text:
Justia › US Law › Case Law › Oregon Case Law › Oregon Supreme Court Decisions › 2018 › Gist v. Zoan Management, Inc.
Gist v. Zoan Management, Inc.
Plaintiff Jeff Gist worked as a driver for defendant Driver Resources, LLC. The other two defendants were related companies. In November 2013, plaintiff filed a class-action complaint against defendants, on behalf of himself and other similarly situated drivers. At issue was defendants’ compliance with Oregon’s wage and hour laws. In January 2014, defendants filed a petition to compel arbitration, on the basis of an agreement that plaintiff had signed with one defendant. Plaintiff responded to the petition by arguing that the agreement was unconscionable, and therefore that arbitration should not be compelled. The trial court granted defendants’ petition, requiring plaintiff to proceed to arbitration. Plaintiff made several attempts to obtain appellate review of the trial court’s order compelling arbitration. This case required the Oregon Supreme Court to determine whether the Court of Appeals correctly dismissed plaintiff’s appeal of a judgment dismissing his complaint with prejudice on the grounds that the appeal was barred by the Supreme Court’s decision in Steenson v. Robinson, 385 P2d 738 (1963). That decision set out the common-law rule that a party may not appeal from a voluntarily-requested judgment. The Court concluded the judgment was appealable and remanded the case to the Court of Appeals.
No. 54 October 25, 2018 729 IN THE SUPREME COURT OF THE STATE OF OREGON Jeff GIST, individually and on behalf of all similarly situated, Petitioner on Review, v. ZOAN MANAGEMENT, INC.; Senvoy, LLC; and Driver Resources, LLC, a domestic limited liability company, Respondents on Review. (CC 131115916) (CA A159509) (SC S064925) On review of an order of the Court of Appeals.* Argued and submitted May 10, 2018. Lisa T. Hunt, Law Office of Lisa T. Hunt, LLC, Eugene, argued the cause and filed the briefs for the petitioner on review. Charles J. Paternoster, Parson Farnell & Grein, LLP, Portland, argued the cause and filed the brief for the respondents on review. Before Walters, Chief Justice, and Balmer, Kistler, Nakamoto, Flynn, and Duncan, Justices, and Landau, Senior Justice pro tempore.** BALMER, J. The order of the Court of Appeals is reversed, and the case is remanded to the Court of Appeals for further proceedings. ______________ ** On review of Court of Appeals Order Denying Reconsideration, James C. Egan, Chief Judge (Feb 8, 2017), of Order of Dismissal, James W. Nass, Appellate Commissioner (Sept 8, 2016). Appeal from Multnomah County Circuit Court, Adrienne C. Nelson, Judge. ** Nelson, J., did not participate in the consideration or decision of this case. 730 Gist v. Zoan Management, Inc. Case Summary: In a civil action, defendants successfully petitioned for an order compelling arbitration. In response, plaintiff dismissed the action with prejudice and appealed the general judgment of dismissal. The Court of Appeals dismissed the appeal, holding that under Steenson v. Robinson, 236 Or 414, 385 P2d 738 (1963), a plaintiff could not appeal from a voluntary dismissal. Held: (1) Steenson did not bar plaintiff’s appeal; and (2) the Oregon Uniform Arbitration Act did not bar plaintiff’s appeal. The order of the Court of Appeals is reversed, and the case is remanded to the Court of Appeals for further proceedings. Cite as 363 Or 729 (2018) 731 BALMER, J. This case requires us to determine whether the Court of Appeals correctly dismissed plaintiff’s appeal of a judgment dismissing his complaint with prejudice on the grounds that the appeal was barred by this court’s decision in Steenson v. Robinson, 236 Or 414, 385 P2d 738 (1963). That decision set out the common-law rule that a party may not appeal from a voluntarily-requested judgment. For reasons we explain below, we conclude that the judgment was appealable and remand the case to the Court of Appeals. We are not asked to—and we do not—express any view on the merits of plaintiff’s appeal or on the reviewability of the issues raised by plaintiff in his appeal. Plaintiff worked as a driver for defendant Driver Resources, LLC. The other two defendants are related companies. In November 2013, plaintiff filed a class-action complaint against defendants, on behalf of himself and other similarly situated drivers. At issue was defendants’ compliance with Oregon’s wage and hour laws, as set out in ORS chapters 652 and 653. In January 2014, defendants filed a petition to compel arbitration, on the basis of an agreement that plaintiff had signed with one defendant. Plaintiff responded to the petition by arguing that the agreement was unconscionable, and therefore that arbitration should not be compelled. The trial court granted defendants’ petition, requiring plaintiff to proceed to arbitration. Plaintiff made several attempts to obtain appellate review of the trial court’s order compelling arbitration. First, plaintiff filed an interlocutory appeal, arguing that the order compelling arbitration was appealable under ORS 19.205(2), which allows interlocutory appeals of court orders affecting substantial rights. The Court of Appeals dismissed that appeal on the grounds that the order compelling arbitration was not appealable. Second, in December 2014, plaintiff asked the trial court to amend its order compelling arbitration to state that the order presented “a controlling question of law as to which there is substantial ground for difference of opinion” for the purposes of ORS 19.225, a statute that gives the Court of Appeals discretion to hear interlocutory appeals in cases involving class actions in which 732 Gist v. Zoan Management, Inc. the trial court makes such a finding. The trial court denied that motion. Finally, in March 2015, plaintiff moved to dismiss all of his claims with prejudice. Plaintiff explained to the court that the order compelling arbitration effectively precluded any recovery by plaintiff, because plaintiff was unemployed and could not afford to pay the arbitrators, and that the purpose of the dismissal was to allow plaintiff to appeal the judgment and obtain review of the order compelling arbitration. Plaintiff’s counsel stated, “If we do not convince the Court of Appeals or if we get AWOP’d and nobody wants to hear it or write an opinion on it, then the case is over, my client loses, it’s done.” The trial court, without expressing a view on plaintiff’s factual contentions, granted the motion to dismiss and entered a general judgment of dismissal with prejudice, one that made clear that the dismissal was at plaintiff’s request. Plaintiff filed an appeal from that judgment in the Court of Appeals. Defendants moved to dismiss the appeal on two grounds. First, defendants argued that this court’s decision in Steenson prevented appeal of a voluntary dismissal. Second, defendants argued that plaintiff’s attempt to appeal an order granting a motion to compel arbitration is barred by ORS 36.730, which governs certain appeals in cases involving arbitration. They contended that that statute creates an exception to ORS 19.205(1), which generally permits appeal of a general judgment. The Appellate Commissioner rejected defendants’ second argument, determining that ORS 19.205(1), in combination with ORS 19.245, provided a statutory basis allowing plaintiff to appeal the general judgment of dismissal.1 However, the Appellate Commissioner held that Steenson prevented plaintiff from taking an appeal and entered an order dismissing the appeal on that ground. Plaintiff petitioned for reconsideration of the Appellate Commissioner’s decision by the Court of Appeals. That petition was denied. Plaintiff then filed a petition for review of the dismissal of the appeal in this court, which we allowed. Under ORAP 7.55, as authorized by ORS 2.570(6), the Appellate Commissioner for the Court of Appeals has authority to “rule on motions and issue orders in procedural matters in the Court of Appeals.” ORS 2.570(6). 1 Cite as 363 Or 729 (2018) 733 ORS 19.205(1) provides that “[u]nless otherwise provided by law, a limited judgment, general judgment or supplemental judgment, as those terms are defined by ORS 18.005, may be appealed as provided in this chapter.” In this case, plaintiff attempts to appeal a general judgment. ORS 19.245(1) provides that, subject to exceptions that do not apply here, “any party to a judgment may appeal from the judgment.” Those statutes authorize plaintiff to appeal the general judgment of dismissal entered here, unless some other rule of law prevents the appeal. As they did before the Court of Appeals, defendants argue that two separate legal rules bar plaintiff’s appeal in this case. First, defendants argue that this court’s decision in Steenson prevents plaintiff from appealing. Steenson announced a common law rule “that a party may not appeal from a judgment which he voluntarily requested.” 236 Or at 416-17. Second, defendants argue that a provision of the Oregon Uniform Arbitration Act, ORS 36.730, bars plaintiff’s appeal. That statute permits interlocutory appeals of orders “denying a petition to compel arbitration,” ORS 36.730(1)(a), or “granting a petition to stay arbitration,” ORS 36.730(1)(b), but contains no analogous provision permitting an interlocutory appeal of an order granting a petition to compel arbitration. Defendants draw from that omission the inference that an order compelling arbitration is not subject to an interlocutory appeal and that any challenge to such an order must come in a post-arbitration appeal from a judgment that follows the arbitration decision. We first turn to Steenson, which was the basis for the Appellate Commissioner’s order dismissing plaintiff’s appeal. As to Steenson, plaintiff’s arguments are twofold. Plaintiff first argues that revisions to Oregon’s statutes concerning judgments and appealability, most notably in Oregon Laws 2003, chapter 576, section 85, have displaced the common-law rule announced in Steenson. Presently, as noted, ORS 19.205(1) provides that “[u]nless otherwise provided by law, a limited judgment, general judgment or supplemental judgment * * * may be appealed as provided in this chapter.” In addition, ORS 19.245(1) entitles “any party to a judgment” (emphasis added) to take an appeal. Plaintiff 734 Gist v. Zoan Management, Inc. argues that by enacting those explicit and comprehensive statutes permitting any party to a judgment to appeal that judgment, the legislature abrogated the Steenson rule. The flaw in plaintiff’s argument is that there is no material difference between the text of the statutes that plaintiff relies upon and the text of the equivalent statutes when Steenson was decided. Former 19.020 (1963), the analogous provision to ORS 19.245, stated that “[a]ny party to a judgment or decree, other than a judgment or decree given by confession or for want of an answer, may appeal therefrom.” And former ORS 19.010(1) (1963), the predecessor of ORS 19.205(1), provided that “[a] judgment or decree may be reviewed on appeal as prescribed in this chapter.” Thus, although there are modest differences between former ORS 19.010(1) (1963) and current ORS 19.205(1), none appear to have been intended to displace the Steenson rule. In fact, the most significant change cuts in the other direction. ORS 19.205(1), unlike former ORS 19.010(1) (1963), begins with the caveat “[u]nless otherwise provided by law.” Since common-law rules, like that announced in Steenson, form part of the law, that addition indicates that the enactment of ORS 19.205 did not, and was not intended to, abrogate Steenson. Neither party has presented any legislative history—nor has our own review disclosed any—that suggests otherwise. As a result, we conclude that the rule set out in Steenson remains good law. Plaintiff’s second argument is that, even if Steenson does apply generally, it has an exception that is applicable to this case. In Steenson, this court suggested that the rule against appeal of a voluntary nonsuit might not apply “[i]f the plaintiff takes a nonsuit because of a ruling which precludes recovery.” Steenson, 236 Or at 417 (emphasis added). Plaintiff argues that this exception applies to his case because the cost and limitations involved in arbitrating his claims mean that, as a practical matter, he cannot afford to proceed with the arbitration. Plaintiff also recognizes that, because the dismissal was with prejudice, if he loses on appeal he cannot refile his action. Defendants counter by arguing that the exception to Steenson will apply only if plaintiff can show that recovery through arbitration is impossible. Defendants assert that plaintiff has not Cite as 363 Or 729 (2018) 735 presented sufficient evidence that the ruling compelling arbitration precludes his recovery. To determine the scope of the exception, we first examine Steenson itself and then review our later cases that followed it and applied its rule. The plaintiff in Steenson was an automobile passenger who suffered injuries in a collision. He brought an action against both the driver of the car in which he was riding, Robinson, and the driver of the other car, Prindel. Both defendants raised defenses against the plaintiff’s claims. The plaintiff demurred to both defenses, but the trial court ruled against him. At the close of the plaintiff’s case, the trial court granted Robinson’s motion for an involuntary nonsuit on the ground that the plaintiff had failed to prove the elements of the claim against him. Steenson, 236 Or at 415. The plaintiff did not want to continue the case against Prindel alone, presumably for tactical reasons, so he moved for a voluntary nonsuit against Prindel, which was granted. Id. at 415-16. The plaintiff then appealed both judgments and also filed a new, separate action against Prindel. Id. at 416. Both Robinson and Prindel moved to the dismiss the appeals against them. This court allowed the appeal of the judgment pertaining to Robinson to go forward. Id. However, the court dismissed the appeal with respect to Prindel, invoking “the general rule that a party may not appeal from a judgment which he voluntarily requested.” Id. at 416-17. As noted, the court allowed that the rule might not apply “[i]f the plaintiff takes a nonsuit because of a ruling which precludes recovery” but found that that situation was not presented in the case before it. Id. at 417. The rule announced in Steenson was designed to address a particular abuse of the legal system. Id. at 417 n 1. As Oregon law operated at the time, a plaintiff could end her action with a voluntary nonsuit. Former ORS 18.230 (1963).2 That nonsuit ended the case, but without prejudice. 2 Former ORS 18.230 (1963) provided that: “A judgment of nonsuit may be given against the plaintiff: “(1) On motion of the plaintiff, at any time before the issues have been joined and the trial of the facts has commenced, unless a counterclaim has been pleaded as a defense; but if the issues have been joined and the trial of 736 Gist v. Zoan Management, Inc. Former ORS 18.250 (1963).3 Therefore, the plaintiff could, if she chose, refile the same claim.4 Presently, under the Oregon Rules of Civil Procedure, a plaintiff can still voluntarily dismiss her action without prejudice—the equivalent of a nonsuit—but can also opt to do so with prejudice, as provided by ORCP 54 A(1). The practice that the Steenson court sought to prevent can be summarized as follows: A plaintiff who had obtained an unfavorable ruling on a preliminary issue could move for a nonsuit and appeal the resulting judgment, obtaining review of the ruling. Should the plaintiff win the appeal, her action would be revived with the preliminary issue resolved in her favor. Should the plaintiff lose the appeal, however, she could simply refile her action. Steenson, 236 Or at 417 n 1 (quoting Francisco v. Chicago & A.R. Co., 149 F 354, 359-60 (8th Cir 1906)). Hence the rule announced in Steenson: If a plaintiff sought a voluntary nonsuit, she could not appeal the resulting judgment. The alternative would be “no limit to the number of actions on the same cause, or on the want of it, which the plaintiff may bring, review, and dismiss under it.” Steenson, 236 Or at 417 n 1 (quoting Francisco, 149 F at 359-60). This court has consistently interpreted Steenson in light of that purpose. In Farris v. U. S. Fidelity & Guaranty, 273 Or 628, 542 P2d 1031 (1975), the plaintiffs sought to recover from the defendant, their insurer, expenses that they had incurred in earlier litigation. Id. at 630. The trial court had determined that the conduct at issue in the prior action was not covered by the defendant’s policy, and the plaintiffs had taken a voluntary nonsuit. Id. at 630-34. This court held that judgment that the trial court had entered was appealable because the trial court’s pretrial ruling had already determined the merits of the plaintiff’s complaint. the facts has commenced the allowance of the motion shall be subject to the discretion of the court.” 3 Former ORS 18.250 (1963) stated: “When a judgment of nonsuit is given, the action is dismissed; but such judgment shall not have the effect to bar another action for the same cause.” 4 Nor was that a mere possibility—as noted, in Steenson itself the plaintiff had filed a new action against Prindel while the appeal of his voluntarily nonsuited claim against Prindel was pending. Steenson, 236 Or at 416. Cite as 363 Or 729 (2018) 737 This court noted that “[i]n the present case the plaintiffs had no other alternative but to have the court enter some kind of order ending the lawsuit and appealing from that order.” Id. at 635. In articulating the rationale for distinguishing between voluntary nonsuits where a trial court order precluded recovery (and an appeal was therefore permissible) and voluntary nonsuits where the trial court order, although adverse to the plaintiffs, did not preclude recovery, this court returned to the basis of Steenson: “The rationale for the distinction is that if the plaintiff were permitted to appeal from any voluntary nonsuit, plaintiff could harass the defendant by nonsuits and appeals.” Farris, 273 Or at 633. In Taylor v. Baker, 279 Or 139, 566 P2d 884 (1977), this court again explained the Steenson rule, and the exception thereto, in terms of Steenson’s rationale of preventing repetitive appeals. Taylor involved plaintiffs who had alleged two separate claims based on the same incident, a fall from a second-story window. Taylor, 279 at 141. The defendants moved for partial summary judgment as to the first claim, which was granted. Id. The plaintiffs, determining that they were unlikely to recover on the second claim, sought a nonsuit as to that claim, which was also granted. Id. The plaintiffs then appealed the resulting judgment and sought review of the partial summary judgment as to the first claim. Rather than speculate about whether the plaintiffs had correctly judged the possibility of recovery on the second claim, this court focused its analysis on the fact that plaintiffs had given up the second claim. The court noted that, because the plaintiffs’ two claims arose from the same incident, any attempt to refile the voluntarily dismissed claim would be barred by res judicata. Id. at 143-45. That, the court determined, was enough to “prevent the problems of piecemeal appeal that would argue against allowing such appeal.” Id. at 144. The court did not examine whether the plaintiffs’ conclusion that pursuing the second claim would be futile was correct. Instead, the court held that “[a] plaintiff’s willingness to forego litigation on alternative theories should be sufficient to guarantee that the partial summary 738 Gist v. Zoan Management, Inc. judgment had the effect of rendering plaintiff’s nonsuit truly involuntary.” Id. at 144. This court last considered the application of Steenson in Sheets v. Knight, 308 Or 220, 779 P2d 1000 (1989), abrogated on other grounds by McGanty v. Staudenraus, 321 Or 532, 901 P2d 841 (1995). Sheets involved a plaintiff who brought three claims, all relating to a forced resignation. Id. at 223. The trial court dismissed one of the claims and granted judgment to the defendant on the pleadings with respect to another. Rather than proceed on the remaining claim, the plaintiff moved for and received a voluntary dismissal without prejudice as to that claim. The plaintiff appealed the resulting judgment, but without alleging that his recovery had been precluded by a ruling of the trial court prior to the voluntary dismissal.5 The court considered, in light of that fact, whether the plaintiff’s appeal was barred by Steenson. Sheets, 308 Or at 225. This court held, however, that Taylor permitted the appeal. Sheets, 308 Or at 225-26. Because “[t]he doctrine of res judicata would preclude this plaintiff from relitigating the [voluntarily dismissed] claim in the event of an adverse ruling on the [involuntarily dismissed] claim in this appeal,” the Steenson rule did not apply. Sheets, 308 Or at 226. As in Taylor, the analysis did not turn on whether the plaintiff’s recovery on the voluntarily dismissed claim had been precluded by a prior ruling of the trial court at the time of the dismissal. What mattered was that the plaintiff would be barred from further litigation of the dismissed claim by res judicata if the appeal were unsuccessful. Having examined our cases, we turn to the task of clarifying the exception to the Steenson rule. That exception was initially articulated, very briefly and in a hypothetical statement, as one that would apply “[i]f the plaintiff takes In fact, the plaintiff acknowledged that his recovery was not precluded. Memorandum of Appellant/Petitioner on Review in Response to Supreme Court’s Questions of January 31, 1989 at 6-7, Sheets, 308 Or 220. When moving to voluntarily dismiss the remaining count, the plaintiff’s trial counsel had explained that “to proceed now on the contractual theory and then appeal and have to proceed on the tort theory is prohibitively expensive for my client and that is a major reason for this determination.” Memorandum as to Why There Is No Appellate Jurisdiction at 7, Sheets, 308 Or 220. 5 Cite as 363 Or 729 (2018) 739 a nonsuit because of a ruling which precludes recovery.” Steenson, 236 at 417. That statement, however, was made in a case in which res judicata did not bar the plaintiff from refiling his claim and in the context of statutes that did not provide for voluntary dismissals with prejudice, or the equivalent, in actions at law.6 Read literally, as defendants propose, Steenson’s articulation of the exception would suggest that we should examine the record to discern whether, as a factual matter, plaintiff still had some possibility of recovery on the claims that he moved to dismiss. But that is not how our subsequent cases have applied the exception, and that literal reading cannot be squared with the reasoning in Taylor or the result in Sheets. Nor is defendants’ limited view of the exception necessary to advance the purpose of the Steenson rule. That rule was imposed only to prevent a plaintiff from both obtaining appellate review of a preliminary issue and retaining the ability to refile the same claim, should the plaintiff lose on appeal. A dismissal of all claims with prejudice fully prevents plaintiffs from employing that strategy. For those reasons, we hold that Steenson does not bar appeal when there is a judgment on all claims and any voluntarily dismissed claims were dismissed with prejudice. Applying that rule to these facts is straightforward. This case involves a dismissal with prejudice of all of plaintiff’s claims. Plaintiff cannot refile those claims after this appeal. To the contrary, having voluntarily foregone the possibility of recovery through arbitration, plaintiff’s action is at an end if he does not prevail on appeal. He is in a similar position to the plaintiffs in Taylor, who were willing to At the time, the relevant statutes used different terminology, and slightly different procedures, for actions at law and suits in equity: 6 “Except in instances of dismissal for lack of prosecution, there is no statutory authorization for judgments or orders of dismissal in law actions. The statutory scheme in Deady’s Code and at present indicates that in equity the correct terminology is ‘dismissal’ and in law the correct terminology is ‘nonsuit,’ voluntary and involuntary.” Farris, 273 Or at 631. As discussed above, all judgments of nonsuit were without prejudice. Former ORS 18.250 (1963). In suits in equity, the court could enter a decree of dismissal, also without prejudice, for most of the same reasons as a court could enter a nonsuit in an action at law. Former ORS 18.210 (1963). Only in the case of a dismissal after trial could the dismissal be with prejudice. Former ORS 18.220 (1963). 740 Gist v. Zoan Management, Inc. accept nonsuit of another, related, claim in order to obtain an appeal. In this case, had plaintiff not dismissed his claims with prejudice, he could have pursued them in arbitration. Plaintiff gave that up. Plaintiff’s acceptance of that cost—his “willingness to forego litigation,” Taylor, 279 Or at 144—distinguishes this case from an interlocutory appeal. For that reason, any dispute over whether plaintiff correctly judged that he would be unable to prevail on his claims through arbitration, or would actually have been unable to afford arbitration, is irrelevant. Plaintiff’s appeal falls within the exception because, as in Taylor and Sheets, plaintiff’s only opportunity to obtain relief is on appeal; plaintiff dismissed his claims with prejudice and cannot refile them if he is unsuccessful on appeal. We turn to defendants’ second argument, that ORS 36.730 creates an exception to the general rule of ORS 19.205(1) that a party can appeal a general judgment and prohibits plaintiff from pursuing his appeal. ORS 36.730(1) allows the interlocutory appeal of orders “denying a petition to compel arbitration” or “granting a petition to stay arbitration.” But ORS 36.730(1) contains no provision permitting an interlocutory appeal of an order granting a petition to compel arbitration. Defendants argue that because of that omission, plaintiff’s appeal must be dismissed. We disagree. As we have discussed above, this case does not involve an interlocutory appeal. Instead, the trial court entered a judgment dismissing plaintiff’s action with prejudice and plaintiff appealed that judgment. This appeal is therefore from a general judgment and is statutorily authorized by ORS 19.205(1) and ORS 19.245(1). Nothing in ORS 36.730(1) prevents plaintiff from appealing the final, general judgment in his case. We allowed review to consider only whether plaintiff’s appeal was correctly dismissed, and we have concluded that it was not. The learned Appellate Commissioner pointed out in his order, however, that certain of defendants’ arguments may more appropriately be directed to what issues the Court of Appeals may properly review on appeal rather than the appealability of the judgment. Those arguments, as well as the merits of plaintiff’s assignments of error, are Cite as 363 Or 729 (2018) 741 properly considered in the first instance by the Court of Appeals. The order of the Court of Appeals is reversed, and the case is remanded to the Court of Appeals for further proceedings.

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


text:
Complainant is Amblin' Entertainment, Inc. of California, United States of America, represented by Seyfarth Shaw, United States of America.
Respondents are Domains by Proxy Inc. / Webapalooza / Paul Grim of New York, United States of America.
The disputed domain name <amblin.com> (the “Domain Name”) is registered with GoDaddy.com, Inc.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 9, 2009. On May 11, 2009, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the Domain Name. On May 11, 2009, GoDaddy.com, Inc. transmitted by email to the Center its verification response disclosing that the registrant of the Domain Name and their contact information differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on May 13, 2009 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to amend the Complaint as to the registrant issue as well as a word limit issue. Complainant filed an amended Complaint on May 15, 2009. The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced on May 19, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was June 8, 2009. The Response was filed late with the Center on June 9, 2009 without any reason or request for permission to file late.
The Center appointed Harrie R. Samaras as the sole panelist in this matter on June 17, 2009. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
By an email dated June 17, 2009, Complainant filed a “Request for Permission to File Supplemental Submission” as well as the proposed Supplemental Submission. On June 19, 2009, Respondent filed objections by email to Complainant's Supplemental filing. Neither the Policy nor the Rules, provide for Supplemental Filings by either party except in a few narrow instances not applicable here. The Panel has the sole discretion to determine the admissibility of the Supplemental Filing. The applicable principles for exercising this discretion have been considered in numerous cases decided under the Policy and Rules. See e.g., The E.W. Scripps Company v. Sinologic Industries, WIPO Case No. D2003-0447 (denying a Supplemental Submission because, among other things, it did not sufficiently identify the alleged new facts and misstatements to satisfy the panel that they were indeed new facts or misstatements which required a reply).
Applying these principles to the present case, the Panel notes Complainant's reason for filing the Supplemental Submission: “the specific issues discussed in its supplemental submission are novel and, as such, could not reasonably have been anticipated or addressed by Complainant in its Amended Complaint.” Complainant has not demonstrated to the Panel how this reason comports with the applicable principles for accepting a supplemental filing. Furthermore, it appears to the Panel from reading the Amended Complaint that Complainant fully anticipated Respondent's arguments and sufficiently addressed them. Thus, the Panel has not considered the Supplemental Filing.
Although Respondent has not requested from the Panel any special consideration for filing its Response a day late, the Panel notes correspondence in the record between Respondent and the Center which expressed concerns about meeting the deadline for replying to the Complaint in view of its substantial supporting record. Insofar as the Response was only a day late, the Panel has considered it in rendering its decision.
Steven Spielberg formed Complainant Amblin' Entertainment Inc. in 1980. Complainant produces motion pictures, television programs, and soundtracks, and has used the service marks AMBLIN ENTERTAINMENT and AMBLIN continuously since 1984 in the United States in connection with those entertainment services. The mark AMBLIN was based upon the name of the first of Steven Spielberg's publicly released films, Amblin' (1968).
Complainant has produced numerous critically-acclaimed and commercially-successful motion pictures, including both motion pictures directed by Steven Spielberg and motion pictures directed by others. Complainant's pictures include: E.T. the Extra-Terrestrial (1982); Gremlins (1984); Back to the Future (1985); The Color Purple (1985); An American Tail (1986); Empire of the Sun (1987); The Land Before Time (1988); Who Framed Roger Rabbit (1988); Back to the Future Part II (1989); Back to the Future Part III (1990); Hook (1991); Cape Fear (1991); Jurassic Park (1993); Schindler's List (1993); The Flintstones (1994); Balto (1995); The Bridges of Madison County (1995); Twister (1996); Men in Black (1997); Saving Private Ryan (1998); Small Soldiers (1998); Artificial Intelligence: A.I. (2001); Minority Report (2002); Munich (2005); The Legend of Zorro (2005); War of the Worlds (2005); Letters from Iwo Jima (2006); and Flags of Our Fathers (2006).
Billions of dollars have been spent on the production, advertisement, and promotion of Complainant's films and its films have grossed in excess of USD 3,000,000,000 in the United States. Complainant's AMBLIN ENTERTAINMENT and AMBLIN marks have been displayed in each of Complainant's motion pictures on screen shots. Complainant estimates that its marks have been exposed in this manner to more than one billion viewers of motion pictures since the 1980s.
Complainant's television productions have included: Amazing Stories (1985-1987); Tiny Toon Adventures (1990-1992); Harry and the Hendersons (1991-1993); Back to the Future: The Animated Series (1991-1992); Sea Quest DSV (1993-1996), and ER (1994-2009). Complainant's television programs have generated more than USD 1,000,000,000 in revenue in the United States since the 1980s. Complainant's AMBLIN mark has appeared in the credits for each of its television programs. Complainant estimates that its marks have been exposed in this fashion to more than one billion viewers of television programs since the 1980s.
Complainant owns United States Service Mark Registration No. 2,304,379 for the mark AMBLIN ENTERTAINMENT (“Entertainment” is disclaimed apart from the mark) for entertainment services, namely, production of television shows, motion pictures, and soundtracks. The registration issued in December 1999 on the basis of first use of the mark in commerce in 1984. Complainant's registration of AMBLIN ENTERTAINMENT has become incontestable.
Respondent registered the Domain Name in 1997.
A person who identified himself as “P.G. Thomas” of Van Nuys, California originally registered the Domain Name in 1997. Complainant and Mr. Spielberg learned of the Domain Name in 1998 when Mr. Spielberg received letters from persons who tried to reach him through the Domain Name, as well as a letter from someone who complained about rude emails from a person holding himself out as “ssberg@amblin.com.” Following an investigation, representatives of Complainant and Mr. Spielberg identified the registrant as “Paul Grim,” who was employed at a rival motion picture studio. Complainant and Mr. Spielberg engaged counsel to send a protest letter to the registrant. Registrant responded acknowledging that he had held himself out as a representative of Complainant in responding to numerous emails directed to Mr. Spielberg at the Domain Name. Complainant's counsel also received correspondence from an anonymous third party reflecting email messages that registrant sent, as well as other unsolicited emails indicating that registrant was falsely holding himself out as a representative of Complainant and Mr. Spielberg and asking them for private information.
Following further correspondence, the registrant agreed to transfer the Domain Name to Complainant, but it came to Complainant's attention that the registrant continued to hold himself out as affiliated with Complainant and Mr. Spielberg. The registrant then requested unacceptable changes to a draft settlement agreement and Complainant and the registrant were unable to consummate a settlement. The registrant continued to receive emails directed to Complainant and Mr. Spielberg and to respond to them, including in his responses a set of “FAQ's” and answers stating that he received around 10 messages a day through the Domain Name.
The registrant also posted a website at “www.amblin.com” that linked to another commercial website at “www.groovycafe.com” (also owned by the registrant), which promoted web design services and which used Complainant's marks AMBLIN ENTERTAINMENT and AMBLIN in the site's metatags. Complainant has consistently monitored the Domain Name hoping that it could be obtained consensually or would not be renewed. The Domain Name was apparently then transferred in 2002 or 2003 to an entity called “Webapalooza,” with an address of record in Syracuse, New York. Upon information and belief, the “Webapalooza” entity was an affiliate of the registrant Paul Grim. The Domain Name did not resolve to a functioning website until sometime in 2005, when it began resolving to a page that contained sponsored links to third-party websites. In 2005, Complainant, through a representative, contacted Webapalooza, the then-registrant of record, and offered to buy the disputed domain name for USD 175. Webapalooza responded “$175.00? You must be kidding right?” When Complainant's agent increased the offer to USD 275, Webapalooza responded “Sorry I've turned down much bigger offers. You'd have to add a few zeroes before you'd even be under consideration.” Record ownership of the Domain Name's registration was subsequently transferred to Domains by Proxy, Inc. Complainant's counsel continued to monitor the Domain Name on a regular basis. From November 2005 until late 2008, the Domain Name resolved to pages on GoDaddy.com that stated “This domain is for sale” and provided a variety of sponsored links to third-party websites selling various goods and services.
In late 2008, counsel for Complainant contacted Domains by Proxy, Inc. with a request that it disclose the identity of the actual registrant of the Domain Name. Domains by Proxy, Inc. forwarded Complainant's counsel's letter to the actual registrant. Complainant's counsel received an email response from a “John Doe” who also identified himself as “amblin.com Proxy.” The response concluded with the statement: “as you have already noticed the amblin.com domain name is not currently being utilized by its owner. As such, if you should be interested in purchasing the amblin.com domain name for your client's own commercial development and usage, please let us know. The domain owner has expressed his willingness to transfer the domain name to your client if an equitable price can be agreed upon.” In a subsequent email “John Doe” stated that he was “Just writing to inform you that the domain owner has changed amblin.com to redirect to Wikipedia's entry for Amblin Entertainment, rather than Google's home page. Hopefully this is a more satisfactory interim solution for you, at least until such time that the domain owner has the time and resources to develop the amblin.com domain”.
In response to “John Doe's” solicitation of an offer on behalf of the owner of the Domain Name, Complainant's counsel offered USD 1,500, but this offer was rejected when “John Doe” stated that the Registrant had had a change of heart. When Complainant's counsel responded that “John Doe” had solicited an offer to establish an “equitable price,” “John Doe” responded that: “When I originally stated that the domain owner had expressed his willingness to sell the domain name ambin.com, I was speaking on his behalf in general terms based on past events. The domain owner also owns a number of other domain names, some of which he has been willing to sell over the years. I had mistakenly assumed that this would also be the case with the amblin.com domain name, but as it turns out the domain owner has future development plans for the amblin.com domain name. I apologize for the misunderstanding, and I hope you have not been inconvenienced by it.” The Domain Name continues to resolve to the Wikipedia entry for Complainant (the Panel has found that at times it has resolved to a blank page).
Complainant claims that it has continuous common-law rights in the AMBLIN mark that predate registration of the Domain Name and that its U.S. registration predates ownership of the Domain Name by those who it believes owned the Domain Name registration after the first owner. Complainant also claims that <amblin.com> is confusingly similar to Complainant's AMBLIN ENTERTAINMENT and AMBLIN service marks.
Complainant maintains that it never licensed or authorized Respondent to use the AMBLIN and AMBLIN ENTERTAINMENT marks. The original registrant's use of the Domain Name to hold himself out falsely as an authorized representative of Complainant and its principal Steven Spielberg and to respond to inquiries directed to them was obviously not a bona fide offering of goods or services within the meaning of the Policy, or a legitimate noncommercial or fair use under the Policy. Neither was the use of the Domain Name in connection with a website that promoted web design services, or the parking of the Domain Name on websites that have provided sponsored links to third-party websites. Furthermore, “John Doe's” claim that the Registrant has some vague “future development plans” for the Domain Name does not establish the existence of any demonstrable preparations to use the Domain Name before Complainant's notification to the Registrant of the dispute. Lastly, Respondent has not been known by either the Domain Name or a name corresponding to it.
When Paul Grim originally registered the Domain Name in 1997, the AMBLIN and AMBLIN ENTERTAINMENT marks had been used, advertised, and promoted in the United States by Complainant for well over a decade. Because no other entity has used the AMBLIN mark in the United States in connection with motion picture and television entertainment services and the AMBLIN marks were selected by reference to Steven Spielberg's first publicly-released film, Amblin, the only reasonable inference to be drawn is that the original registrant of the Domain Name had actual notice of the AMBLIN and AMBLIN ENTERTAINMENT marks when registering the Domain Name. The original registrant's bad faith registration and use of the Domain Name is shown by his subsequent use of it to pass himself off as a representative of Complainant and Mr. Spielberg. The original registrant's subsequent use of the Domain Name to divert Internet users seeking information about Complainant to a website on which he offered web design services also establishes bad faith use and registration under the Policy.
Respondent's and its predecessors' bad faith use of the Domain Name is also demonstrated by their respective offers to sell the Domain Name to Complainant or to the general public. Likewise, bad faith use is also demonstrated by the fact that the Domain Name resolved to a GoDaddy parking page containing sponsored links for a period of three years and Respondent used a privacy service to cover up his identity and refused to identify itself in correspondence with Complainant's counsel.
The passage of time between the original registration of the Domain Name and the filing of this action is not relevant under the Policy. Even if the equitable doctrine of laches applied, neither Respondent, nor the Registrant or any of its predecessor(s)-in-interest, could show that they were prejudiced in any manner by the passage of time prior to the filing of this complaint because none of them acted in reliance by investing in and developing a functioning website, or in any other manner.
Paul Grim admits that he is the first, original, and only owner of the Domain Name since he first registered it in 1997 (henceforth, references in the Decision to “Respondent” will mean Paul Grim). He claims to have never sold, traded, bartered, rented, or gifted the Domain Name to anyone. Mr. Grim also claims that he transferred the Domain Name between several registrars over the years, including a consolidation of several domain names owned by the Respondent under the “Webapalooza” moniker.
Complainant's mark is AMBLIN ENTERTAINMENT, not Amblin. The Domain Name is <amblin.com> not <amblinentertainment.com>, therefore it does not contain the Complainant's mark in its entirety. The Domain Name is not identical to Complainant's mark, and although it may be “similar”, it is not confusingly similar.
Complainant's trademark is dated two years, three months, and 13 days after Respondent registered the Domain Name. It is also one year, one month, and 15 days after Complainant's initial cease and desist letter. If Complainant was truly concerned about establishing and protecting their trademark, why did they delay so long in registering it with the U.S. Trademark office? Mr. Grim claims he has not created a likelihood of confusion with the Complainant's mark, because Complainant has never had any established web presence using their mark, so Internauts could not possibly have been misdirected away from something that does not exist. Also, Respondent has never posted a web page at the disputed domain, so a “likelihood of confusion” could not have arisen out of something that does not exist. In this regard, Respondent notes that the earliest domain name containing “amblin” was registered late in 2001 - over four years after Respondent registered <amblin.com>, and two years after Complainant trademarked AMBLIN' ENTERTAINMENT.
With regard to Mr. Grim's responding to third-party emails intended for Complainant or Steven Spielberg, Mr. Grim asserts that he has never claimed to be employed by, affiliated with, or an agent or representative of, the Complainant, nor of Mr. Spielberg, nor has he ever held himself out as “ssberg@amblin.com”, nor has he ever acknowledged anything similar. Mr. Grim admits that he has represented himself as the administrator of <amblin.com>. He claims that he never solicited emails or inquiries at the Domain Name, but admits he replied to inquiries that he could adequately and honestly answer, and always in a polite and professional manner. By and large, these were simply innocent correspondences between movie buffs. Furthermore, Mr. Grim claims that he has never made it publicly known that he owns the disputed domain name, or that he at one time received emails sent to it. According to Complainant's own documents, the email address “ssberg@amblin.com” was mistakenly printed by The Sun newspaper in England as part of the launch of their web site.
Mr. Grim claims that he was offering a “bona fide service” when responding to emails that were intended for Mr. Spielberg. He maintains that he has never created, maintained, or owned a “commercial” web site, for anyone, at any time including providing web site design services for anyone. Mr. Grim states he never linked the Domain Name to “www.groovycafe.com”, but admits he only briefly used it as a “practice” web site to learn how to create basic web pages while taking a series of online HTML certification courses offered through Santa Monica Community College during 1998-1999.
Mr. Grim alleges that he has a legitimate interest in the Domain Name by the fact that he is a Film School graduate with a Bachelor's degree in Cinema and Photography. He also enrolled in screenwriting classes at UCLA over a course of 5 years. Mr. Grim worked for MGM Studios for 9 years, and is an award-winning screenwriter in his own right. Finally, Mr. Grim claims he has almost completed his Masters Degree in Information Technology, which he undertook so that he could create a professional-looking fan web site for the Domain Name. Mr. Grim asserts that he only registered the Domain Name after news that the founder of Amblin' Entertainment had formed a new company, DreamWorks. He made repeated attempts to visit “www.amblin.com”, but was unable to find a web site for Complainant. According to Mr. Grim, because he was inspired to attend film school in no small part due to the influence of Complainant's films, he decided to register the Domain Name and one day build it into a web site where fans could learn about the history of Amblin' Entertainment and discuss films with other like-minded fans.
Mr. Grim claims that he never profited from the Domain Name and has in fact suffered significant losses (both financial and personal) as a direct result of owning it. He never requested that a statement reading: “This domain is for sale!” be placed on the disputed domain's parking page. This was an action taken by the registrar (GoDaddy) without Mr. Grim's knowledge or consent. Mr. Grim transferred the Domain Name to GoDaddy due to service difficulties with the previous registrar. He believes GoDaddy is responsible for the ads on the parked domain pages and that the ads are standard practice presumably as a means to defray the registrar's costs. Mr. Grim claims that he cannot be deemed to have acted in bad faith, as he was unaware that the registrar had placed these ads on the Domain Name's parking page, nor were the ads placed with his consent, nor did he ever “benefit from click-through compensation.” Mr. Grim alleges that he has not invested hundreds of dollars and dozens of hours renewing and protecting the Domain Name registration for 12 years, plus over USD 35,000 and seven years in mastering web site programming, to then turn around and sell the Domain Name to a complete stranger over the Internet who sends him an anonymous email. Mr. Grim further states that since a sale of the Domain Name was not the primary purpose of its registration, and since it has also never been offered for sale to any of Complainant's competitors, Complainant's argument fails on both accounts.
With regard to parking the Domain Name or pointing it to the Wikipedia description of Amblin' Entertainment, Mr. Grim points out that Complainant has failed to develop any web site of its own at any of the eight domain names which incorporate the Complainant's trademark of 1999. He claims that he cannot possibly be diverting Internet traffic away from Complainant, because Complainant has no established Internet presence so there is no Internet traffic to divert. Mr. Grim believes he is performing a bona fide service for Complainant by directing visitors to Complainant's Wikipedia entry until he can build a fan web site. Search engines consistently turn up the Wikipedia entry for Complainant within the top two results. So by directing Internauts to the Wikipedia entry for Complainant, Mr. Grim believes he has in fact satisfied their “reasonable expectations”.
With regard to why Mr. Grim used a privacy service, he maintains that as the rightful owner of the Domain Name for nearly 12 years, he is under no obligation to identify himself to someone alleging in an email that they are Complainant's counsel, any more than he is obligated to identify himself to any other stranger who sends him unsolicited email correspondence. Mr. Grim also maintains he is under no obligation to provide Complainant with the details of, or timeline for, his future development plans for the Domain Name. Mr. Grim claims he used a privacy service to protect himself and his family.
Mr. Grim claims he has never initiated contact with the Complainant in an attempt to sell the Domain Name. If Complainant was truly interested in obtaining the Domain Name “consensually”, why did they not make a bona fide offer in 2003 to the entity that they (mistakenly) believed was a new registrant? Their failure to do so, and instead silently “monitor[ing]” of the use demonstrates that they not only have no bona fide interest in the Domain Name, but also that they have abdicated protection of their trademark during the intervening 10 years. This strongly indicates their acquiescence towards the Respondent's use of it. Meanwhile, Mr. Grim claims to have invested over USD 35,000 and seven years of his life in graduate school to earn a Masters degree in Information Technology with a focus on Web Site Technologies. This was done in order to learn how to professionally design and program web sites so that he could one day build a respectable fan web site for “www.amblin.com”. Thus, the doctrines of laches and/or estoppel must be invoked.
Complainant is relying on both its common law rights in the AMBLIN and AMBLIN ENTERTAINMENT marks as well as a registration for the mark AMBLIN ENTERTAINMENT that the U.S. Patent and Trademark Office issued. As previous panels have held, under United States law, an unregistered trademark that is used in commerce may be treated as a trademark for the purposes of paragraph 4(a)(i) of the Policy if Complainant can show that the mark is inherently distinctive or at least has acquired secondary meaning and thus has become a distinctive identifier associated with Complainant or its goods and services. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions (“WIPO Overview”), paragraph 1.7; see also Theodore Presser Ca, v, John Smith/Whois Protection, WIPO Case No. D2008-0549. Relevant evidence of such secondary meaning includes “length and amount of sales under the mark, the nature and extent of advertising, consumer surveys and media recognition”. Id. By virtue of the evidence Complainant has made of record here (declarations and supporting documents), without any countervailing evidence, the Panel finds that Complainant has demonstrated acquired distinctiveness sufficient to establish common law trademark rights in the AMBLIN and AMBLIN ENTERTAINMENT marks well before Respondent registered the Domain Name in 1997.
It is uncontested that at the time Respondent registered the Domain Name, Complainant had used, advertised and promoted extensively the AMBLIN and AMBLIN ENTERTAINMENT marks in the United States for well over a decade in connection with numerous well-known films that have grossed to date more than USD 3,000,000,000 (e.g., E. T. the Extra-Terrestrial (1982); Gremlins (1984); Back to the Future (1985); The Color Purple (1985); An American Tail (1986); Empire of the Sun (1987); The Land Before Time (1988); Who Framed Roger Rabbit (1988); Back to the Future Part II (1989); Back to the Future Part III (1990); Hook (1991); Cape Fear (1991); Jurassic Park (1993); Schindler's List (1993); The Flintstones (1994); The Bridges of Madison County (1995); Twister (1996); Men in Black (1997). It is also uncontested that Complainant had produced the following television programs/series under the AMBLIN mark before Respondent registered the Domain Name: Amazing Stories (1985-1987); Tiny Toon Adventures (1990-1992); Harry and the Hendersons (1991-1993); Back to the Future: The Animated Series (1991-1992); Sea Quest DSV (1993-1996), and ER (1994-2009). Indeed, Respondent states he was aware of Complainant, Amblin' Entertainment, when registering the Domain Name.
Furthermore, Complainant's registration of the AMBLIN ENTERTAINMENT mark with the United States Patent and Trademark Office in 1999 based on use in commerce since 1984 is sufficient evidence of Complainant's rights in the mark for purposes of the Policy even though the registration issued after the Domain Name was first registered. See Madrid 2012, S.A. v. Scott MartinMadridMan Websites, WIPO Case No. D2003-0598 (registration of complainant's mark after date of registration of disputed domain name “sufficient for purposes of the Policy, paragraph 4(a)(i)”); AB Svenska Spel v. Zacharov, WIPO Case No. D2003-0527 (“Paragraph 4(a) (i) of the Policy does not require that the trademark be registered prior to the domain name.”). Complainant's registration is entitled to a presumption of validity, which Respondent has not rebutted. Spencer Douglass, MGA v. Bail Yes Bonding, WIPO Case No. D2004-0261.
Respondent argues that because Complainant's U.S. registration is for AMBLIN ENTERTAINMENT instead of just AMBLIN (as in the Domain Name <amblin.com>), the Domain Name does not contain the mark in its entirety and so it is not identical, nor is it confusingly similar (although Respondent acknowledges it may be similar). This argument misconstrues the Policy and ignores important facts in this case. The Panel has determined based on uncontroverted evidence that Complainant has established common law rights in the mark AMBLIN that predate registration of the Domain Name. Insofar as the Domain Name <amblin.com> uses Complainant's AMBLIN mark (in which Complainant has established common law rights) in its entirety it is identical to the AMBLIN mark. Moreover, because the Domain Name uses the dominant, source-identifying portion (AMBLIN) of the registered mark AMBLIN ENTERTAINMENT in its entirety, it is confusingly similar to Complainant's registered mark. Barry D. Sears, Ph.D. v. Texas International Property Associates, WIPO Case No. D2007-0284 (“It is well settled that a domain name is confusingly similar for purposes of the first factor of the Policy if it incorporates complainant's mark in its entirety or incorporates the dominant portion of complainant's trademarks.”).
Respondent also argues that there can be no confusion because Complainant has never established a web presence with the AMBLIN/AMBLIN ENTERTAINMENT marks. The test for whether confusingly similarity exists under the Policy does not rely on whether Complainant is using its mark in conjunction with its own website. Complainant has satisfied its burden under the Policy as discussed above.
It is uncontested that Complainant has not licensed or otherwise authorized Respondent to use its AMBLIN or AMBLIN ENTERTAINMENT marks for any purpose. Insofar as Complainant has made a prima facie showing that Respondent lacks rights or legitimate interests to the Domain Name (Spencer Douglass, MGA v. Bail Yes Bonding, WIPO Case No. D2004-0261), this shifts the burden to Respondent to show by concrete evidence that it has rights or legitimate interests in the Domain Name. See, e.g., Document Technologies, Inc. v. International Electronic Communications Inc., WIPO Case No. D2000-0270. Pursuant to paragraph 4(c) of the Policy, Respondent may satisfy his burden by demonstrating any of the following: (i) before any notice of the dispute, Respondent's use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or (ii) Respondent (as an individual, business, or other organization) has been commonly known by the domain name, even if it has acquired no trademark or service mark rights; or (iii) Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
Respondent does not claim that he is commonly known by the Domain Name, so paragraph 4(c)(ii) of the Policy is not relevant here. Respondent claims to have a legitimate interest in the Domain Name based on his film and information technology education and future plans to use the Domain Name. That is, Respondent claims he was inspired to attend film school due to the influence of Complainant's/ Mr. Spielberg's films and he decided to register the Domain Name so he could one day build a web site where fans could learn about the history of Amblin' Entertainment and discuss films with other like-minded fans. Attending school to obtain a degree in information technology was also part of this plan so he could build the website. Respondent further claims that he thought he could use the Domain Name as his own because he could not find the Domain Name registered to Complainant and he assumed Complainant/Mr. Spielberg abandoned the AMBLIN mark after forming DreamWorks.
It is clear from the evidence Complainant has made of record that it did not abandon the AMBLIN/AMBLIN ENTERTAINMENT marks after DreamWorks was formed. It appears that Respondent mistakenly assumed this because Complainant did not use AMBLIN in a domain name. Regardless of whether Complainant was ever going to register a domain name using its AMBLIN mark, Respondent's adoption and use of the AMBLIN mark in the Domain Name without Complainant's authorization is not a legitimate use under the Policy. Furthermore, Respondent's future plans for the Domain Name do not constitute the requisite concrete evidentiary showing that before any notice of the dispute, Respondent had already used or could demonstrate the preparations to use the Domain Name in connection with a bona fide offering of goods or services. See, e.g., T-Online.at Internet Services GmbfJ v. Kiss, WIPO Case No. D2008-1599.
Respondent also claims that he was offering Complainant and Mr. Spielberg a bona fide service when responding to emails that came to him as a result of the Domain Name but were intended for Mr. Spielberg. As already mentioned above, an infringing use of Complainant's AMBLIN mark is not a bona fide use under the Policy.
When Respondent registered the Domain Name in 1997 Complainant had used, advertised and promoted the AMBLIN and AMBLIN ENTERTAINMENT marks in the United States for well over a decade. It would be a logical inference for the Panel to draw that because Respondent admits to being in the same business as Complainant, he would have known about Complainant and the AMBLIN/AMBLIN ENTERTAINMENT marks before registering the Domain Name. The Panel need not draw any inferences, however, because Respondent admits that he knew about Mr. Spielberg and his accomplishments (motivators to Respondent in his own motion picture career) and the AMBLIN mark. Indeed Respondent believed that he could adopt the AMBLIN mark as his own in a Domain Name simply because Complainant had not registered a domain name using the AMBLIN mark. Thus, the Panel concludes that insofar as Respondent clearly had knowledge of the AMBLIN marks before registering the Domain Name, the registration was in bad faith.
This dispute between the parties has been ongoing for many years so Complainant has raised many issues regarding Respondent's bad faith use of the Domain Name and Respondent has replied to them all in kind. The Panel has focused its decision on a few select issues.
Complainant supplied the Panel with considerable correspondence that makes clear the public intended to correspond directly with Mr. Spielberg on personal and professional matters (emails/letters were addressed to Mr. Spielberg) and people thought they had reached him by virtue of the Domain Name (<amblin.com>) and an associated email address (admin@amblin.com). Furthermore, Respondent held himself out in a manner that reinforced the public's belief that they had reached Mr. Spielberg, or someone associated with him. For example, Respondent referred to himself as the administrator of the website bearing Mr. Spielberg's AMBLIN mark; Respondent promised to pass emails on to Mr. Spielberg; and Respondent related information about Mr. Spielberg, his companies and the internal operations of the companies to the public in a believable manner (Respondent generated FAQs) even though Respondent was not authorized by Complainant or Mr. Spielberg to perform any of the functions Respondent believes he should receive credit for. With full knowledge that the public thought they were contacting Mr. Spielberg personally for reliable information, guidance, mentoring and even work, Respondent communicated with these individuals including responding to their questions, requesting additional personal information and providing guidance and advice, knowing he was not the intended recipient of their communications. It was clear that the public associated AMBLIN with Complainant and Mr. Spielberg and Respondent was taking knowing advantage of the confusion. Counsel for Complainants and Mr. Spielberg communicated with Respondent about his activities and Respondent continued them. For all of the above reasons, the Panel finds Respondent was using the Domain Name in bad faith.
In this case, Respondent's use of a privacy shield is, under the circumstances, further evidence of bad faith, and permits the Panel to draw adverse inferences regarding Respondent's conduct and intent, because, among other things, the privacy shield prevents Complainant from determining the recent history of the ownership and possible transfer of the Domain Name. Ustream.TV, Inc v. VerticalAxis, Inc., WIPO Case No. D2008-0598; The Saul Zaenlz Co. cUb/a Tolkein Enterprises v. Euro box Ltd./“The Saul Zaentz Company,” WIPO Case No. D2008-0156.
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 <amblin.com> be transferred to Complainant.

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


text:
Partnering with you to reach an optimal outcome.
We understand the dynamics of your ownership dispute because we've represented hundreds of owners or corporations in a similar position.
A business cannot succeed without good working relationship between its partners or shareholders. When a dispute between the owners arises, it is of the utmost importance that the dispute reaches a quick and appropriate resolution that also meets individual and business goals.
At Anthony Ostlund, our Minnesota lawyers focus on representing partners, owners, members and shareholders in closely-held or family-owned businesses. We represent Minnesota individuals and businesses in this area, as well as individuals and businesses located across the United States. We have helped develop the law in this area and have a deep understanding of the legal implications of these kinds of corporate divorces.
Ownership disputes are personal to you, the owners. We take them personally too. We consider the big picture, and ensure our recommended legal strategies match the long-term strategies of the business. Our lawyers are steeped in the relevant law, yet nimble enough to provide creative solutions. We recognize and appreciate that our clients are looking for more than a resolution — they want to minimize the collateral damage.
Turn to our experienced trial attorneys today for the business-minded strategy and legal representation you require when facing a shareholder or partnership dispute involving corporate mismanagement, business succession, corporate dissolution, corporate deadlock, breaches of fiduciary duty, or corporate waste of assets.
For each family-business matter we handle, we marshal our experience and expertise, focus on the well-being of the family-owned business as a whole, and work hard to find a resolution that addresses both the existing legal issues and our client's long-term business goals. We understand that resources are limited and that litigation is not always the best approach. We also employ negotiation and other alternative dispute resolution processes where appropriate, to execute the best strategy focused on the client's business needs.
If you are facing a family-business dispute, partnership dispute, business divorce or corporate succession issue, let our Minneapolis law firm give you the support and guidance you deserve.
Obtained dismissal, before any discovery, of claims brought after a merger by a former shareholder against the stockholders' representative for breach of contract, breach of fiduciary duty, and unjust enrichment related to an option contract on the shares of the merged company.
Represented the prevailing party in the Minnesota Supreme Court of Wessin v. Archives, 581 NW2d 380, (1998) which set the standard for distinguishing direct and derivative claims by shareholders.
Successfully negotiated a business break-up among two business owners of a closely-held Minnesota orthotics and prosthetics business after one day of trial in Minnesota state court.
Our lawyers have helped shape the law in this area, representing clients in the following reported cases: U.S. Bank N.A. v. Cold Spring Granite Co., 802 N.W.2d 363 (Minn. 2011); Bolander v. Bolander, 703 N.W.2d 529 (Minn. Ct. App. 2005); Powell v. Anderson Corp., 660 N.W.2d 107 (Minn. 2003); Haley v. Forcelle, 669 N.W.2d 48 (Minn. Ct. App. 2003); Gunderson v. Alliance of Computer Professionals, Inc., 628 N.W.2d 173 (Minn. Ct. App. 2001); Wessin v. Archives, 592 N.W.2d 460 (Minn. 1999); Foy v. Klapmeier, 992 F. 2d 774 (8th Cir. 1999); Miller Waste Mills Inc. v. Mackay, 520 N.W.2d 490 (Minn. Ct. App. 1994).
Whether it be leading principles of business deadlock, the rules governing shareholder derivative suits in private companies, the rights of minority shareholders and of the company, our lawyers have been leaders in this area of the law for the past several decades in Minnesota and a variety of other states.

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


text:
1901-1905 Thick paper Lakatoi set to 1/- value with Horizontal Wmk MLH. Odd small fault. Sg 1-7. Retail $265.00.
1901-1905 Thick paper Lakatoi set to 1/- value with Vertical Wmk MLH. ½d value has tone spot on one perf. Sg 9-15. Retail $295.00.
1901-1905 2/6 Black and Brown Thick paper Lakatoi with Horizontal Wmk FU with faults. Scarce. Sg 8. Catalogue Value $1,050.00.
1906-1907 2/6 Thick paper Large Papua O/P Lakatoi with Horizontal Wmk MH. Sg 20. Retail $275.00.
1906-1907 2/6 Thick paper Large Papua O/P Lakatoi with Horizontal Wmk VFU. Sg 20. Retail $325.00.
1906-1907 1/- Black and Orange Thick paper Small Papua O/P Lakatoi with Horizontal Wmk MLH. Tone spot on gum of one perf. Sg 36. Retail $375.00.
1906-1907 ½d Black and Yellow-Green Thin paper Small Papua O/P Lakatoi with Vertical Wmk in block of 4 from sheet positions 16-17 and 21-22, with overprint varieties "inverted d" on 2 units and "dropped pua on one unit ". Minor faults. Sg 38.
1909-10 Small Papua Perf 11 sideways Wmk set including both shades of the ½d value. Few values with some short perfs. Sg 59-65. Retail $365.00.
1910-1911 2d Black and Purple perf 12½ Large Papua Lakatoi with variety "Pcstage" FU. Sg 77a. Catalogue Value $137.00.
1916-19 6d Dull and Pale Purple Bi-Colour Lakatoi in MLH pair with variety "Postace at left". Sg 101c. Catalogue Value $147.00.
1916-31 Bi-Colour Lakatoi set MLH including all standard listed shade variations. Odd low value with small fault. Sg 93-105. Catalogue Value $746.00.
1932 ½d Black and Buff McCracken Print Pictorial MLH single and MUH block of 4, 1d Pictorial McCracken MLH/MUH imprint block of 12, creased through 2 imprint units and 2d and 4d Pictorials MUH, removed from McCracken imprint sheets. Odd minor blemish on the blocks.
1932 Pictorial Definitive set to 10/- value mixed MVLH and MUH. 4d and 1/3 values hinged. Sg 130-144. Catalogue Value $420.00.
1932 Pictorial Definitive set MLH. Some lower values have faults, but all values above 1/- are fine fault free copies, the 2/- and £1 being MUH marginal copies. Sg 130-145. Catalogue Value $841.00.
1932 £1 Black and Olive-Grey Delta House MUH and reasonably well centered. Sg 145.
Collection of mint and used stamps from 1901 to 1938 on album leaves with many useful and better items, values to 10/-, various shades and printings, the odd block and some varieties. Odd fault, but generally in fine condition. Well worth inspecting. Catalogue Value $8,985.00.
Collection of 291 mint and used stamps from 1901 to 1939 including numerous useful and highly catalogued items with a few duplicates on Hagner sheets. Condition varies from poor to fine. Well worth inspecting. Catalogue Value $5,265.00.
1915 1d Carmine Red Die II KGV in mint A,B,C strip of 3, lightly hinged on the top unit, the lower 2 units creased. Sg 67c. Catalogue Value $631.00.
1915 5/- Grey and Yellow 2nd Wmk Kangaroo Type A, B and C strip of 3 lightly hinged on upper and lower units and centre unit MUH. Sg 92.
1916 2/- Brown 3rd Wmk Kangaroo Type A with Inverted Wmk and few blunt perfs at top and 1919 5/- Grey and Yellow 3rd Wmk Kangaroo with "P" of "Pacific" over space between "I" and "S" MLH with faint tone spots. Sg 97w and 116. Catalogue Value $190.00.
1916 £1 Chocolate and Dull Blue 3rd Wmk Kangaroo Type A in fine MLH condition. Centered to right. Sg 99. Retail $525.00.
1916 £1 Brown and Blue 3rd Wmk Kangaroo Type A in fine well centered condition without gum. Attractive. Sg 99. Catalogue Value $525.00.
1916 £1 Chocolate and Dull Blue 3rd Wmk Kangaroo Type A FU with bent corner perf. Neat Rabaul CDS postmark. Most attractive. Sg 99. Retail $675.00.
1916 £1 Chocolate and Dull Blue 3rd Wmk Kangaroo Type B in fine reasonably centered MVLH condition. Sg 99. Retail $525.00++.
1916 £1 Chocolate and Dull Blue 3rd Wmk Kangaroo Type C in fine MLH condition. Centered to lower left. Sg 99. Retail $525.00.
1918 1d on 5d Brown KGV Type A FU and centered to upper right. Sg 100. Retail $175.00.
1918 1d on 5d Brown KGV Surcharge in A,B,C strip of 3 VFU. Sg 100. Retail $700.00+.
1918 1d on 1/- Green Kangaroo Type C FU. Sg 101. Retail $225.00.
1918 1d on 1/- Green Kangaroo Surcharge in A,B,C strip of 3 CTO with gum. Sg 101. Retail $900.00+.
1918-23 1d Carmine-Red KGV with P over IS O/P in MUH horizontal strip of 6, 2 central units being Die II. Sg 103 and 103b. Retail for MLH $370.00.
1919 1d Rosine Die I Rough paper KGV with P over IS O/P perf OS FU, with 1958 BPA certificate stating, "genuine, but cancelled par complaisance in 1928". Sg O16. Retail $375.00.
1914 8d GRI 6mm O/P on 80pf Black and Carmine on Rose Yacht issue of German New Guinea mint with small tear. Setting 5, Position 8. Sg 11. Catalogue Value $1,470.00.
1925 Huts set MLH with odd small blemish. Sg 125-136. Catalogue Value $865.00.
1925 Huts set MUH with odd small blemish. 3d and £1 values are MLH. Sg 125-136. Catalogue Value $865.00.
1931 Huts set O/P Air Mail MLH. Sg 137-149.
1931 Huts set O/P Air Mail MLH. 6d and 9d values have minor faults. Sg 137-149. Retail $425.00.
1931 Huts set O/P Air Mail in fine MLH condition. 10/- and £1 values are MUH, the £1 with light bend on corner perf. Sg 137-149. Retail $425.00++.
1931 Dated Birds set to 10/- value MLH. 1d value has small crease. Sg 150-161. Catalogue Value $403.00.
1931 Dated Birds set MLH. 10/- value is MUH. 1d, 5d, 9d and £1 values with minor faults. Sg 150-162. Catalogue Value $735.00.
1931 Dated Birds set fine used. Odd minor blemish on lower values. Sg 150-162. Catalogue Value $1,050.00.
1931 Dated Birds set O/P Air Mail MLH. £1 value has a few shortish perfs. Sg 163-176. Retail $400.00.
1931 Dated Birds set O/P Air Mail MLH. Sg 163-176.
1932-34 Undated Birds set MLH. £1 has minor perf faults. Sg 177-189. Retail $325.00.
1932-34 Undated Birds set MLH, a few values MUH. Sg 177-189. Retail $325.00.
1932 £1 Undated Bird O/P Air Mail MLH and well centered. Sg 203.
1932-34 Undated Birds set O/P Air Mail mint hinged. 2/- with light crease. Sg 190-203.
1932-34 Undated Birds set O/P Air Mail MLH. 3d value has tiny thin. Sg 190-203. Retail $325.00.
1932-34 Undated Birds set O/P Air Mail FU. Odd blemish on a few low values. Sg 190-203. Catalogue Value $578.00.
1935 £2 Bright Violet Bulolo Air Mail VFU. Sg 204. Retail $175.00.
1935 £2 Bright Violet Bulolo Air Mail very fine used with a few short perfs. Sg 204. Catalogue Value $273.00.
1935 £5 Emerald-Green Bulolo Air Mail MLH and reasonably centered. Sg 205.
1935 £5 Emerald-Green Bulolo Air Mail FU with light toning on reverse. Sg 205. Catalogue Value $841.00.
1935 £5 Emerald-Green Bulolo Air Mail fine used and centered to right with small faint crease. Sg 205. Catalogue Value $841.00.
1937 5d Green Coronation complete Plate 2a sheet of 30 with major Re-entry "design completely duplicated", as well as a single used example of the same variety. Sg 210a. Catalogue Value $315.00.
1939 Bulolo Air Mail set MLH. 10/- value is MUH corner copy, but creased, odd minor fault on some other lower values. Sg 212-225. Catalogue Value $1,576.00.
1939 Bulolo Air Mail set MLH. A fine and attractive set. Sg 212-225. Catalogue Value $1,576.00.
1932-34 Undated Birds O/P OS set MLH. Sg O42-O54. Catalogue Value $471.00.
1925 Huts set O/P OS FU. 2d and 3d values with small faults. Sg O22-O30. Retail $225.00.
Collection of 166 mint and used stamps from 1925 to 1939 with the odd duplicate and numerous useful items. Few faults. Noted 1932 £1 Grey undated Bird O/P Air Mail FU with a few short perfs and 1935 £2 Violet Air Mail FU with repaired tear. Catalogue Value $2,530.00.
Comprehensive collection of mint and used stamps including some German New Guinea and Marshall Islands issues on album leaves with many useful and better items, a wide range of higher values and many N.W.P.I. issues represented with a, b and c types. Odd fault, but generally in fine condition. Inspection will reward. Catalogue Value $14,672.00.
Collection of mint and used stamps commencing with German New Guinea 1897-99 O/P set MLH, a small selection of N.W.P.I to 2/- value, a good range of New Guinea with values to £1, numerous Papua with better items including a few varieties and a collection of Papua New Guinea mint and used from 1952 to 1987 in Hagner Album. Very high catalogue value. Well worth inspecting.
Complete MUH collection from 1952-58 Definitive set to 1983 World Communications Year set in Seven Seas Hingeless album. 1958 1/7 Cattle MLH and 1963 10/- Rabaul fine used.
Largely complete MLH collection from 1952-58 Definitive set to 1986 Dancers set in Seven Seas album. Includes 1960 Postal Charges set of 5 and all issues from 1979 onwards MUH. Excludes few lesser items only.
Complete MUH collection from 1952-58 Definitive set to 1980 Mammals set in loose leaf album.
1952 6½d Dull Purple Hut sheet of 36 with imprint MUH and well centered. (2 sheets). Few minor bends.
1952 10/- Map and £1 Fisherman O/P Specimen MLH. Retail $80.00.
1952 10/- Map and £1 Fisherman O/P Specimen, 1963 10/- Rabaul with 13½mm Specimen O/P, 1963 £1 QEII with 15½mm Specimen O/P and 1964 10/- Bird O/P Specimen MUH. Retail $395.00.
Collection of MUH, MLH and FU stamps from 1952 to 1979 including many sets, plus small range of NWPI, New Guinea and Papua issues on album pages. Noted 1952 10/- Map and £1 Fisherman (2) MLH, 1958 1/7 Cattle MUH and FU, 1961 Legislative Council set MUH and 1963 10/- Rabaul, £1 QEII and 1964 10/- Bird O/P Specimen MLH. Odd minor fault. Also selection of 56 First Day and souvenir covers from 1971 to 1977.
1962 5/- Unissued Patrolman MUH. Rejected design by the Australian Note Printing Branch. Rare.
1960 3d on ½d Emerald Postal Charges with forged "Surcharge Double" MUH. Ceremuga and R.S.V.P. certificates stating the overprint is forged. Sg D3a.
1960 Philatelic cover franked with 2d, tied by Port Moresby CDS with T" postal marking with manuscript "6d", and 6d on 7½d Blue Postal Charges (Sg D1) tied by Konedobu CDS. Ceremuga certificate states genuine in all respects. Very fine condition.
Accumulation of MUH Decimal issues from 1973 to 1998 including numerous sets, presentation packs and many duplicates. Face Value K1,121.00.

matches:
in fine
in fine
in fine
in fine
in fine
in fine
in fine


text:
No provision, it will be observed, was made for the case of the vessel's having left Melbourne unengaged, or, indeed, for anything but for her arriving at Melbourne, and her engagement before receiving the instructions promised by Bangs & Son, to be sent. The vessel reached Melbourne on the 7th of August; she discharged her cargo, and was ready to sail on the 7th of September. She waited for the mail until the 16th of that month. It was due there on the 5th of September, but by an accident did not arrive until the 14th of October. The voyage from Melbourne to Calcutta, at that time of the year, usually consumed from forty-five to sixty-days. Had the vessel proceeded to Calcutta direct, she ought to have reached there before the middle of November. She went, however, to Manilla, much out of the direct course from Melbourne to Calcutta, and arrived there on the 16th of November. She left Manilla on the 24th of January, and arrived at Calcutta on the 26th of February, more than three months after the time at which she ought to have arrived, if she had gone there directly from Melbourne. The owners addressed to the master five letters, of different dates, advising him of the charter-party, and directed them to Melbourne. The charterers, on the 23d of June, despatched an agent to Calcutta, who arrived there on the 25th of August. As soon as he learned that the vessel had not come direct from Melbourne, he declined loading her under the charter-party. Freights, it may be added, had largely fallen between the date when the charter-party was made, and that of the vessel's arrival at Calcutta; and, also, that after the arrival of the Mary Bangs, and after she was ready and had offered to receive a cargo, the charterers engaged another vessel, of about the same tonnage, to take her place, and loaded her with a cargo purchased after the arrival of the Mary Bangs, with funds provided for her. The case thus showed that the object of the voyage had not been frustrated.
On error from the Massachusetts Circuit, where the case had come before the court as a case stated, the question presented for the determination of this court was, whether the fact that the ship proceeded from Melbourne to Manilla and thence to Calcutta, instead of going to Calcutta from Melbourne directly, gave the charterers a right to avoid the charter-party; in other words, whether the clause, 'ship to proceed from Melbourne to Calcutta with all possible despatch,' did or did not make a condition precedent; whether, in short, it constituted a warranty, or merely a representation? The court below considered that it was not a condition precedent, but an independent stipulation, which gave the charterers a claim for damages on failure of performance by the owners, but did not give them the right to avoid the contract; the object of the voyage not having been wholly frustrated. Judgment was given below accordingly.
Mr. Curtis, for the owners.
1. The meaning of the clause is, that the owners would have the vessel at Calcutta 'seasonably.' She was so there, as is proved by the charterers having got another vessel after the arrival and loaded her. The voyage was not frustrated, nor was even inconvenience felt. The charterers threw up their charter only because freights had greatly fallen, and it was for their interest to do so. The argument which gives to the expression in question its severest meaning is unreasonable. If the master, after receiving his instructions at Melbourne, had stopped unnecessarily for but an hour, had gone to see a friend, had sailed by any but the shortest possible line, had not kept under the utmost press of sail, the charter would be void. The ship would not have proceeded from Melbourne to Calcutta with 'all possible despatch.' The argument makes the obligation to sail dependent, not on the receipt of the instructions, but on her actual ability, at the moment, to sail. Who, on this construction of the instrument, could settle whether the contract had or had not been complied with? It might be confidently affirmed, that on this interpretation of such words no contract containing them ever had been, or ever would be, fulfilled. The more strict you make the construction, the more difficult you make it to be practically settled. You are also drawing within its scope things of no real effect. Can it be supposed that reasonable men, making a contract reaching over half the globe, and having before their eyes the contingencies which were certain to occur in distant seas and ports, could have thus contracted? Why give to a practical instrument a construction so impracticable?
2. It has been decided, in a large number of English cases, that such clauses as 'ship to proceed with all convenient speed,' or 'in a reasonable time,' and similar clauses, are not, in charter-parties, conditions precedent, but are merely independent stipulations; and unless the alleged breach goes to the whole root and consideration, it only gives a claim for damages. In Tarrabochia v. Hickie,  the charter contained a provision, that the vessel should 'sail with all convenient speed.' The jury found, in an action for refusing to load, that the vessel did not sail with all convenient speed; but the court held that this was no excuse for a refusal to load, because it did not appear that the object of the voyage was wholly frustrated by the breach of the stipulation. In Dimech v. Corlett,  the vessel was described as now at anchor in the port of Malta; and it was agreed that 'she, being tight, stanch, and strong, and properly manned, and every way fitted for the voyage, should, with all convenient speed, proceed in ballast to Alexandria, in Egypt.' The ship was not then finished, and did not get ready to sail for more than a month. Held, that the failure to sail 'with all convenient speed' was no answer to an action for a refusal to load, because the charterer had not shown that the object of the charter-party was frustrated by the delay; it not being 'shown that the charterer had taken up any other vessel or declined any cargoes, or in any way altered his position, in consequence of the delay.' In Clipsham v. Vertue,  it was held, on demurrer, that a failure to perform a stipulation in a charter-party, to sail 'within a reasonable time,' was no answer to an action for not loading; it not being alleged that the purpose of the voyage was frustrated. In Freeman v. Taylor,  the charter contained a stipulation to proceed from the Cape of Good Hope to Bombay 'with all convenient speed.' The master wilfully deviated, and went to Mauritius, and caused a delay of six weeks. The court directed the jury to find whether the deviation deprived the defendant of the benefit of the contract.
In some cases, it has been held in England that a stipulation in a charter to sail on or before a day certain was a condition precedent; and such stipulations were distinguished from those containing the words, 'all convenient speed,' 'within a reasonable time,' and 'with all possible despatch.'  Such was Baron Pollock's idea in Tarrabochia v. Hickie; but there appears to be no decision in which a clause similar to that in this case has been held to be a condition.
1. The contract is explicit and clear. 'Ship to proceed from Melbourne,'-not from Manilla, or any other port in the Eastern seas, where she might at any time be found. 'With all possible despatch;' that is to say, direct from Melbourne to Calcutta. Do these words leave a doubt that both parties contemplated that the contract should apply only to a vessel at Melbourne? How could the owners have been willing to bind themselves and their ship by a contract which should take effect after she left Melbourne, wheresoever notice reached the master, without making some provision in that contract for a probable or possible state of things which might involve them in severe loss? How could the charterers have been willing, without making some limitation of time, to bind themselves to keep an agent and funds at Calcutta, ready to load a ship under a contract to take effect when notice should reach the master, it may be, in distant seas, and pending or after intermediate voyages?
Cases have been cited on the other side, where charter-parties have provided that the ship should sail with 'all convenient speed,' and in which the provision has been held not to be a condition precedent, entitling the charterer to repudiate the contract. The reason is that stated in some of those cases, viz., that 'what is a convenient speed or reasonable time, must always be a subject of contention. Where terms are so lax and ambiguous as to lead to a difference of opinion, then the stipulation is not a condition precedent.' In the present case, the words 'all possible despatch,' are not equivalent to 'reasonable time,' and leave no ambiguity as to the intention of the parties, as is shown by the above case of Graves v. Legg.
1st. That whether a descriptive statement in a written instrument is a mere representation, and so 'not an integral part of the contract' (unless fraudulently made), or whether it is a substantive part of the contract, is a question of construction by the court.
Mr. Bartlett referred also to Glaholm v. Hays, 8 Fielden, 9 reading from and relying upon them.
Reply: The case of Behn v. Burness, in the Exchequer Chamber, does not apply. There the words, 'now in the port of Amsterdam,' in a charter-party, were held to be a condition. The court, however, did not question the decisions in Tarrabochia v. Hickie, Dimech v. Corlett, and Clipsham v. Vertue, or question any other cases in which it was held that a stipulation that a vessel will sail with all convenient speed, or within a reasonable time, is only an agreement, and not a condition. The court held only that there was a distinction between 'stipulations that some future thing shall be done, or shall happen,' and 'statements in a contract, descriptive of the subject-matter of it, or of some material incident thereof.' The decision was based upon the ground that the statement that the vessel 'was now in the port of Amsterdam,' was of a definite fact at the date of the contract, and was not a stipulation as to the future. In the charter-party of the Mary Bangs, the clause 'ship to proceed from Melbourne to Calcutta with all possible despatch,' is merely a stipulation that a future thing should be done, and cannot, according to any of the principles stated in the opinion in Behn v. Burness, in the Exchequer Chamber, amount of a condition.
^1 1 Hurlstone & Norman, 183.
^2 12 Moore, Privy Council, 199.
^3 5 Adolphus & Ellis, N. S. 265.
^5 Glaholm v. Hays, 2 Manning & Granger, 257; Ollive v. Booker, 1 Exchequer, 416.
^7 8 Law Times, 207, April, 1863.

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


As explained elsewhere on this website, the IRS has recently unveiled a new program that allows taxpayers with undisclosed offshore accounts and assets to “come clean”—with the hope of putting the past behind them. This new program is the 2014 Offshore Voluntary Disclosure Program (2014 OVDP) which similar to the older ones (from 2009, 2011, and 2012), but with some significant changes.
Tax evasion per IRC § 7201.
Filing a false return per IRC § 7206(1).
Failing to file an income tax return per IRC § 7203.
Conspiracy to defraud the government with respect to claims per 18 U.S.C. § 286.
Conspiracy to commit offense or to defraud the government per 18 U.S.C. § 371.
Willfully failing to file an FBAR (or filing a false FBAR) per 31 U.S.C. § 5322.
If you are convicted of tax evasion, you could be imprisoned for up to five (5) years per count, and also have to pay a $250,000 fine.
If you file a false return, you can face a prison term of up to three (3) years per count, and receive a $250,000 fine.
If you fail to file your tax return, you can be imprisoned for one (1) year per count, and be required to pay up to $100,000.
A conviction for conspiring to commit an offense or defraud the government carries a prison term up to five (5) years per count, and a $250,000 fine.
If you are convicted of a conspiracy to defraud the government with respect to claims you can face a ten (10) year prison term per count, or a fine of $250,000.
If you fail to file your FBAR, you can be incarcerated for up to ten (10) years per count, and fined $500,000.
In light of these crimes, is might be asked, “What if I just say I didn’t know about reporting my offshore accounts? Will that get me off the hook?” We answer that next.
FBAR PENALTIES: Does the IRS presume taxpayers do not act criminally? In other words, can I just turn a “blind eye” to the IRS’s requirements to disclose my assets and avoid a possible criminal charge?
“See no evil, hear no evil, . . . and thus do no evil??” In the eyes of the IRS, this statement is false.
Many taxpayers think that if they just decide to remain ignorant of the tax laws relating to their FBAR reporting requirements then the IRS cannot convict them of criminal charges. The IRS disagrees, and so does a recent case.


text:
Doug Johnson passed away peacefully on January 1, 2014. Dennison Associates and MacBeth & Johnson wish to recognize his accomplishments and his professional excellence in all the years he was active in our firm and to recognize the impact he had on the lives of his family, colleagues and friends.
Doug Johnson was from a generation that grew up in the depression, went to war for their country, started families, and became educated professionals through hard work and persistence. Doug’s legacy is represented by his full life. He was loved, admired and respected by all those who knew him.
Doug received his Bachelor of Science in Engineering Physics from the University of Toronto in 1944 and qualified as a Professional Engineer in Ontario in 1946. He received advanced education and training in radar from the Massachusetts Institute of Technology in 1943. During the Second World War, he served on active duty with the Royal Canadian Navy in the Radar Branch achieving the rank of Lieutenant.
Doug studied law at Osgoode Hall and read law with Dr. Harold G. Fox, Q.C., then Canada's leading intellectual property lawyer. Doug was admitted to the Ontario Bar in 1954 and was appointed Queen's Counsel in 1967. Doug was registered as a patent attorney in Canada in 1948 and a patent agent in the United States in 1949.
Doug's experience was extensive and varied in all aspects of intellectual property. He was counsel in many landmark cases including, for example, McPhar v. Sharpe, Hoffman-La Roche v. Frank W. Horner, Varta v. Globe Union, Horn Abbot v. Coulter Sales, RCA v. Hazeltine and Sperry v. John Deere. An area of particular interest to Doug was the law under the Patent Act and other legislation relating to pharmaceuticals.
Doug’s dedication and accomplishments were many and varied. He was a consummate professional and a truly inspirational gentleman. Dennison Associates and MacBeth & Johnson celebrate the man he was, and we look to the future with Doug as our inspiration.

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