776; Rotuba Extruders v. Ceppos, 46 N.Y.2d 223, 231, 413 N.Y.S.2d 141, 385 N.E.2d 1068). Moreover, an affirmation of counsel who has no personal knowledge of the facts, is insufficient, as a matter of law, to raise any triable issues of fact (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718; Dicupe v. City of New York, 124 A.D.2d 542, 543, 507 N.Y.S.2d 687). Accordingly, in the case at bar, the appellants' submission of their counsel's affirmation in opposition to Bell's motion, was insufficient, as a matter of law, to defeat the summary judgment motion. Moreover, although discovery proceedings had not yet been completed at the time Bell moved for summary judgment, the appellants, who were asserting claims, inter alia, of common-law and contractual indemnification, should have been able to come forth with some evidentiary basis for those claims. Similarly, the appellants failed to adequately demonstrate what facts they sought to obtain during the discovery proceedings which would raise triable issues of fact as to the third-party complaint and what reasonable steps were taken during *461 the period of more than one year between joinder of issue and Bell's summary judgment motion, to obtain discovery.
 Contrary to the appellants' contention, Cohen's affidavit was sufficient to warrant the granting of summary judgment in Bell's favor since Cohen, as Bell's office manager, had first-hand knowledge of Bell's business practices and procedures, and her affidavit raised a prima facie defense to the third-party complaint.


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The recent measurements by instruments on board the Cassini space craft revealed that Titan's upper atmosphere harbors the richest atmospheric organic chemistry in the solar system (see ref. 1 and references therein). The Cassini Ion and Neutral Mass Spectrometer (INMS) detection of numerous carbocations2–4 and the detection of heavy negative ions, in particular very large molecular anions (carbanions), by the Cassini CAPS Electron Spectrometer5,6 in Titan's thermosphere and ionosphere were two of the highly unexpected findings. Recent studies suggest that these large ions are singly-charged7 and that, as shown by Lavvas et al.,8 the mechanism of formation of macromolecules and their growth in Titan's atmosphere is directly related to the ion-neutral chemistry. However, the mechanisms involved in their formation remain largely unclear.8,9 As pointed out in ref. 1 and 10, a deep understanding of the mechanisms of formation and growth of macromolecules and their compositions requires studies of the molecular structure for the individual carbocations and carbanions detected by Cassini instruments.
The study of the reaction above requires as a starting point the structural characterization of all reagents and possible reaction products. According to what is suggested in ref. 10 and to the potential energy surface (PES) characteristics of the CH3+ + HCCH reaction, the attack of CH3+ on methylacetylene is expected to form a C4H7+ collision-complex that, via isomeric rearrangement, leads to the delocalized allyl cation where one of the hydrogen atoms in either of the two end carbon atoms is replaced by a methyl group (i.e., [CH2 CH–CH(CH3)]+) and the 2-methylvinyl cation where one hydrogen of the vinyl cation is replaced by a methyl functional group (i.e., [CH3–C CH(CH3)]+). These reaction intermediates can then evolve into molecular hydrogen plus either the linear (i.e., ) or the cyclic (see Fig. 1) form of the methyl-propenyl cation, with the latter being expected to be the most stable isomer. While the reactive PES for reaction (1) and the isomerization process between the linear and the cyclic methyl-propenyl cation are under investigation in our laboratories, the focus of the present work is the spectroscopic characterization of the methyl-cyclopropenyl cation with the final aim of obtaining accurate data that can guide its experimental-laboratory and/or astronomical observation. In this respect, it has to be noted that the detection of the methyl-cyclopropenyl cation in Titan's atmosphere would confirm that reaction (1) is actually taking place and, in turn, this would provide important insights into the initial steps of the molecular growth that leads to Titan's haze formation.
Fig. 1 Methyl-cyclopropenyl cation: atom labeling, inertial axes and selected CCSD(T)/CBS + CV bond distances (values in Å).
The spectroscopic techniques of choice for detecting molecular species in the interstellar medium and/or in planetary atmospheres are rotational and infrared (IR) spectroscopies. Indeed, gas-phase species have been mostly discovered by means of their rotational signatures (with their frequencies ranging from the millimeter-wave region to far-infrared), with the unprecedented resolution and sensitivity of the Atacama Large Millimeter/submillimeter Array (ALMA) offering unique opportunities and already providing the identification of prebiotic molecules in Titan's atmosphere.14,15 However, infrared spectroscopy is expected to play an increasingly important role in determining the chemical composition of exoplanets' atmospheres, which are largely unknown, with the best opportunity to fill this gap being provided in the near future by the James Webb Space Telescope (JWST). In this context, accurate quantum-chemical computations play a key role. Indeed, while the accuracy of state-of-the-art methodologies is usually not yet sufficient to directly guide astronomical searches in the field of rotational spectroscopy, the calculated spectroscopic parameters are the only means to successfully support the laboratory experiments that in turn can provide the rest transition frequencies with the required accuracy. Different is the situation for infrared spectroscopy for which state-of-the-art quantum-chemical predictions have the accuracy needed for astronomical observations. However, the system under investigation presents an additional challenge because of the large amplitude motion (LAM) related to the internal rotation of the methyl group, which requires a non-standard computational treatment. Furthermore, for cationic species, the accuracy of approximated methods, especially those rooted in density functional theory (DFT), is not fully assessed with regard to IR (and Raman) intensities.
The present paper is organized as follows: in the next section after this introduction, the computational details are discussed in view of obtaining an accurate spectroscopic characterization in the framework of rotational and infrared spectroscopies. Subsequently, the results are presented and discussed. Our conclusions are reported in the final section, with particular emphasis given to the possible guidance for the identification of the methyl-cyclopropenyl cation in planetary and astrophysical targets.
The CBS limit has been evaluated using the cc-pVTZ and cc-pVQZ basis sets (n = T and Q) and by applying the n−3 extrapolation formula,22 while the CV correction, obtained from the difference of all electron and frozen-core calculations, has been determined with the cc-pCVTZ set. The “aug” term appearing in eqn (4) denotes the correction due to the inclusion of diffuse functions in the basis set, which is an important corrective term to recover the overestimation of the extrapolation to the CBS limit due to the use of rather small sets, and it is given by the difference MP2/aug-cc-pVTZ36 − MP2/cc-pVTZ. This composite harmonic force field has been used to derive the quartic centrifugal-distortion constants, there employing the Watson S-reduction Hamiltonian in the Ir representation.37 An analogous composite scheme has been used for evaluating the best estimate of the equilibrium dipole moment components.
To fully characterize the vibrational spectrum, anharmonic force field calculations are first of all required. These have been carried out at the B2PLYP/maug-cc-pVTZ-dH level, with the cubic and semi-diagonal quartic force constants and up to the third derivatives of the electric dipole moment being determined by numerical differentiations of analytic second derivatives of the energy and first derivatives of the electric dipole moment. To further improve the description of the anharmonic force field, a hybrid model has been employed, which assumes that the differences between vibrational frequencies computed at two different levels of theory are mainly due to the harmonic terms. The hybrid force field has been obtained in a normal-coordinate representation by adding the cubic and semi-diagonal quartic B2PLYP/maug-cc-pVTZ-dH force constants to the best-estimated harmonic frequencies (eqn (4)); in the following, this has been denoted as “CC/B2”.
The computation of the infrared spectrum beyond the double-harmonic approximation has been performed within the VPT2 approach25,26,38–42 developed and implemented in the Gaussian suite of programs.28 VPT2 calculations have been carried out using both the B2PLYP/maug-cc-pVTZ-dH and the hybrid “CC/B2” anharmonic force fields. To overcome the problem of singularities (known as resonances) impacting the VPT2 approach, the GVPT2 scheme has been used, where the nearly-resonant contributions are removed from the perturbative treatment (leading to the deperturbed model, DVPT2) and variationally treated in a second step.38,42–44 Furthermore, the LAM associated with the methyl internal rotation has been treated separately by means of a 1D discrete variable representation (DVR) anharmonic approach, with the couplings between the LAM and the small amplitude orthogonal motions being neglected in the VPT2 treatment. In detail, the large amplitude torsion has been described as the distance (in mass weighted cartesian coordinates) between structures obtained from a rigid scan around the methyl dihedral angle (every 10 degrees over 36 points) and oriented in order to minimize the angular momentum between pairs of successive structures. Next, additional points along the path are generated using a cubic B-spline interpolation and the one-dimensional problem has been solved by the variational DVR approach using the sinc basis functions introduced by Colbert and Miller,45 as described in ref. 46.
The molecular structure of the methyl-cyclopropenyl cation evaluated at different levels of theory is presented in Table 1, following the atom labelling provided in Fig. 1. According to the literature on this topic (see, for example, ref. 47–49), the CCSD(T)/CBS+CV composite model provides bond lengths with an accuracy of 0.001–0.002 Å and valence angles accurate to 0.05–0.1 degrees. Table 1 further confirms the good performance of the B2PLYP functional in conjunction with a triple-zeta quality basis set, as previously pointed out (see, for examples, ref. 34, 48 and 49). Indeed, the B2PLYP/maug-cc-pVTZ-dH level provides C–C distances that are only 0.001 Å longer than the CCSD(T)/CBS+CV ones and, for the C–H bond lengths, the discrepancies reduce to even less. A very good agreement is also noted for bond angles, the deviations being on the order of 0.1–0.2 degrees. Furthermore, despite the lower computational cost, it is interesting to note that the B2PLYP/maug-cc-pVTZ-dH level of theory yields significantly better results than CCSD(T)/cc-pVTZ. Therefore, B2PLYP/maug-cc-pVTZ-dH represents a very good compromise between computational cost and accuracy, thus providing additional support to our choice of computing the anharmonic force field at this level of theory.
a Atom labeling according to Fig. 1. b μ b is null by symmetry and thus omitted. For the definition of the inertial axes, see Fig. 1. c Evaluated by means of the “cheap” composite scheme (see text).
The rotational parameters, computed as described in the Methodology section, are collected in Table 2. According to the results and discussion for the cyclopropenyl cation reported in ref. 50 as well as to the literature on related topics (see, for example, ref. 17 and 51–53), the CCSD(T)/CBS+CV level of theory for equilibrium values in combination with vibrational effects treated at a correlated level in conjunction with a triple-zeta quality basis set is able to provide vibrational ground-state rotational constants with a relative accuracy better than 0.1%. A specific example is provided by the cyclopropenyl cation. Using the computations reported in ref. 50, it is noted that at the CCSD(T)/CBS+CV level the equilibrium rotational constants differ only by 2.2 MHz for B and 1.1 MHz for C with respect to an improved level of theory which includes larger basis sets in the extrapolation to the CBS limit (n = 5, 6 for CCSD(T)) and in the CV contribution (cc-pCV5Z) as well as the full treatment of triple and quadruple excitations. The inclusion of vibrational corrections finally leads to computed rotational constants that are overestimated by ∼3.8 MHz for B and ∼2.2 MHz for C. Overall, the discrepancies from experiment are well below the conservative estimate of 0.1% mentioned above. The quartic centrifugal-distortion constants are expected to be affected by a relative error of the order of 1–2%.17,33,52 Overall, rotational transition frequencies are predicted with uncertainties ranging from 1–2 MHz to tens, and even hundreds of MHz, mainly depending on the rotational quantum numbers involved. While this accuracy is suitable for supporting laboratory experiments, it is usually not sufficient for directly guiding astronomical searches.
a Watson S-reduction. b Equilibrium rotational constants from the CCSD(T)/CBS+CV equilibrium structure augmented by vibrational corrections at the B2PLYP/maug-cc-pVTZ-dH level (ΔA0 = −705.382 MHz, ΔB0 = −49.586 MHz, and ΔC0 = −43.470 MHz). Quartic centrifugal-distortion constants from the best-estimated “cheap” harmonic force field (eqn (4)). See the text. c Scaled parameters according to eqn (5); see the text.
Table 1 also reports the equilibrium values of the electric dipole moment components. According to the symmetry of the molecule, the one along the b inertial axis is null by symmetry, while μa is nearly one order of magnitude larger than μc. This means that the rotational spectrum is characterized by strong a-type rotational transitions. The simulation at T = 100 K of the rotational spectrum of the methyl-cyclopropenyl cation, based on the scaled rotational constants and the “cheap” quartic centrifugal-distortion terms, is depicted in Fig. 2, and it has been obtained using the VMS-ROT program.58 It is noted that at the temperature considered the maximum intensity is at ∼250–280 GHz.
Fig. 2 Simulation of the rotational spectrum of the methyl-cyclopropenyl cation at T = 100 K.
The results for the harmonic force field are collected in Table 3, where the harmonic wavenumbers and intensities obtained at the CCSD(T)/cc-pVTZ and B2PLYP/maug-cc-pVTZ-dH levels of theory and by means of the “cheap” composite scheme are compared. For frequencies, a good agreement with the best estimates, i.e., within a few wavenumbers, is noted for both CCSD(T)/cc-pVTZ and B2PLYP/maug-cc-pVTZ-dH, with the latter however being characterized by a strongly reduced computational cost with respect to the former. Even if not reported in Table 3 (see ESI:‡ Table S2), it is interesting to discuss the various contributions of the additive scheme. It is noted that the CV corrections are always positive and range from 1 to 5 cm−1; the CBS contributions instead can be either positive or negative and they range, in absolute terms, from 0.1 to 7 cm−1; and finally, the diffuse terms are mostly negative and, in relative terms, they range from 0.1% to 0.5%. According to the literature on this topic (see, for example, ref. 34 and 59–61), we expect that the mean error obtained (with respect to a full CCSD(T) scheme accounting for extrapolation to the CBS limit, CV correction, and high-order terms in the cluster expansion) is of the order of a few wavenumbers: from 3 cm−1 to 15 cm−1, where larger errors affect the higher frequency values and/or challenging vibrational modes.
a “Cheap” composite scheme. See the text. b cc-pVTZ basis set. c maug-cc-pVTZ-dH basis set.
Concerning the IR intensities, a good agreement is observed between the best-estimated and CCSD(T)/cc-pVTZ harmonic values, while B2PLYP/maug-cc-pVTZ-dH results show a few significant discrepancies. Additional computations (see ESI:‡ Table S3) reveal that the MP2 values are in line with their CCSD(T) counterparts, whereas HF-SCF results are very different. These discrepancies are possibly due to an unbalanced description of the charge polarization in cationic systems. As a consequence, we can infer that DFT values inherit the wrong behavior of HF-SCF due to the fraction of the Hartree–Fock exchange contribution included in hybrid and double-hybrid functionals and/or they are plagued by an overestimation of the conjugation effects in local and semi-local functionals.
a maug-cc-pVTZ-dH basis set. b Hybrid force field. See the text. c Full GVPT2 treatment. d GVPT2 treatment reduced to the normal modes ν1–ν20, while ν21 is treated by the 1D DVR anharmonic approach.
Due to the fair agreement between CCSD(T) and B2PLYP harmonic frequencies, B2PLYP anharmonic frequencies are also quite close to the corresponding values from the hybrid “CC/B2” force field, with a mean absolute deviation of only 6 cm−1 and a maximum discrepancy of 15 cm−1 for the ν1 normal mode. Concerning intensities, the effects of mechanical and electrical anharmonicity are generally small, ranging between −3 and 2.5 km mol−1, the only exceptions being ν4, ν6 and ν7 for which the anharmonic corrections to the intensity amount to −14, −57 and +49 km mol−1, respectively. Among these, the ν6 and ν7 normal modes are coupled through a 1–1 Darling–Dennison resonance responsible for intensity transfer from the stronger ν6 to the weaker ν7 band. Overall, we note that these results are reasonable; however, a warning is deserved because a systematic analysis of DFT anharmonic corrections in charged and/or conjugated systems is still missing.
The theoretical IR spectrum of the methyl-cyclopronenyl cation between 350 and 3500 cm−1 is reported in Fig. 3, where the two top panels compare the computed harmonic and anharmonic spectra. The former is obtained from the “cheap” scheme (eqn (4)) applied to both wavenumbers and intensities, while the latter has been simulated by using hybrid “CC/B2” anharmonic frequencies and intensities. As it can be seen, anharmonicity has a huge impact on the spectrum shape due to significant shifts of several bands. Finally, the third panel of Fig. 3 reports the spectral simulation obtained by convoluting the anharmonic stick spectrum with Gaussian functions having a half width at half maximum of 5 cm−1. It is observed that overtones and combination bands mostly affect the region between 2000 and 3000 cm−1; however, their intensity is so small that they can be barely seen in Fig. 3.
As mentioned in the Introduction, the mass spectrometers on board Cassini pointed out the presence of several carbocations in Titan's atmosphere. It is therefore interesting to compare our prediction of the IR spectrum of the methyl cyclopropenyl cation with those of C3H3+ and other carbocations recorded in ref. 68 and 69. Even if intense features are observed in the 1400–1600 cm−1 range, and around 2800 cm−1 and 3200 cm−1, the most intense transitions of the methyl cyclopropenyl cation do not seem to overlap them. However, the calculation of the IR spectra for the best candidates possibly present in Titan's atmosphere by means of the computational approach used in the present work is warranted in order to provide the astronomical community with a more complete overview and it will be the object of future investigations.
Fig. 3 Simulated IR spectrum of the methyl-cyclopropenyl cation between 300 and 3500 cm−1. Top: Stick spectrum reporting harmonic frequencies and intensities obtained from the “cheap” composite scheme. Middle: Stick spectrum reporting anharmonic frequencies and intensities obtained from the “CC/B2” hybrid approach. Bottom: “CC/B2” anharmonic spectrum convoluted with a Gaussian function with a half width at half maximum (HWHM) of 5 cm−1.
As far as the rotational spectrum is concerned, nowadays the best opportunity for detecting molecules in Titan's atmosphere and in the interstellar medium is offered by the ground-based observatory ALMA, whose working frequency range is 31–950 GHz. ALMA combines high sensitivity with high spectral and spatial resolution interferometric observations, thus allowing for unbiased spectral surveys of the astronomical source under consideration. These spectral surveys usually collect a large number of lines and therefore tend to be very crowded; as a consequence, to firmly identify a molecular species, very accurate predictions for rotational transitions are required. While for astronomical observations showing isolated lines an accuracy of a few MHz is well sufficient, in most cases the uncertainties need to be as small as 100 kHz. This means that state-of-the-art quantum-chemical predictions can directly guide astronomical observations only in very limited cases; however, as already mentioned, they play a fundamental role to successfully support the laboratory spectroscopy experiments that will provide the rest frequencies with the required accuracy.
As already pointed out in the Introduction, a great opportunity to investigate Titan's atmosphere by using IR spectroscopy will be provided by the JWST that will cover the 0.6–29 μm wavelength range (i.e., 16 667–345 cm−1). In this respect, our predictions of the infrared spectrum should be able to guide the search for the methyl-cyclopropenyl cation in Titan's and other planetary atmospheres. According to our investigation, the most interesting spectral regions are those around 1000 cm−1, 1300–1500 cm−1 and 3100 cm−1, where the most intese features lie.
This work has been supported by MIUR “PRIN 2015” funds (Grant Number 2015F59J3R), by the University of Bologna (RFO funds), and by Scuola Normale Superiore (GR16_B_TASINATO). The SMART@SNS Laboratory (http://smart.sns.it) is acknowledged for providing high-performance computer facilities. Support from the Italian MIUR (FIRB 2013 “Futuro in ricerca” – Protocol: RBFR132WSM) is acknowledged. The authors also acknowledge Mr Alessio Melli for the graphical abstract preparation.
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† “Challenges in spectroscopy: accuracy versus interpretation from isolated molecules to condensed phases” themed issue.

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