Unfortunately, we receive reports of gun-related crimes through the media on a daily basis. In an effort to curb gun violence, Pennsylvania has passed much stricter laws relating to the possession and ownership of firearms and other weapons. Pennsylvania has some of the most restrictive gun control laws in the United States according to the Brady Center to Prevent Gun Violence.
Federal, state and local prosecutors make it a priority to investigate and prosecute individuals who violate any of the existing gun laws. Individuals convicted of a gun crime can face years in jail along with significant fines, court costs and other severe penalties. Individuals convicted of committing certain crimes with a weapon can face even longer prison sentences under Pennsylvania’s deadly weapon sentencing enhancement law.
Pennsylvania’s gun laws are complex and can be difficult for even the most experienced gun owners to understand. It is extremely important to hire with a lawyer with a thorough understanding of federal and Pennsylvania state gun laws if you are charged with a gun crime. Over the course of my career as a criminal defense attorney, I have defended individuals charged with all types of gun and weapon offenses. I can guide you through the legal process and address your questions and concerns if you are charged with a gun crime.
I have over a decade of experience providing skilled and aggressive representation to individuals charged with weapons or firearms offenses in Bucks County, Montgomery County and the surrounding counties. Contact me at (215) 752-5282 for a free initial consultation or fill out the confidential contact form for an immediate response. Appointments are available after business hours and on weekends.
The majority of Pennsylvania’s gun laws cover the unlawful possession, ownership, use, sale or transfer of a firearm or other weapon. Pennsylvania defines a firearm as any pistol or revolver with a barrel length of less than 15 inches, any shotgun with a barrel length of less than 18 inches, any rifle with a barrel length of less than 16 inches, or any pistol, revolver, rifle or shotgun with an overall length of less than 26 inches (18 Pa. C.S.A. § 6102). Pennsylvania’s statutory definition of a firearm most closely describes the characteristics of a handgun.
With some exceptions, it is lawful for an individual in Pennsylvania to carry a firearm in his or her home or place of business. An individual carrying a firearm outside his or her home or place of business will, with some exceptions, be required to possess a valid License to Carry Firearm (LTCF).
The statute also disqualifies individuals convicted of most misdemeanor weapons offenses as well as those convicted of misdemeanor offenses of escape, unlawful restraint and corruption of minors.
A person commits a 1st degree misdemeanor if he or she possesses any instrument of crime with the intent to employ it criminally.
A person commits a 1st degree misdemeanor if he or she possesses a firearm or other weapon concealed upon his person with the intent to employ it criminally.
A person commits a 3rd degree felony if in the course of the commission of a felony or in the attempt to commit a felony he or she uses or wears body armor or has in his or her control, custody or possession of any body armor.
Under 18 Pa. C.S.A. § 907 (b), it is unlawful to possess a firearm or other weapon concealed on your person with the intent to employ it in a criminal manner. The legal definition of weapon includes any object readily capable of lethal use and possessed under circumstances inconsistent with any lawful usage of the object. An unloaded firearm is considered an unlawful weapon under the statutory definition.
Under 18 Pa. C.S.A. § 907 (c), it is illegal to use, wear, control, possess or take custody of body armor in the course of committing a felony or in the attempt to commit a felony.
Under 18 Pa. C.S.A. § 908 (a), it is illegal to repair, sell, or otherwise deal in, use or possess any offensive weapon unless authorized by law.
The statute requires that the prohibited offensive weapon be capable of inflicting serious bodily injury on a person and otherwise serve no lawful purpose. The statute specifically exempts state police officers, sheriffs, police firearms experts, police forensic experts and firearms dealers from being subject to the law.
Under 18 Pa. C.S.A. § 6106, it is illegal in most circumstances for an individual to carry a firearm on their person or in their vehicle without a lawfully issued Pennsylvania License to Carry Firearms or a license or a permit to carry a firearm from a state which Pennsylvania has a current reciprocity agreement. Pennsylvania has written license to carry firearms reciprocity agreements with 19 states. Pennsylvania has entered into informal unwritten license to carry firearms reciprocity agreements with 9 other states.
Any person who carries a firearm in any vehicle or any person who carries a firearm concealed on or about his person, except in his place of abode or fixed place of business, without a valid and lawfully issued license under this statute commits a 3rd degree felony.
A person who is otherwise eligible to possess a valid license under this statute but carries a firearm in any vehicle or any person who carries a firearm concealed on or about his person, except in his place of abode or fixed place of business, without a valid and lawfully issued license and has not committed any other criminal violation commits a 1st degree misdemeanor.
The statute specifically exempts most individuals who carry weapons as part of their lawful employment, including police, constables, sheriffs, members of the military, certain hunters and those transporting unloaded firearms to or from target practice.
The firearms not to be carried without a license offense can be graded as a 1st degree misdemeanor or 3rd degree felony depending on the status of the accused. An individual who is otherwise eligible to possess a license to carry a firearm in Pennsylvania and is not accused of committing any additional criminal offenses will face the lower-graded 1st degree misdemeanor charge.
No person shall possess a firearm which has had the manufacturer’s number integral to the frame or receiver altered, changed, removed or obliterated.
A person who violates this section commits a felony of the 2nd degree.
The law creates an exception to allow for the possession of a weapon on school property if it is used in connection with a lawful supervised school activity or for some other lawful purpose.
Under 18 Pa. C.S.A. § 6106.1, it is illegal to carry a loaded pistol, revolver, shotgun or rifle in any vehicle. The statute does not apply to specified state and local law enforcement officers, members of the armed services, federal agents licensed to carry weapons and agents of common carriers, banks and businesses transporting money or other valuable property.
I will thoroughly review the facts and circumstances of your case to develop most effective defense strategy. My review of the case will include an analysis of whether any of your state and federal constitutional rights were violated during your interaction with the police. In some cases, the legality of a vehicle stop or pedestrian “pat-down” is the starting point in the evaluation of the case.
The legal standard for a lawful search and seizure of a firearm or other weapon by the police is determined by the type of encounter involved. A seizure of a firearm or other weapon commonly occurs during the search of a person, vehicle or residence by law enforcement authorities.
I will file a Motion to Suppress Evidence if the police violated any of your constitutional rights during the investigation and prosecution of the case. The trial judge may exclude the use of certain physical evidence such as a firearm or other weapon if it is determined that your constitutional rights were violated by the police.
It is extremely difficult for most prosecutors to move forward with the charges if the court has excluded the use of the recovered firearm or weapon as evidence at trial. Most prosecutors will withdraw or dismiss the charges against the accused if the suppression motion is granted by the court. I have extensive experience defending individuals who have been subject to an illegal search and seizure of a weapon or firearm by the police.
Certain weapons crimes, including the offense of firearms not to be carried without a license, require the prosecutor, in order to achieve a conviction, to prove that the weapon seized from the accused was functional. Similarly, a prosecutor must prove a weapon was loaded in order to gain a conviction for the crime of carrying a loaded weapon other than a firearm.
Conducting an independent investigation of the firearm or other weapon seized as evidence by the police will often uncover proof that the firearm or other weapon was not loaded or was not functional. Establishing that a firearm or other weapon was not loaded or was not functional will provide a complete defense to these offenses. I can review the evidence in your case to determine all available defenses to the charges.
Constructive Possession: under this theory, the prosecutor alleges that the firearm or other weapon was found somewhere that you have access to, such as in your house, your car, or on your property. A prosecutor must prove that you had knowledge of the firearm or other weapon and the ability to maintain dominion or control over it.
It is generally much more difficult for a prosecutor to prove constructive possession of a weapon or other firearm. Judges and juries are often reluctant to convict a person of an illegal weapons possession crime based solely on evidence that the individual was found in close proximity to a firearm or other weapon. A prosecutor will frequently need additional proof including DNA evidence, fingerprint evidence or incriminating statements made by the accused indicating ownership of the firearm or other weapon.
Many legal defenses may apply in a weapons or firearms case. I can determine the most effective legal strategy to protect your freedom and your future.
If you have been charged with a weapons or firearms offense in Bucks County, Montgomery County or the surrounding counties, it is critical to act quickly to protect your rights and build the strongest possible defense against the charges. Phone lines are open 24 hours a day at (215) 752-5282. Call today for a free initial consultation or fill out the confidential contact form for an immediate response.


Justia › US Law › US Case Law › US Supreme Court › Volume 586 › Helsinn Healthcare S. A. v. Teva Pharmaceuticals USA, Inc.
Helsinn makes a treatment for chemotherapy-induced nausea using the chemical palonosetron. While developing that product, Helsinn granted another company the right to market a 0.25 mg dose of palonosetron in the United States; that company was required to keep proprietary information confidential. Nearly two years later, in 2003, Helsinn filed a provisional patent application covering a 0.25 mg dose of palonosetron. Helsinn filed four patent applications that claimed priority to the 2003 date. Helsinn’s fourth application, filed in 2013 (the 219 patent), is covered by the Leahy-Smith America Invents Act (AIA). In 2011, Teva sought approval to market a generic 0.25 mg palonosetron product. Helsinn sued for infringement. Teva countered that the 219 patent was invalid under the “on sale” provision of the AIA, which precludes a person from obtaining a patent on an invention that was “in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention,” 35 U.S.C. 102(a)(1), arguing the 0.25 mg dose was “on sale” more than one year before Helsinn filed the 2003 application.
The Federal Circuit held, and the Supreme Court unanimously agreed, that the sale was publicly disclosed, regardless of whether the details of the invention were publicly disclosed in the agreements. A commercial sale to a third party who is required to keep the invention confidential may place the invention “on sale” under section 102(a). The patent statute in force immediately before the AIA included an on-sale bar. Supreme Court and Federal Circuit precedent interpreting that provision indicated that a sale or offer of sale need not make an invention available to the public to constitute invalidating prior art. The Court applied the presumption that when Congress reenacted the “on sale” language in the AIA, it adopted earlier judicial constructions.
Under the Leahy-Smith America Invents Act's "on sale" bar, a commercial sale to a third party who is required to keep the invention confidential can constitute invalidating prior art for subsequently-issued patents.
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
Helsinn Healthcare S. A. v. Teva Pharmaceuticals USA, Inc., et al.
Petitioner Helsinn Healthcare S. A. makes a treatment for chemotherapy-induced nausea and vomiting using the chemical palonosetron. While Helsinn was developing its palonosetron product, it entered into two agreements with another company granting that company the right to distribute, promote, market, and sell a 0.25 mg dose of palonosetron in the United States. The agreements required that the company keep confidential any proprietary information received under the agreements. Nearly two years later, in January 2003, Helsinn filed a provisional patent application covering a 0.25 mg dose of palonosetron. Over the next 10 years, Helsinn filed four patent applications that claimed priority to the January 2003 date. Relevant here, Helsinn filed its fourth patent application in 2013. That patent (the ’219 patent) covers a fixed dose of 0.25 mg of palonosetron in a 5 ml solution and is covered by the Leahy-Smith America Invents Act (AIA).
In 2011, respondents Teva Pharmaceutical Industries, Ltd., and Teva Pharmaceuticals USA, Inc. (collectively Teva), sought approval to market a generic 0.25 mg palonosetron product. Helsinn sued Teva for infringing its patents, including the ’219 patent. Teva countered that the ’219 patent was invalid under the “on sale” provision of the AIA—which precludes a person from obtaining a patent on an invention that was “in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention,” 35 U. S. C. §102(a)(1)—because the 0.25 mg dose was “on sale” more than one year before Helsinn filed the provisional patent application in 2003. The District Court held that the AIA’s “on sale” provision did not apply because the public disclosure of the agreements did not disclose the 0.25 mg dose. The Federal Circuit reversed, holding that the sale was publicly disclosed, regardless of whether the details of the invention were publicly disclosed in the terms of the sale agreements.
Held: A commercial sale to a third party who is required to keep the invention confidential may place the invention “on sale” under §102(a). The patent statute in force immediately before the AIA included an on-sale bar. This Court’s precedent interpreting that provision supports the view that a sale or offer of sale need not make an invention available to the public to constitute invalidating prior art. See, e.g., Pfaff v. Wells Electronics, Inc., 525 U.S. 55, 67. The Federal Circuit had made explicit what was implicit in this Court’s pre-AIA precedent, holding that “secret sales” could invalidate a patent. Special Devices, Inc. v. OEA, Inc., 270 F.3d 1353, 1357. Given this settled pre-AIA precedent, the Court applies the presumption that when Congress reenacted the same “on sale” language in the AIA, it adopted the earlier judicial construction of that phrase. The addition of the catchall phrase “or otherwise available to the public” is not enough of a change for the Court to conclude that Congress intended to alter the meaning of “on sale.” Paroline v. United States, 572 U.S. 434, and Federal Maritime Comm’n v. Seatrain Lines, Inc., 411 U.S. 726, distinguished. Pp. 5–9.
HELSINN HEALTHCARE S. A., PETITIONER v. TEVA PHARMACEUTICALS USA, INC., et al.
The Leahy-Smith America Invents Act (AIA) bars a person from receiving a patent on an invention that was “in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.” 35 U. S. C. §102(a)(1). This case requires us to decide whether the sale of an invention to a third party who is contractually obligated to keep the invention confidential places the invention “on sale” within the meaning of §102(a).
More than 20 years ago, this Court determined that an invention was “on sale” within the meaning of an earlier version of §102(a) when it was “the subject of a commercial offer for sale” and “ready for patenting.” Pfaff v. Wells Electronics, Inc., 525 U.S. 55, 67 (1998). We did not further require that the sale make the details of the invention available to the public. In light of this earlier construction, we determine that the reenactment of the phrase “on sale” in the AIA did not alter this meaning. Accordingly, a commercial sale to a third party who is required to keep the invention confidential may place the invention “on sale” under the AIA.
Petitioner Helsinn Healthcare S. A. (Helsinn) is a Swiss pharmaceutical company that makes Aloxi, a drug that treats chemotherapy-induced nausea and vomiting. Helsinn acquired the right to develop palonosetron, the active ingredient in Aloxi, in 1998. In early 2000, it submitted protocols for Phase III clinical trials to the Food and Drug Administration (FDA), proposing to study a 0.25 mg and a 0.75 mg dose of palonosetron. In September 2000, Helsinn announced that it was beginning Phase III clinical trials and was seeking marketing partners for its palonosetron product.
Helsinn found its marketing partner in MGI Pharma, Inc. (MGI), a Minnesota pharmaceutical company that markets and distributes drugs in the United States. Helsinn and MGI entered into two agreements: a license agreement and a supply and purchase agreement. The license agreement granted MGI the right to distribute, promote, market, and sell the 0.25 mg and 0.75 mg doses of palonosetron in the United States. In return, MGI agreed to make upfront payments to Helsinn and to pay future royalties on distribution of those doses. Under the supply and purchase agreement, MGI agreed to purchase exclusively from Helsinn any palonosetron product approved by the FDA. Helsinn in turn agreed to supply MGI however much of the approved doses it required. Both agreements included dosage information and required MGI to keep confidential any proprietary information received under the agreements.
Helsinn and MGI announced the agreements in a joint press release, and MGI also reported the agreements in its Form 8–K filing with the Securities and Exchange Commission. Although the 8–K filing included redacted copies of the agreements, neither the 8–K filing nor the press releases disclosed the specific dosage formulations covered by the agreements.
On January 30, 2003, nearly two years after Helsinn and MGI entered into the agreements, Helsinn filed a provisional patent application covering the 0.25 mg and 0.75 mg doses of palonosetron. Over the next 10 years, Helsinn filed four patent applications that claimed priority to the January 30, 2003, date of the provisional application. Helsinn filed its fourth patent application—the one relevant here—in May 2013, and it issued as U. S. Patent No. 8,598,219 (’219 patent). The ’219 patent covers a fixed dose of 0.25 mg of palonosetron in a 5 ml solution. By virtue of its effective date, the ’219 patent is governed by the AIA. See §101(i).
Respondents Teva Pharmaceutical Industries, Ltd., and Teva Pharmaceuticals USA, Inc. (Teva), are, respectively, an Israeli company that manufactures generic drugs and its American affiliate. In 2011, Teva sought approval from the FDA to market a generic 0.25 mg palonosetron product. Helsinn then sued Teva for infringing its patents, including the ’219 patent. In defense, Teva asserted that the ’219 patent was invalid because the 0.25 mg dose was “on sale” more than one year before Helsinn filed the provisional patent application covering that dose in January 2003.
“A person shall be entitled to a patent unless . . . the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.” 35 U. S. C. §102(a)(1) (emphasis added).
“(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States.” 35 U. S. C. §§102(a)–(b) (2006 ed.) (emphasis added).
The District Court determined that the “on sale” provision did not apply. It concluded that, under the AIA, an invention is not “on sale” unless the sale or offer in question made the claimed invention available to the public. Helsinn Healthcare S. A. v. Dr. Reddy’s Labs. Ltd., 2016 WL 832089, *45, *51 (D NJ, Mar. 3, 2016). Because the companies’ public disclosure of the agreements between Helsinn and MGI did not disclose the 0.25 mg dose, the court determined that the invention was not “on sale” before the critical date. Id., at *51–*52.
The Federal Circuit reversed. 855 F.3d 1356, 1360 (2017). It concluded that “if the existence of the sale is public, the details of the invention need not be publicly disclosed in the terms of sale” to fall within the AIA’s on-sale bar. Id., at 1371. Because the sale between Helsinn and MGI was publicly disclosed, it held that the on-sale bar applied. Id., at 1364, 1371.
We granted certiorari to determine whether, under the AIA, an inventor’s sale of an invention to a third party who is obligated to keep the invention confidential qualifies as prior art for purposes of determining the patent- ability of the invention. 585 U. S. ___ (2018). We conclude that such a sale can qualify as prior art.
The United States Constitution authorizes Congress “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Art. 1, §8, cl. 8. Under this grant of authority, Congress has crafted a federal patent system that encourages “the creation and disclosure of new, useful, and nonobvious advances in technology and design” by granting inventors “the exclusive right to practice the invention for a period of years.” Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 151 (1989).
To further the goal of “motivating innovation and enlightenment” while also “avoiding monopolies that unnecessarily stifle competition,” Pfaff, 525 U. S., at 63, Congress has imposed several conditions on the “limited opportunity to obtain a property right in an idea,” Bonito Boats, supra, at 149. One such condition is the on-sale bar, which reflects Congress’ “reluctance to allow an inventor to remove existing knowledge from public use” by obtaining a patent covering that knowledge. Pfaff, supra, at 64; see also Pennock v. Dialogue, 2 Pet. 1, 19 (1829) (explaining that “it would materially retard the progress of science and the useful arts” to allow an inventor to “sell his invention publicly” and later “take out a patent” and “exclude the public from any farther use than what should be derived under it”).
Every patent statute since 1836 has included an on-sale bar. Pfaff, supra, at 65. The patent statute in force immediately before the AIA prevented a person from receiving a patent if, “more than one year prior to the date of the application for patent in the United States,” “the invention was . . . on sale” in the United States. 35 U. S. C. §102(b) (2006 ed., Supp. IV). The AIA, as relevant here, retained the on-sale bar and added the catchall phrase “or otherwise available to the public.” §102(a)(1) (2012 ed.) (“A person shall be entitled to a patent unless” the “claimed invention was . . . in public use, on sale, or otherwise available to the public . . . ”). We must decide whether these changes altered the meaning of the “on sale” bar. We hold that they did not.
Congress enacted the AIA in 2011 against the backdrop of a substantial body of law interpreting §102’s on-sale bar. In 1998, we determined that the pre-AIA on-sale bar applies “when two conditions are satisfied” more than a year before an inventor files a patent application. Pfaff, 525 U. S., at 67. “First, the product must be the subject of a commercial offer for sale.” Ibid. “Second, the invention must be ready for patenting,” which we explained could be shown by proof of “reduction to practice” or “drawings or other descriptions of the invention that were sufficiently specific to enable a person skilled in the art to practice the invention.” Id., at 67–68.
Although this Court has never addressed the precise question presented in this case, our precedents suggest that a sale or offer of sale need not make an invention available to the public. For instance, we held in Pfaff that an offer for sale could cause an inventor to lose the right to patent, without regard to whether the offer discloses each detail of the invention. E.g., id., at 67. Other cases focus on whether the invention had been sold, not whether the details of the invention had been made available to the public or whether the sale itself had been publicly disclosed. E.g., Consolidated Fruit-Jar Co. v. Wright, 94 U.S. 92, 94 (1877) (“[A] single instance of sale or of use by the patentee may, under the circumstances, be fatal to the patent . . . ”); cf. Smith & Griggs Mfg. Co. v. Sprague, 123 U.S. 249, 257 (1887) (“A single sale to another . . . would certainly have defeated his right to a patent . . . ”); Elizabeth v. Pavement Co., 97 U.S. 126, 136 (1878) (“It is not a public knowledge of his invention that precludes the inventor from obtaining a patent for it, but a public use or sale of it”).
The Federal Circuit—which has “exclusive jurisdiction” over patent appeals, 28 U. S. C. §1295(a)—has made explicit what was implicit in our precedents. It has long held that “secret sales” can invalidate a patent. E.g., Special Devices, Inc. v. OEA, Inc., 270 F.3d 1353, 1357 (2001) (invalidating patent claims based on “sales for the purpose of the commercial stockpiling of an invention” that “took place in secret”); Woodland Trust v. Flowertree Nursery, Inc., 148 F.3d 1368, 1370 (1998) (“Thus an inventor’s own prior commercial use, albeit kept secret, may constitute a public use or sale under §102(b), barring him from obtaining a patent”).
In light of this settled pre-AIA precedent on the meaning of “on sale,” we presume that when Congress reenacted the same language in the AIA, it adopted the earlier judicial construction of that phrase. See Shapiro v. United States, 335 U.S. 1, 16 (1948) (“In adopting the language used in the earlier act, Congress ‘must be considered to have adopted also the construction given by this Court to such language, and made it a part of the enactment’ ”). The new §102 retained the exact language used in its predecessor statute (“on sale”) and, as relevant here, added only a new catchall clause (“or otherwise available to the public”). As amicus United States noted at oral argument, if “on sale” had a settled meaning before the AIA was adopted, then adding the phrase “or otherwise available to the public” to the statute “would be a fairly oblique way of attempting to overturn” that “settled body of law.” Tr. of Oral Arg. 28. The addition of “or otherwise available to the public” is simply not enough of a change for us to conclude that Congress intended to alter the meaning of the reenacted term “on sale.” Cf. Holder v. Martinez Gutierrez, 566 U.S. 583, 593 (2012) (determining that a reenacted provision did not ratify an earlier judicial construction where the provision omitted the word on which the prior judicial constructions were based).
Helsinn disagrees, arguing that our construction reads “otherwise” out of the statute. Citing Paroline v. United States, 572 U.S. 434 (2014), and Federal Maritime Comm’n v. Seatrain Lines, Inc., 411 U.S. 726 (1973), Helsinn contends that the associated-words canon requires us to read “otherwise available to the public” to limit the preceding terms in §102 to disclosures that make the claimed invention available to the public.
As an initial matter, neither of the cited decisions addresses the reenactment of terms that had acquired a well-settled judicial interpretation. And Helsinn’s argument places too much weight on §102’s catchall phrase. Like other such phrases, “otherwise available to the public” captures material that does not fit neatly into the statute’s enumerated categories but is nevertheless meant to be covered. Given that the phrase “on sale” had acquired a well-settled meaning when the AIA was enacted, we decline to read the addition of a broad catchall phrase to upset that body of precedent.
Helsinn does not ask us to revisit our pre-AIA interpretation of the on-sale bar. Nor does it dispute the Federal Circuit’s determination that the invention claimed in the ’219 patent was “on sale” within the meaning of the pre-AIA statute. Because we determine that Congress did not alter the meaning of “on sale” when it enacted the AIA, we hold that an inventor’s sale of an invention to a third party who is obligated to keep the invention confidential can qualify as prior art under §102(a). We therefore affirm the judgment of the Federal Circuit.
March 12, 2018 Motion to extend the time to file a response from April 2, 2018 to May 17, 2018, submitted to The Clerk.
March 13, 2018 Motion to extend the time to file a response is granted in part and the time is extended to and including May 11, 2018.
March 13, 2018 Blanket Consent filed by Petitioner, Helsinn Healthcare S.A..
March 19, 2018 Blanket Consent filed by Respondents, Teva Pharmaceuticals USA, Inc., et al..
March 27, 2018 Brief amicus curiae of Congressman Lamar Smith filed.
March 30, 2018 Brief amicus curiae of American Intellectual Property Law Association filed.
March 30, 2018 Brief amicus curiae of Intellectual Property Owners Association filed.
April 2, 2018 Brief amicus curiae of Pharmaceutical Research and Manufacturers of America filed.
April 2, 2018 Brief amicus curiae of Bar Association of the District of Columbia filed.
April 2, 2018 Brief amicus curiae of The Naples Roundtable filed.
April 2, 2018 Brief amicus curiae of Boston Patent Law Association in support of neither party filed.
April 2, 2018 Brief amicus curiae of The Massachusetts Biotechnology Council filed.
April 2, 2018 Brief amicus curiae of The Biotechnology Innovation Organization (BIO) filed.
April 2, 2018 Brief amicus curiae of US Inventor, Inc. filed.
May 11, 2018 Brief of respondents Teva Pharmaceuticals USA, Inc., et al. in opposition filed.
May 29, 2018 DISTRIBUTED for Conference of 6/14/2018.
June 18, 2018 DISTRIBUTED for Conference of 6/21/2018.
June 25, 2018 Petition GRANTED.
July 2, 2018 Motion for an extension of time to file the briefs on the merits filed.
July 3, 2018 Motion to extend the time to file the briefs on the merits granted. The time to file the joint appendix and petitioner's brief on the merits is extended to and including August 23, 2018. The time to file respondents' brief on the merits is extended to and including October 9, 2018.
August 1, 2018 Blanket Consent filed by Petitioner, Helsinn Healthcare S.A..
August 23, 2018 Amicus brief of Intellectual Property Owners Association submitted.
August 23, 2018 Brief of Helsinn Healthcare S.A. submitted.
August 23, 2018 Joint Appendix submitted.
August 23, 2018 Amicus brief of Congressman Lamar Smith submitted.
August 23, 2018 Brief of petitioner Helsinn Healthcare S.A. filed.
August 23, 2018 Joint appendix filed.
August 23, 2018 Brief amicus curiae of Congressman Lamar Smith filed.
August 23, 2018 Brief amicus curiae of Intellectual Property Owners Association filed.
August 23, 2018 Brief amicus curiae of Intellectual Property Owners Association in support of neither party filed.
August 30, 2018 Amicus brief of The Massachusetts Biotechnology Council submitted.
August 30, 2018 Brief amicus curiae of United States of America filed.
August 30, 2018 Amicus brief of Pharmaceutical Research and Manufacturers of America submitted.
August 30, 2018 Amicus brief of American Intellectual Property Law Association submitted.
August 30, 2018 Amicus brief of Bar Association of the District of Columbia submitted.
August 30, 2018 Amicus brief of Austin Intellectual Property Law Association submitted.
August 30, 2018 Amicus brief of Houston Intellectual Property Law Association submitted.
August 30, 2018 Amicus brief of The Naples Roundtable submitted.
August 30, 2018 Amicus brief of THE INTELLECTUAL PROPERTY LAW ASSOCIATION OF CHICAGO submitted.
August 30, 2018 Brief amicus curiae of Pharmaceutical Research and Manufacturers of America filed.
August 30, 2018 Amicus brief of The Biotechnology Innovation Organization (BIO) submitted.
August 30, 2018 Amicus brief of US Inventor, Inc. submitted.
August 30, 2018 Brief amicus curiae of The Massachusetts Biotechnology Council filed.
August 30, 2018 Brief amicus curiae of American Intellectual Property Law Association in support of neither party filed.
August 30, 2018 Brief amicus curiae of Bar Association of the District of Columbia filed.
August 30, 2018 Brief amicus curiae of Austin Intellectual Property Law Association in support of neither party filed.
August 30, 2018 Brief amicus curiae of Houston Intellectual Property Law Association in support of neither party filed.
August 30, 2018 Brief amicus curiae of The Naples Roundtable in support of neither party filed.
August 30, 2018 Brief amicus curiae of The Intellectual Property Law Association of Chicago in support of neither party filed.
August 30, 2018 Brief amicus curiae of The Biotechnology Innovation Organization (BIO) filed.
August 30, 2018 Brief amicus curiae of US Inventor, Inc. filed.
Teva Pharmaceuticals USA, Inc., et al.


On May 1, 2018, U.S. District Court Judge James V. Selna entered an order dismissing the Commodity Futures Trading Commission’s claims against Monex Deposit Company, Monex Credit Company, Newport Services Corporation (collectively “Monex”), and its principals, Michael Carabini, and Lewis Carabini. Monex is a metals brokerage firm and the CFTC had filed suit against defendants alleging g four causes of action for (1) off-exchange transactions in violation of CEA § 4(a), 7 U.S.C. § 6(a); (2) fraud in violation of CEA § 4b(a)(2)(A), 7 U.S.C. § 6b(a)(2)(A), (C); (3) fraud in violation of CEA § 6(c)(1) and Regulation 180.1(a)(1)–(3), 7 U.S.C. § 9(1) and 17 C.F.R. § 180(a)(1)–(3); and (4) violation of CEA § 4d for failure to register with respect to financed transactions. The CFTC also filed a motion for preliminary injunction pursuant to Section 6c(a) of the Commodity Exchange Act (“CEA”), which the Court dismissed as moot.
We were retained by counsel for the Defendants and David Ross, an Executive Vice President of Compass Lexecon, submitted a declaration in opposition to the CFTC’s preliminary injunction motion. Sam Hollander, Jonathan Polonsky and Yili Wang assisted Mr. Ross. Monex and its principals are represented by Neil A. Goteiner, Jessica K. Nall and C. Brandon Wisoff of Farella Braun & Martel LLP.


Witnesses are essential to the success or failure of a case. A good witness is every trial lawyer’s dream. A poor witness can lay waste to even the best case. Attorneys, obviously, will try to call to the stand those witnesses who are most favorable to their case, however, sometimes attorneys are stuck with a “bad” witness.
As we also know, the calling of expert witnesses is routine and, at trial, experts are necessary to help establish the elements of a case, to explain the issues to the jury and to provide a reasoned and thoughtful narrative. Attorneys will pay high fees for those experts who can positively affect the outcome of the litigation. However, occasionally, an attorney is faced with a situation where the expert’s testimony will not further his client’s case and the expert may, in fact, be a better witness for his adversary than for him. An attorney may decide not to call the witness at trial and, thus, avoid detrimental testimony. But this may create another problem.
In accordance with CPLR § 3101(d), an attorney discloses to opposing counsel the names of expert witnesses and examining physicians he or she plans to call at trial and the nature of the witnesses’ testimony. Likewise, the names and addresses of lay witnesses are also exchanged. In preparing for trial, opposing counsel may realize that these witnesses will actually support his case, but his adversary, perhaps coming to the same conclusion, decides not to call the witness.1 How can the opposing party make use of this incriminating evidence if an attorney fails to call the witness? The answer: New York’s missing witness charge.
Pursuant to New York’s Pattern Jury Instructions 1:75, a party’s failure to call a particular witness could lead to a jury charge allowing an adverse inference to be drawn. If the jury finds the party’s explanation for not calling the witness to be reasonable, the jury is instructed not to consider the failure of the party to call the witness in evaluating the evidence.
This article will initially discuss the definition of what is “noncumulative testimony” in light of a recent 2013 New York Court of Appeals’ decision and will then address the three other preconditions to the missing witness charge.
In DeVito v. Feliciano, the Court of Appeals clarified the noncumulative testimony requirement of the missing witness charge: testimony will be considered cumulative only if it is cumulative of testimony presented by the non-calling party.5 Even if the uncalled witness’s testimony would be cumulative of testimony presented by the party requesting the charge, the judge can still instruct the jury as to the charge. To determine if the testimony would be cumulative, one needs to cross-check the testimony presented by the non-calling party.
In DeVito, the plaintiff alleged injuries to her nose and back as a result of an automobile accident. Plaintiff’s medical records revealed that four months before the accident, plaintiff fell and sustained a minor concussion and an injury to her wrist. At the trial, two doctors testified on plaintiff’s behalf that the motor vehicle accident was “the competent producing cause” of plaintiff’s neck and nose injuries.
Although the jury was capable of making an inference based on such a statement, the jury was not instructed that they could draw the “strongest inference.” Furthermore, the Court stated that the testimony elicited during defense counsel’s cross-examinations was not so conclusive as to cast doubt upon plaintiff’s claims. For these reasons, the Court held that plaintiff was prejudiced by the trial court’s failure to instruct the jury as to the missing witness charge.
Demonstrating that the uncalled witness testimony would be noncumulative in nature is only one piece to the puzzle. The other elements, however, are clearer and simpler than the noncumulative testimony requirement.
4. Noncumulative – the uncalled witness’s testimony would be noncumulative of testimony presented on behalf of the non-calling party.
Failure to call a witness is clearly intentional. The failure is usually an attempt to prevent damaging evidence being provided by a “friendly” witness. This testimony can be devastating to one’s case as opposing counsel will no doubt point out to the jury that the harmful testimony was supplied by someone friendly to that party and therefore it must be true.
The Court of Appeals’ clarified definition of noncumulative testimony should encourage more parties to request the charge and inevitably hold opposing parties accountable for the absence of a vital witness.
1 N.Y. C.P.L.R. § 3101(d)(1) (McKinney 2013) (“Upon request, each party shall identify each person whom the party expects to call as an expert witness at trial and shall disclose in reasonable detail the subject matter on which each expert is expected to testify….”).
2 N.Y. Pattern Jury Instr. 1:75 (2013) (emphasis added).
3 People v. Savinon, 100 N.Y.2d 192, 196, 761 N.Y.S.2d 144, 146-47 (2003) (internal quotation marks omitted).
4 See id. at 197; People v. Gonzalez, 68 N.Y.2d 424, 427, 502 N.E.2d 583 (1986).
5 DeVito v. Feliciano, 22 N.Y.3d 159, 1 N.Y.3d 791 (2013).
9 DeVito v. Feliciano, 2010 WL 6971895 (Sup. Ct. Bronx Cnty, 2010).
10 DeVito v. Feliciano, 84 A.D.3d 645, 924 N.Y.S.2d 330 (1st Dep’t 2011).
11 DeVito, 22 N.Y.3d at 166.
13 Leahy v. Allen, 221 A.D.2d 88, 92, 664 N.Y.S.2d 88 (3d Dep’t 1996).
15 DeVito, 22 N.Y.3d at 165, 167.
16 Feneeck v. First Union Real Estate Equity & Mortg. Invs., 266 A.D.2d 916, 916, 697 N.Y.S.2d 442 (4th Dep’t 1999).
18 People v. Hall, 18 N.Y.3d 122, 936 N.Y.S.2d 630 (2011).
19 Crowder v. Wells & Wells Equip., Inc., 11 A.D.3d 360, 361, 783 N.Y.S.2d 552, 554 (1st Dep’t 2004).
20 See Cohen v. Lukacs, 272 A.D.2d 501, 708 N.Y.S.2d 133 (2d Dep’t 2000) (uncalled witness was unavailable as a matter of law where, at the time of trial, she resided in another state and was “beyond the jurisdiction of the court”); see also Zeeck v. Melina Taxi Co., 177 A.D.2d 692, 576 N.Y.S.2d 878 (2d Dep’t 1991).
21 See N.Y. Pattern Jury Instr. 1:75 cmt. II.C (2013).
22 People v. Gonazalez, 68 N.Y.2d 424, 509 N.Y.S.2d 796.
23 Dukes v. Rotem, 191 A.D.2d 35, 40, 599 N.Y.S.2d 915, 918 (1st Dep’t 1993).
25 See People v. Hall, 18 N.Y.3d at 131, 936 N.Y.S.2d at 630 (holding that the uncalled witness was in a party’s control where the uncalled witness “could have been expected to support his version of events”).
26 Chandler v. Flynn, 111 A.D.2d 300, 301, 489 N.Y.S.2d 289, 291 (2d Dep’t 1985).
27 See In Re Judicial Settlement of Second Intermediate Account of Chase Manhattan Bank, 2 Misc. 3d 1002(A), 784 N.Y.S.2d 921 (Sur. Monroe Cnty. 2004) (holding that the element of control was missing where witness was a former employee of the petitioner); see also People v. Gonzalez, 68 N.Y.2d 424, 502 N.E.2d 583 (1986) (defense counsel entitled to missing witness charge where the people failed to call complainant’s husband as a witness); Buttice v. Dyer, 1 A.D.3d 552, 767 N.Y.S.2d 784 (2d Dep’t 2003) (ex-girlfriend was not under party’s control).
29 People v. Smith, 71 A.D.3d 1174, 1175-76, 898 N.Y.S.2d 599 (2d Dep’t 2010), citing Savinon, 100 N.Y.2d at 196.
30 Diorio v. Scala, 183 A.D.2d 1065, 583 N.Y.S.2d 654 (3d Dep’t1992).
31 Follett v. Thompson, 171 A.D.2d 777, 778, 567 N.Y.S.2d 497, 498 (2d Dep’t 1991).
33 People v. Morris, 140 A.D.2d 551, 552, 528 N.Y.S.2d 630 (2d Dep’t 1988).
34 Early notification “allow[s] the court to appropriately exercise its discretion and the parties to adjust trial strategy.” N.Y. Pattern Jury Instr. 1:75, cmt. (citing People v. Gonzalez, 68 N.Y.2d 424, 509 N.Y.S.2d 796 (1986)).


§ 240-3 Regulations governing operation.
§ 240-4 Conduct of others.
§ 240-5 Conduct of employees and agents.
§ 240-6 Violations and penalties.
Amusements — See Ch. 75.
Fees — See Ch. 150.
Licensing — See Ch. 195.
No person or persons, firm, association, club or corporation shall maintain, operate, conduct or pursue the business or occupation of keeping any public room or place wherein the game commonly known as pool or billiards are played without having first obtained a license therefor pursuant to Chapter 195, Article I, and complying with all provisions of § 240-2.
This chapter shall not apply to any religious, charitable, benevolent or nonprofit association or corporation which operates or maintains up to three pool or billiard tables solely for the recreation and amusement of its members for no charge or fee, provided that such organization is bona fide in character and is not intended as a means or device for avoiding the terms and provisions of this chapter.
Number of tables. No pool or billiard parlor shall have more than 20 pool or billiard tables.
Supervision. Each pool or billiard parlor must be supervised on a full-time basis from 3:00 p.m. until closing by a uniformed person 21 years of age or older who is trained in security. There shall be supervision provided by an adult management attendant during all times that the parlor is open for business.
Anyone under the age of 17 years, before the hour of 3:00 p.m. on any day on which school is in session as established by the Freehold Regional High School District unless that person is accompanied by his parent or legal guardian.
Anyone under the influence of or in the possession of any alcoholic beverage or controlled dangerous substance.
Offering or permitting to be offered any prizes or awards whether in cash or otherwise, as an inducement to using or playing the pool or billiard tables.
Possessing or use of an alcoholic beverage or any controlled dangerous substance.
Creating noise disturbing the peace and comfort of those within or outside the pool or billiard parlor.
Any act which would constitute a violation of any law of the State of New Jersey or of any ordinance of the Township of Freehold.
Blocking or obstructing any exit or passageway leading to an exit.
Permitting the location of a pool or billiard table in an area of the premises which would prohibit a full view of such table from the public areas outside the pool or billiard parlor.
Congregating or loitering of four or more persons immediately outside the licensed premises or in the parking area thereto such that they disturb the peace and comfort of those in the vicinity.
Hours of operation. A pool or billiard parlor shall be operated only between the hours of 8:00 a.m. and 12:00 midnight if the billiard parlor is within 1,000 feet of any residential zone. If the pool or billiard parlor is more than 1,000 feet from any residential zone, then the hours or operation would be restricted to 8:00 a.m. to 1:00 a.m.
Other uses. No other recreational use shall be allowed to be carried on within any pool or billiard parlor.
Associate or employee. No licensee shall knowingly permit any person convicted of a crime involving moral turpitude to be associated with the licensee in the ownership or management of the business or to be in his/her employ.
Free unobstructed space. Five feet of free and unobstructed space shall be maintained around the perimeter of each pool or billiard table, exclusive of aisleways and passageways and exclusive of the unobstructed space to be maintained around every other pool or billiard table on the premises.
Noise. No noise in excess of 65 dba shall emanate from the pool or billiard parlor into adjoining uses, common areas, parking areas or other areas outside of the pool or billiard parlor.
Unobstructed view. The interior layout of the pool or billiard parlor shall be designed to allow a full view of each pool or billiard table from the public areas outside the parlor. The windows and/or doors through which such view is accommodated shall not be obstructed to prohibit such view.
Spectators. The interior layout of the pool or billiard parlor shall be designed to allow all spectators to be seated. All those visiting the parlor and not actively participating in a pool or billiard game shall remain seated in the area provided for spectators.
Conditional use permit. Prior to commencement of business, the licensee must receive a conditional use permit for the proposed location pursuant to § 190-208 of Chapter 190, Land Use.
In accordance with § 195-6, a copy of the license.
The regulations set forth in this chapter prominently displayed at each entrance to the premises and prominently displayed within the premises such that there is one such posting for every 500 square feet of area. The posting shall be headed "Rules of Conduct" in bold print designed to attract the attention of those within the premises.
No person shall violate any provision of § 240-3.
No employee, representative, agent or servant of the licensee shall permit any person to violate any of the provisions of § 240-3.
Violations of the provisions of this chapter shall be punishable as provided in Chapter 1, Article II, General Penalty.


text:
The principal question arising in this case is what estate Mary, the wife of James Page, took under his will -- whether an estate for life or in fee. If the former, then the judgment of the circuit court is to be affirmed; if the latter, then it is to be reversed.
that the testator intends the legacies to be a charge on the land. When, therefore, the testator orders legacies to be paid out of his lands, or where, subject to legacies or after payment of legacies, he devises his lands, courts have held the land charged with the legacies upon the manifest intention of the testator. But here there is no such language. There is no direction that the devisee shall pay the legacies out of the land. The charge is personal, and the case falls directly within the authority of Reeves v. Gower, 11 Mod. 208.
We may, then, proceed to the consideration of the will of James Page, inasmuch as that of his father affords no light to guide us in the construction. The grounds mainly relied on to establish that Mary, the wife of the testator, took a fee are that the legacies given to his sisters are a charge on his real estate in the hands of his widow; that all the rest of his "lands and tenements," in possession, reversion, or remainder, are given; that the devise is subject to the proviso "that she has no lawful issue," which is not a condition merely, but a substitution for an estate intended for his children; and finally that the lands, &c., are devised to her "freely to be possessed and enjoyed," which words are best satisfied upon the supposition of a fee.
estate for life only unless, from the language there used or from other parts of the will, there is a plain intention to give a larger estate. We say a plain intention because if it be doubtful or conjectural upon the terms of the will or if full legal effect can be given to the language without such an estate, the general rule prevails. It is not sufficient that the court may entertain a private belief that the testator intended a fee; it must see that he has expressed that intention with reasonable certainty on the face of his will. For the law will not suffer the heir to be disinherited upon conjecture. He is favored by its policy, and though the testator may disinherit him, yet the law will execute that intention only when it is put in a clear and unambiguous shape.
hold of the introductory clause to assist them in ascertaining the intention. The case of Hogan v. Jackson, Cowper 297, admits this doctrine. That case itself did not turn upon the effect of the introductory clause, but upon the other words of the will, which were thought sufficient to carry the fee, particularly the words, "all my effects, both real and personal." The case of Grayson v. Atkinson, 1 Wils. 333, admits of the same explanation, and besides the inheritance was there charged with debts and legacies.
real estate, there could be no residue of real estate on which the clause could operate.
enlarge the estate of the wife to a fee, since they are not made a personal charge upon her.
"All the rest, residue and remainder of my messuages, lands, &c., after my just debts, legacies, &c., are fully satisfied and paid I give to my executors in trust for my daughters,"
and the question was whether these words passed an estate in fee or for life to the executors. The court decided that they passed a life estate only. The authority of this case was fully established in Moor v. Denn, ex dem. Mellor, 2 Bos. & Pull. 247, in the House of Lords, where words equally extensive occurred, and the authority of this last case has never been broken in upon.
so that the words naturally and properly had relation to the quantity of estate which the testator intended to give J.C. -- that is, all the remainder, which is the same in effect as all his estate. If the words were merely to be referred to the lands he intended to devise to J.C., they would be ineffectual, for it was impossible that he could have any remainder of lands when he had devised all to A.C., so that they must refer to the estate in the lands.
personal estate for payment of debts and legacies; and then the will says, as to the rest "of my goods and chattels, real and personal, moveable and immoveable, as houses, gardens, tenements, my share in the copperas works, &c., I give to the said A." Lord Hardwicke, after some hesitation, held it a fee in A., relying upon the introductory clause, and the charge of the debts and legacies on the land, and upon the language of the residuary clause. Whatever may be the authority of this decision, it certainly does not pretend to rest solely on the residuary clause, and its containing a mixed devise of real and personal estate was not insignificant in ascertaining the testator's intention.
It may also be admitted that the words "lands and tenements" do sometimes carry a fee, and are not confined to a mere local description of the property. But in their ordinary sense, they import the latter only, and when a more extensive signification is given to them in wills, it arises from the context, and is justified by the apparent intention of the testator to use them in such extensive signification. The cases cited at the bar reach to this extent and no further. Their authority is not denied, but their application to the present case is not admitted.
devisee, will, if there be no words of limitation, take only a life estate.
somewhat clash with its authority. In Peiton v. Banks, 1 Vern. 65, the case was that a man devised his lands to his wife for life, and he gave the reversion to A. and B., to be equally divided betwixt them. The court decided that A. and B. took an estate as tenants in common for life only. And Sergeant Maynard stated a similar decision to have been made about twenty years before that time. It is not material, however, to enter upon the delicate inquiry which of these authorities is entitled to most weight, because the present case does not require it.
In respect to the word "tenements," it is only necessary to observe that is has never been construed in a will, independently of other circumstances, to pass a fee. In Canning v. Canning, Moseley 240, and Doe ex dem. Palmer, v. Richards, 3 D. & E. 356, and Denn ex dem. Moor v. Miller, 5 D. & E. 558, S.C. 2 Bos. & Pull. 247, the same term occurred, as well as the broader expression, "hereditaments;" in neither case was the term "tenement" supposed to have any peculiar effect, and the argument attempting to establish a fee upon the import of the word "hereditaments" even in a residuary clause was deliberately overruled by the court. The same doctrine was held in Hopwell v. Ackland, Salk. 239.
annexed to them. It is our duty to give effect to all the words of a will if by the rules of law it can be done. And where words occur in a will, their plain and ordinary sense is to be attached to them unless the testator manifestly applies them in some other sense. But if words are used by him which are insensible in the place where they occur, or their common meaning is deserted and no other is furnished by the will, courts are driven to the necessity of deeming them as merely insignificant or surplusage, and to find the true interpretation of the will without them. In the present case, the words, "all the rest of my lands and tenements" stand wholly disconnected with any preceding clause. There is nothing to which "the rest" has relation, for no other devise of real estate is made. We have no certain guide to the testator's intention in using them. We may indulge conjectures, but the law does not decide upon conjectures, but upon plain, reasonable, and certain expressions of intention found on the face of the will.
to defeat a life estate, as a fee in the whole of the lands. The testator, with a limited property, might justly think it too much to take from his own issue the substance of their inheritance during a long minority in favor of a wife, who might live many years and form new connections. In such an event, leaving her to the general provision of law as to dower would not be unkindness or injustice. But it is sufficient to say that the words are too equivocal to enable the court to ascertain from them the clear purpose of establishing a fee. And if the proviso refers to any lawful issue by any other husband, then it must be deemed a condition subsequent, and in the events which have happened, the estate of the wife, whether it be for life or in fee, has been defeated, and the plaintiffs in error are not entitled to reverse the present judgment. Quacunque via data est, the proviso cannot help the case.
"As touching such worldly estate wherewith it hath pleased God to bless me in this life, I give, . . . in the following manner and form:"
"First of all, I give and bequeath to E.M., my dearly beloved wife, the sum of five pounds, to be paid yearly out of my estate, called G., and also one part of the dwelling house, being the west side, with as much wood craft, home at her, as she shall have need of, by my executors hereafter named. I give . . . unto my son T.M. the sum of five pounds, to be paid in twelve months after my decease. I give unto my granddaughter E. the sum of five pounds, to be paid twelve months after my decease."
"Item. I give unto J.M., and R.M., my two sons, whom I make my and ordain my sole executors, . . . all and singular my lands and messuages, by them freely to be possessed and enjoyed alike."
"I give and bequeath to my brother T.D., a cottage house, and all belonging to it, to him and his heirs forever, W.C. tenant. Also, I give and bequeath to my wife E., whom I likewise make my sole executrix, all and singular my lands, messuages, and tenements, by her freely to be possessed and enjoyed."
encumbered the estate, the words must have meant to pass a fee, or they would have no meaning at all. Mr. Justice Le Blanc added that the words used were not inconsistent with a life estate only, and he distinguished between them and the words "freely to be disposed of," admitting that the latter would pass a fee. So that, taking both these cases together, the fair deduction is that the words "freely to be possessed," &c., are too uncertain of themselves to raise a fee, but they may be aided by other circumstances.
The case before us is far less strong than either of the foregoing cases, for there is no introductory clause showing an intention to dispose of the whole property, as there was both in Goodright v. Barron and Loveacres v. Blight, nor is there any encumbrance created by the testator on the land, which was the decisive circumstance that governed the latter.
Upon the whole, upon the most careful examination, we cannot find a sufficient warrant in the words of this will to pass a fee to the wife. The testator may have intended it, and probably did, but the intention cannot be extracted from his words with reasonable certainty, and we have no right to indulge ourselves in mere private conjectures.
See Roe ex dem. Peter v. Day, 3 M. & S. 518; 5 East 87; 4 East 495.
See Lord Hardwicke's comments on this case in Bailis v. Gale, 2 Vesey 48.

matches: v. v. v. v. v. v. v. v. v. v. v. v. v.


(1) Combined group--Taxable entities that are part of an affiliated group engaged in a unitary business and that are required to file a combined group report under Tax Code, §171.1014.
(A) A combined group may not include a taxable entity that conducts business outside the United States if 80% or more of the taxable entity's property and payroll are assigned to locations outside the United States. If either the property factor or payroll factor is zero, the denominator is one. For example, if Corporation Z has no property, but does have payroll located entirely outside the United States, Corporation Z will not be included in the combined group. The combined group may not include a taxable entity that conducts business outside the United States and has no property or payroll if 80% or more of the taxable entity's gross receipts are assigned to locations outside the United States. See Tax Code, §171.1014.
(B) A combined group may not include an exempt entity.
(C) A combined group must include eligible entities even if those entities do not have nexus as described in §3.586 of this title (relating to Margin: Nexus).
(D) Eligible pass-through entities including partnerships, limited liability companies taxed as partnerships under federal law, limited liability companies that are disregarded under federal law and S corporations are included in a combined group.
(E) Passive entities are not included in the combined group; however, the pro rata share of net income from a passive entity shall be included in total revenue to the extent it was not generated by the margin of another taxable entity.
(2) Directly used in qualified research--Having an immediate use in qualified research activity, without an intervening or ancillary use.
(3) Franchise tax research and development activities credit--A credit against franchise tax for qualified research activities that is allowed under Tax Code, Chapter 171, Subchapter M (Tax Credit for Certain Research and Development Activities).
(4) Internal Revenue Code--The Internal Revenue Code of 1986 in effect on December 31, 2011, excluding any changes made by federal law after that date, but including any regulations adopted under the code applicable to the tax year to which the provisions of the code in effect on that date applied.
(5) Qualified research--This term has the meaning given in Internal Revenue Code, §41.
(A) Qualified research means research undertaken for discovering information that is technological in nature, and its application must be intended for use in developing a new or improved business component of the person undertaking the research. Substantially all of the activities of the research must be elements of a process of experimentation relating to a new or improved function, performance, reliability, or quality.
(ix) research funded by another person or governmental entity.
(6) Registrant--A person who holds a Texas Qualified Research Registration Number issued by the comptroller.
(7) Registration number--The Texas Qualified Research Registration Number issued by the comptroller to a person who submits the Texas Registration for Qualified Research and Development Sales Tax Exemption form.
(8) Taxable entity--This term has the meaning given by Tax Code, §171.0002 (Definition of Taxable Entity).
(b) Depreciable tangible personal property used in qualified research.
(D) is directly used in qualified research. Depreciable tangible personal property is directly used in qualified research if it is used in the actual performance of activities that are part of the qualified research. For example, machinery, equipment, computers, software, tools, laboratory furniture such as desks, laboratory tables, stools, benches, and storage cabinets, and other tangible personal property used by personnel in the process of experimentation are directly used in qualified research. Tangible personal property is not directly used in qualified research if it is used in ancillary or support activities such as administration, maintenance, marketing, distribution, or transportation activities, or if it is used in activities excluded from qualified research. For example, machinery and equipment used by administrative, accounting, or clerical personnel are not directly used in qualified research.
(2) A person may not claim the exemption if that person will, as a taxable entity or as a member of a combined group, claim a franchise tax research and development activities credit on a franchise tax report based on the accounting period during which the depreciable tangible personal property used in qualified research would first be subject to Texas sales or use tax.
(3) A claim for a carryforward of an unused franchise tax research and development activities credit under Tax Code, §171.659 does not affect a person's ability, as a taxable entity or as a member of a combined group, to claim the sales and use tax exemption provided by paragraph (1) of this subsection.
(c) Texas Qualified Research and Development Exemption Registration. In order to claim an exemption under this section, a person must first register with the comptroller and obtain a registration number.
(1) Registration procedure. To obtain a registration number, a person must complete Form AP-234, Texas Registration for Qualified Research and Development Sales Tax Exemption, its electronic equivalent, or any form promulgated by the comptroller that succeeds such form.
(A) The person requesting the registration number must certify that it will not, as a taxable entity or as a member of a combined group, claim a franchise tax research and development activities credit on a franchise tax report based on an accounting period during which it claims an exemption under subsection (b) of this section.
(B) The person requesting the registration number must provide all data and information required by the comptroller to administer the exemption and comply with Tax Code, §151.3182(c).
(2) Retroactive registration. A person may request that a registration number be given retroactive effect.
(A) A person may request that a registration number have retroactive effect by submitting a registration as required under paragraph (1) of this subsection and by completing an annual information report, described in paragraph (3) of this subsection, for each prior year for which the registration number is to be effective.
(B) The registration number may be made retroactive to the later of January 1, 2014, or a date requested by a registrant that is no more than four years prior to the date the registration is received, if the date requested is not within an accounting period during which the registrant, as a taxable entity or as a member of a combined group, claimed the franchise tax research and development activities credit.
(C) A registrant who is issued a retroactive registration number may file a claim for refund of Texas sales and use tax paid on purchases made on or after the later of January 1, 2014, or the effective date of the registration number, that qualify for exemption under subsection (b) of this section, in accordance with the requirements of §3.325 of this title (relating to Refunds and Payments Under Protest).
(D) A claim for a carryforward of an unused franchise tax research and development activities credit under Tax Code, §171.659 does not affect a person's ability, as a taxable entity or as a member of a combined group, to request a retroactive registration.
(3) Annual information report. A registrant must submit an annual information report for each calendar year its registration number is effective, irrespective of the date on which the original registration occurred.
(A) The registrant must provide all data and information required by the comptroller to administer the exemption and comply with Tax Code, §151.3182(c).
(B) The annual information report must be submitted electronically unless the comptroller issues a waiver. A registrant who cannot comply with this requirement due to hardship, impracticality, or other valid reason must submit a written request to the comptroller for a waiver of the requirement.
(C) The due date for the annual information report for the preceding calendar year is March 31. If March 31 falls on a Saturday, Sunday, or a legal holiday, the due date is the next business day.
(i) An annual information report filed electronically must be completed and submitted by 11:59 p.m. central time on the due date to be considered timely.
(ii) Reports submitted on paper must be postmarked on or before the due date to be considered timely.
(D) A registrant who fails to timely file an annual information report for its registration number will be given written notice of the failure to file. If an annual information report is not submitted within 60 days of the date of the notice of failure to file, the registration number will be cancelled by the comptroller in accordance with paragraph (5) of this subsection.
(4) Direct payment permit holders. A direct payment permit holder must obtain a registration number as required by paragraph (1) of this subsection in order to claim an exemption under this section. A direct payment permit holder with a registration number must file an annual information report for each year the number is effective as required by paragraph (3) of this subsection.
(5) Cancellation of registration number by the comptroller. The comptroller will cancel the registration number of a registrant who fails to comply with the provisions of this section. For example, the comptroller will cancel the registration number of a registrant who fails to file an annual information report or who claims the franchise tax research and development activities credit without first cancelling its registration number, as required by paragraph (8) of this subsection. The comptroller shall give written notice of the cancellation to the registrant. The notice may be personally served on the registrant or sent by regular mail to the registrant's address as shown in the comptroller's records. The former registrant may not claim an exemption under this section during the period when the registration number is cancelled. A former registrant that purchases an item under a cancelled registration number may be subject to a criminal penalty under Tax Code, §151.707 and §3.287(d)(3) of this title (relating to Exemption Certificates).
(6) Effective date of cancellation. A registrant whose registration number is cancelled by the comptroller is responsible for remitting Texas sales and use tax, and penalty and interest from the date of purchase, on any items purchased tax-free pursuant to Tax Code, §151.3182 on or after the effective date of cancellation. In the case of a registrant whose registration number is cancelled because the registrant, as a taxable entity or as a member of a combined group, claimed the franchise tax research and development activities credit, the effective date of cancellation is the beginning date of the accounting period covered by the franchise tax report on which the credit was claimed.
(7) Reinstatement following cancellation. A former registrant who has had its registration number cancelled by the comptroller may submit a request in writing to have the registration number reinstated.
(A) A former registrant whose registration number has been cancelled may request reinstatement of the number be given retroactive effect. The registrant must file an annual information report for each prior year for which the registration number is to be effective.
(B) A registration number will not be reinstated for periods during which the former registrant is not eligible for the exemption under this section.


text:
The Complainant is Planet 10 Spirits, LLC, Chicago, United States of America, represented by Michael Best & Friedrich, LLP, United States of America.
The Respondent is Adam Hyatt dba Cyber Aim, Miami, United States of America, according to the confirmation provided in the whois and the Registrar’s verification response. According to the confirmation provided in the Response, the Respondent is located in Dhaka, Bangladesh.
The disputed domain name <effen.com> is registered with Domainnamebidder, LLC.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 3, 2007. On July 5, 2007, the Center transmitted by email to Domainnamebidder, LLC a request for registrar verification in connection with the domain name at issue. On July 11, 2007, Domainnamebidder, LLC transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. 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 paragraphs 2(a) and 4(a) of the Rules, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on July 12, 2007. In accordance with paragraph 5(a) the Rules, the due date for Response was August 1, 2007. Upon request by the Respondent and in the absence of any comments by the Complainant, this time limit was extended by the Center until August 6, 2007 in accordance with paragraph 5(d) of the Rules. The Response was filed with the Center on August 7, 2007. On August 23, 2007, the Complainant filed a supplemental submission with the Center which was forwarded to the Panel on August 24, 2007. On August 24, 2007, the Respondent replied to the Complainant’s supplemental submission. The same day, the Complainant replied to the Respondent’s submission. Both communications were transmitted to the Panel.
The Center appointed Brigitte Joppich as the sole panelist in this matter on August 14, 2007. 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 paragraph 7 of the Rules.
The Complainant in this administrative proceeding is Planet 10 Spirits, LLC, a company established in the United States of America and a producer of distilled spirits, including vodka. The Complainant is the owner of various EFFEN trademarks, including US word mark EFFEN (reg. no. 2788499) and US word mark and device EFFEN (reg. no. 2788500, containing the word in stylized form), both filed on November 18, 2002 for vodka and registered on December 2, 2003 (the “EFFEN Marks”). The Complainant has also applied for registration of another word mark EFFEN with the United States Patent and Trademark Office on May 7, 2007 (serial number 77174439) for financial sponsorship of entertainment events, fashion shows, nightlife and lifestyle events, sporting events, cultural events and music performances.
The Respondent is, in its own words, an “underground lifestyle management company with lifestyle products and events in South Asia”. The Respondent is the owner of a Community trademark application EFFEN (no. 005954391), filed on May 31, 2007 for goods and services in international classes 3, 9, 14, 18, 25 and 41. The disputed domain name <effen.com> was registered by the Respondent on August 24, 2006.
The word “effen” is Dutch and translates into English as “even” or “smooth”.
(i) The domain name <effen.com> is identical to the Complainant’s well known, long established EFFEN Marks. Effen vodka is among the leading premium luxury distilled spirits brands and as such well recognized and highly regarded in the trade and among customers. The Complainant actively promotes Effen by sponsoring lifestyle and entertainment events, including fashion shows, nightlife events, sporting events, cultural events and music performances. As a result of its substantial and extensive advertising, the Complainant has acquired valuable goodwill in the EFFEN Marks.
(ii) The Complainant further contends that the Respondent has no rights or legitimate interests in the disputed domain name, as the Respondent is not commonly known by the disputed domain name, as it is unconceivable that the Respondent registered <effen.com> without regard or reference to the EFFEN Marks, as the Respondent sought to improperly trade on the Complainant’s goodwill, which is not a legitimate non-commercial or fair use of the domain name, and as the Complainant is and continues to be damaged by the Respondent’s registration of the disputed domain name.
(iii) The Complainant finally contends that the domain name was registered and is being used in bad faith. With regard to bad faith registration, the Complainant contends that the Respondent is using an Effen logo that is strikingly similar to the Complainant’s logo, is using content copied from the Complainant’s web site and is offering goods and services which are competitive to those where the Complainant has firmly established its reputation and rights. The Complainant also states that by registering a domain name identical to the Complainant’s marks, the Respondent has intentionally attempted to attract for commercial gain Internet users to the Respondent’s web site by creating a likelihood of confusion with the Complainant’s well-known mark as to the source, sponsorship, affiliation or endorsement of the Respondent’s web site and/or services offered by means of the disputed domain name. Finally, the Respondent has made no attempt to explain or justify its actions in response to the Complainant’s multiple attempts to communicate with the Respondent.
(i) The Respondent contends that he has developed a well-known underground lifestyle management company with lifestyle products and events all over South Asia since 1999 under the name of Effen, while he cannot provide proof and sample of its designed products and events due to severe flooding in Bangladesh. The Respondent further states that the Complainant’s trademark no. 77174439 is only an application and not a registered right and was filed on May 7, 2007, only, i.e. long after <effen.com> was registered and used for lifestyle products, events and services. The Respondent also claims that in response to the first letter of warning sent by the Complainant, he removed the “effen” definition allegedly copied from the Complainant’s website to avoid further confrontation and legal cost, even though he had never copied any materials, content or images from the Complainant’s website, as “effen” is simply a Dutch word.
(ii) The Respondent argues that he enjoys rights or legitimate interests in respect of the domain name, which is descriptive, while the Complainant’s EFFEN Marks are not inherently distinctive, and that the Complainant’s domain name <effenvodka.com> is neither identical nor confusingly similar to the Respondent’s domain name <effen.com>. Therefore, the Respondent has a legitimate interest in using Effen, while the Complainant does not have exclusive rights to use such term. The Respondent denies to have known of the Complainant’s mark at the time when he acquired the disputed domain name in a free market from a third party. He contends that he could not have copied the logo on the Complainant’s website as his logo is not in any similar font or style as compared to the Complainant’s logo. The Respondent applied for registration of EFFEN as a Community trademark well before receiving any notice of this dispute.
(iii) As to registration and use in bad faith, the Respondent contends that the domain name <effen.com> was not registered or acquired primarily for the purpose of selling, renting, or otherwise transferring it to the Complainant or to a competitor of the Complainant, for valuable consideration in excess of the Respondent’s out-of-pocket costs directly related to the domain name. In fact, the Respondent has never offered to sell the domain name <effen.com> to the Complainant. The domain name was not registered in order to prevent the Complainant from reflecting the mark in a corresponding domain name either. The Complainant and the Respondent are not competitors and the domain name was not registered by the Respondent to disrupt the Complainant’s business. The domain name was not registered by the Respondent in an intentional attempt to attract for commercial gain Internet users to the Respondent’s web site or other on-line location by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s web site or location or of a product or service on the Respondent’s web site or location. The Complainant always mentions vodka in relation to its alleged events, which suggested that the Complainant is in fact engaged in promoting vodka, and not events, lifestyle or any (other) products or services that the Respondent is offering. The Respondent claims to have repeatedly felt threatened by the Complainant.
Finally, the Respondent asks for a finding of reverse domain name hijacking in this case: The Complainant filed a trademark registration for lifestyle services on May 7, 2007, long after the disputed domain name was registered and used by the Respondent for lifestyle products, events and services. Moreover, the Respondent investigates whether the Complainant used third party software (“reverse Google bomb”) to lower the rank of the Respondent’s Effen lifestyle products and services allocated by the Google search engine.
The Respondent did not file its response within the time limit set by the Center (which had previously been extended as per the Respondent’s request) but only one day later. According to paragraph 14 of the Rules, the Panel need not have regard to the response in this case (but can take it into account if there are good reasons for it to apply its discretion) and draw inferences it considers appropriate. Responses submitted late were considered by previous panels in particular where they were filed before commencement of the decision-making process (cf. e.g. J.P. Morgan & Co., Incorporated and Morgan Guaranty Trust Company of New York v. Resource Marketing, WIPO Case No. D2000-0035) or where the lateness did not delay the decision (cf. e.g. Young Genius Software AB .v. MWD, James Vargas, WIPO Case No. D2000-0591). Although this Panel is also aware of decisions by previous panels rejecting out of time responses, it considers it more important that each party is given a fair opportunity to present its case than to penalize the Respondent for a slight delay. The response is therefore accepted.
The next point to be dealt with is the admissibility of the Complainant’s supplemental submission. The Rules do not allow the parties to file supplemental submissions on their own volition and paragraph 12 of the Rules provides that a panel may in its sole discretion request further statements or documents from either of the parties. Thus, no party has the right to insist upon the admission of additional arguments or evidence. Grounds justifying new submissions are above all the existence of new pertinent facts that did not arise until after the complaint was filed. In particular, if the respondent raises objections that could not have been anticipated when the complaint was filed, the panel can give the complainant a right to reply to the submission or may accept the complainant’s unsolicited additional submission (see Universal City Studios, Inc. v. G.A.B. Enterprises, WIPO Case No. D2000-0416; QNX Software Systems Ltd. v. Future Media Architects, Inc. and Thunayan K AL-Ghanim, WIPO Case No. D2003-0921; Goldline International, Inc. v. Gold Line, WIPO Case No. D2000-1151). This is the case here, as the Complainant’s supplemental submission deals with the late filing of the Response which could not have been anticipated at the moment of the filing of the Complaint. However, according to the considerations outlined above with regard to the late filing of the response, the supplemental submission by the Complainant is not accepted by the Panel because of its late arrival: it was filed 17 days after the response had been submitted and reached the Panel only when this administrative decision had already been finalized. For the same reasons the Respondent’s supplemental communication and the Complainant’s second supplemental communication are also disregarded.
The disputed domain name fully incorporates the EFFEN Marks.
Furthermore, it is well established that the specific top level domain name is not an element of distinctiveness that can be taken into consideration when evaluating the identity and similarity of the complainant’s trademark and the disputed domain name (cf. Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr., WIPO Case No. D2000-1525; Phenomedia AG v. Meta Verzeichnis Com, WIPO Case No. D2001-0374).
The domain name is therefore identical to a trademark in which the Complainant has rights and the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy.
The Panel needs to decide whether the name Effen was used by the Respondent in connection with a bona fide offering of goods or services or whether the Respondent has been commonly known by the domain name. Although the Respondent claims to have used the Effen name since 1999 and to have spent significant money on research and development of its lifestyle products and services, not a single piece of evidence has been submitted to the Panel to support these allegations. It is unlikely that all evidence of the Respondent’s alleged extensive use of the Effen name for eight years was destroyed by natural disaster, in particular as the Respondent seems to also spend time in the United States of America on a regular basis.
The Community trademark application filed by the Respondent on May 31, 2007, i.e. well after the Complainant first wrote to him, is not sufficient to establish any rights in this regard either.
Finally, the Respondent is arguing that he has merely been using a descriptive domain name in good faith. However, the term “effen” is Dutch and not commonly known in the United States of America where both the Complainant and the Respondent are apparently doing business, nor in Bangladesh where the Respondent is also active. Furthermore, the Respondent has not used the domain name in a descriptive way but in connection with content copied from the Complainant’s web site. As a result, “effen” cannot be considered as a descriptive domain name in this case.
As a result, the Respondent cannot rely on rights or legitimate interests under paragraph 4(c) of the Policy and the requirements of paragraph 4(a)(ii) of the Policy are met.
- The Respondent has an address in the United States of America and apparently regularly spends some time in the United States of America. Given the Complainant’s marketing efforts and expenditure, it is in the view of the Panel unlikely that the Respondent could have been unaware of the Complainant’s EFFEN Marks.
- The stylized version of the word “effen” used by the Respondent is very similar to the Complainant’s version. Moreover, the Respondent’s website at “www.effen.com” originally reflected three possible ways to translate “effen” from Dutch into English – just as the Complainant’s web site at “www.effenvodka.com” does.
- The business activities of the Respondent in the lifestyle sector are complementary to the Complainant’s field of business – the selling of fashionable distilled spirits is by the general public easily associated with a certain lifestyle, where products described by the Respondent as e.g. accessories, glasses, watches also belong.
The Respondent also used the disputed domain name in bad faith: By fully incorporating the EFFEN Marks into the domain name and using a stylized version thereof on his web site, similar to the version used by the Complainant, the Respondent has created a likelihood of confusion with the Complainant’s marks as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website and tried to divert Internet users to such website for commercial gain.
As a result, the Complainant has also established registration and use in bad faith under paragraph 4(a)(iii) of the Policy.
The Respondent requests a finding of reverse domain name hijacking. This is defined in the Rules as “using the Policy in bad faith to attempt to deprive a registered domain-name holder of a domain name”. Moreover, paragraph 15(e) of the Rules provides as follows: “If after considering the submissions the Panel finds that the complaint was brought in bad faith, for example in an attempt at Reverse Domain Name Hijacking or was brought primarily to harass the domain-name holder, the Panel shall declare in its decision that the complaint was brought in bad faith and constitutes an abuse of the administrative proceeding”.
In the present case, where the Complainant owns several registered marks identical to the second level domain name and clearly predating the Respondent’s domain name registration, there is no room for a reverse domain name hijacking order.
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 <effen.com> be transferred to the Complainant.
This is an Addendum to the Administrative Panel Decision (“Decision”) dated August 28, 2007 with regard to the disputed domain name <effen.com>.
On September 5, 2007, the Respondent contacted the WIPO Arbitration and Mediation Center (“Center”) by telephone noting that the Panel appeared not to have taken into account a certain piece of material provided in one copy to the Center by the Respondent with the hard copy of its Response: specifically, a black diary stamped with the disputed domain name. On the same day, the Center checked the case record, and ascertained that such copy had indeed been provided and inadvertently not been included in the case record provided to the Panel. The Center immediately advised the Panel of this fact by telephone and email, forwarding the said document.
The Respondent confirmed the above in an email to the Center on September 6, 2007, in which it stated further that it distributes “thousands” of complimentary diaries/yearly planners and other merchandise and promotional materials, and that the provided diary is an example of these. The Respondent further requested that the case be presented to a new Panel.
The Panel has now considered the material provided by the Respondent and forwarded to it by the Center. The Panel finds it is appropriate to deal with this matter by way of the present Addendum, and sees no reason why, due to a mere inadvertent omission by the Center, this case should be decided by a new UDRP Panel.
The Panel notes that the material provided by the Respondent appears to be a black diary or yearly planner of black synthetic material bearing on its cover the words “EFFEN 2007” and “www.effen.com”. The inside cover sheet bears the words “With the best Compliments from Adam Hyatt” and includes further contact details, such as “ADAM@EFFEN.COM”. While the Panel finds that the diary warrants its consideration, if the Panel had had the diary before it in making the above Decision, such consideration would not have changed the outcome. This is so for the following reasons. While the provided material does establish that the Respondent has made at least some use of the markings “EFFEN” and “www.effen.com” at some point by way of printing these on a diary, it does not of itself establish that the Respondent was using the disputed domain name in connection with a bona fide offering of goods prior to receiving notice of the current dispute. Apart from the fact that the diary does not establish, as claimed by the Respondent, that it has been produced in “thousands” of complimentary copies, this 2007 diary does not establish that the Respondent has been using the name “Effen” since 1999, as was claimed by the Respondent, or at any other time prior to the Complainant�s obtaining trademark rights. The Panel also notes in this regard the complete absence of any supporting material indicating for example production runs, costs, marketing, sales and/or distribution over time for any of the claimed products. The Panel has noted the Respondent�s claim that it was unable to provide additional evidence due to severe flooding in Bangladesh, and that the due date for submission of the Response was extended on this claimed basis. However, apart from the fact that no evidence of such claims has been provided, other ways of confirming the claimed commercial activities (such as through customers) presumably would have been available. The only piece of supporting material that has been provided by the Respondent is incapable of fixing any of its claims at a particular point in time. Accordingly, the Panel does not consider on balance that the Respondent has succeeded in answering the Complainant�s case, based on a trademark registered by the Complainant in 2003, that it lacks rights or legitimate interests in the disputed domain name.
The Panel reiterates its finding that the Respondent has no rights or legitimate interests in the domain name, and that it was registered and is being used in bad faith.
The Sole Panelist accordingly reaffirms the Decision in favor of the Complainant and reaffirms the requirement that the registration of the domain name be transferred to the Complainant.

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