Richard Starkey v. Mr.
Bradley
Claim Number: FA0612000874575
PARTIES
Complainant is Richard Starkey (“Complainant”), represented by Stephen
J. Strauss, of Fulwider Patton LLP,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ringostarr.mobi>, registered with Go Daddy
Software, Inc.
PANEL
Each of the undersigned certifies that he has acted independently and
impartially and to the best of his knowledge has no known conflict in serving
as Panelist in this proceeding.
Hon. Sir Ian Barker, Hon. Tyrus R Atkinson, Jr. and Mr David H.
Bernstein as Panelists.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on December 21, 2006; the
National Arbitration Forum received a hard copy of the Complaint on December 27, 2006.
On December 22, 2006, Go Daddy Software, Inc. confirmed by e-mail to
the National Arbitration Forum that the <ringostarr.mobi> domain name is
registered with Go Daddy Software, Inc.
and that the Respondent is the current registrant of the name. Go Daddy
Software, Inc. has verified that Respondent is bound by the Go Daddy Software, Inc. registration agreement
and has thereby agreed to resolve domain-name disputes brought by third parties
in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the
“Policy”).
On January 3, 2007, a
Notification of Complaint and Commencement of Administrative Proceeding (the
“Commencement Notification”), setting a deadline of January 23, 2007 by which
Respondent could file a Response to the Complaint, was transmitted to
Respondent via e-mail, post and fax, to all entities and persons listed on
Respondent’s registration as technical, administrative and billing contacts,
and to postmaster@ringostarr.mobi by
e-mail.
A timely Response was received and determined to be complete on January 19, 2007.
The National Arbitration Forum received a timely Additional Submission
from Complainant on January 24, 2007, and determined it to be complete and in
compliance with Supplemental Rule 7. A
timely Additional Submission was received from the Respondent on January 29,
2007. It was determined to be complete
and in compliance with Supplemental Rule 7.
On January 26, 2007, pursuant to Respondent’s
request to have the dispute decided by a three-member Panel, the National
Arbitration Forum appointed Hon. Sir Ian Barker, as Presiding Panelist and Tyrus R. Atkinson, Jr. and David H.
Bernstein as Panelists.
Because Complainant’s Additional Submission
responded to statements in the Response that Complainant could not have
anticipated (including with respect to Respondent’s intentions to operate a fan
site), the Panel decided to consider this submission. See,
e.g., eeParts, Inc. v. E.E. All Parts Corp., FA 481753 (Nat. Arb. Forum
July 14, 2005). In order to ensure that
the parties are treated equally as required by Rule 10(b), the Panel also
considered Respondent’s supplemental submission. See,
e.g., Alain-Martin Pierret v. Sierra Technology Group LLC, FA 472135 (Nat.
Arb. Forum July 1, 2005).
On January 31, 2007, Complainant filed a further
submission which had not been sought by the Panel. On February 8, 2007, Respondent filed a
further submission which also had not been requested by the Panel. These documents were received outside of the
time specified in the Supplemental Rules and did not add any new facts or legal
arguments that could not have been addressed in earlier submissions. Accordingly, the Panel, in the exercise of
its discretion, declined to consider them.
See, e.g., INVESTools Inc. v.
KingWeb Inc., FA 598845 (Nat. Arb. Forum Jan. 9, 2006).
In light of the parties’ supplemental
submissions, pursuant to Rule 10(c), the Panel extended the date for expected
decision from February 9 to February 12, 2007.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
Complainant, Mr. Richard Starkey, is an internationally famous musical
artist who performs under the distinctive stage name and mark of RINGO
STARR. He is one of the surviving
members of the Beatles who all came from
Respondent registered the disputed domain name on October 6, 2006. Complainant gave him no rights to use the
name. The domain name currently directs
to a website with a search engine and with links to other sites selling various
products and services.
Respondent has registered the disputed domain name in bad faith in an
attempt purposely to attract internet users seeking Complainant’s goods and services
online. He derives benefit by receiving
“click-through” fees for redirecting internet users on the <godaddy.com>
website.
He is passively holding the name which constitutes evidence of bad
faith. The fact of registration of the
disputed domain name of such a well-known celebrity is evidence in itself of
bad faith registration and use. See Dame
Elizabeth Taylor and Others v. Day After, FA 653586 (Nat. Arb. Forum Apr. 14, 2006).
Complainant cited precedents under the UDRP where the registration of a
trademark as a domain name and without any other word is indicative of bad
faith registration and faith.
B. Respondent
Respondent agrees with Complainant’s contentions concerning the fame of
Complainant and of his mark and also that he owns the registered
trademarks.
The disputed domain name is registered as the address for a “mobile
specific website” currently under development.
When published, the website will be a free-to-view text-based and
factual fan site for a mobile platform.
It will be a non-commercial reference point for all fans who wish to
obtain information on Complainant through a mobile internet platform. Completion of this project has not yet
occurred for a number of technical reasons.
The disputed domain name was acquired less than three months before the
Complaint was filed. There has been
insufficient time to complete the technical requirements for the website to be
yet functioning.
In the meantime, the site which is registered with <godaddy.com>
was automatically redirected by Go Daddy for its own commercial gain. Respondent has no commercial or revenue
relationship with Go Daddy and does not benefit financially from the webpage
which is a defaulted setting by <godaddy.com> for all new domain name
registrations.
The top of the web page clearly indicates that the disputed domain name
is parked free, courtesy of <godaddy.com>. Respondent claims that at the time of
registration, this parking practice of Go Daddy was not made clear to him. Had it been so, he would have taken action to
prevent the issue arising.
Respondent has a legitimate interest in the creation of a free-to-use
textual, factual, non-commercial fan site for this mobile platform. He intends to provide a complete chronology
of the life and work of Ringo Starr. A
statement will be placed on the website so as not to mislead visitors or
tarnish the mark and a link will be made to the Complainant’s primary website
of <ringostarr.com>.
He cites the case of Richard
Starkey v. LOVEARTH.net, FA 97089 (Nat. Arb. Forum June 4, 2001). At that time the trademark registrations were
not in place and the case focused on Mr. Starkey’s common law trademark
status.
Respondent does not intend to use the disputed domain name in violation
of Complainant’s mark.
Respondent acknowledges that he did have knowledge of Complainant’s
rights in his trademarks but these rights were inapplicable to the proposed use
of the disputed domain name. Respondent
has made preparations to use the disputed domain name by setting in motion
preparations for the website. Respondent
did not, however, disclose any details concerning those preparations because
“they involve the development of new and complex technology for the mobile
platform, which is commercially sensitive and still under development.”
He did not act in bad faith.
There has been no purposeful action to attract internet users to the
website under the disputed domain name.
He has received nothing for the “click-through” fees. Other cases cited by Complainant are not
relevant. In some, there had been a
lengthy delay after registration of the domain name.
Respondent has not attempted to sell the disputed domain name, as
happened in the Elizabeth Taylor
case, and he has no intention of selling it.
He has not registered the disputed domain name in order to prevent
Complainant from reflecting his mark in the disputed domain name. There is no intention to create a likelihood
of confusion or source of sponsorship or affiliation of endorsement. The intended use is for a non-profit,
information-based text fact site.
Because there is no equivalent to .org for the mobile interface, .mobi
is platform-specific and must cater for both commercial and non-commercial
uses.
Complainant should have taken advantage of the “sunrise” period and
registered its .mobi name then. It has
not put to use the domain name <ringo-starr.net> transferred as a result
of the LOVEARTH.net case.
Respondent has no history of serial cybersquatting, unlike respondents
in other decisions under the Policy. In
several of the decisions quoted by Complainant, the respondents failed to
respond.
C. Complainant’s
First Additional Submission
Complainant notes that Respondent acknowledged its rights to the mark
and name and that he had knowledge of them prior to registration of the
disputed domain name.
Respondent must establish rights or legitimate interests in the
disputed domain name. The onus is on him
under paragraph 4(c) of the Policy. He
has not discharged this onus.
Respondent acknowledged that his actual knowledge of the international
fame of Complainant’s and his mark was his primary motivating factor in
registering the disputed domain name. A
number of decisions were cited to show that registration of a domain name,
incorporating a famous mark with knowledge of Complainant’s rights in the mark,
is evidence in itself of bad faith registration and use.
Complainant’s investigations show that Respondent has registered other
celebrity domain names including <keithmoon.mobi>,
<charliewatts.mobi>, <davidgilmour.mobi>, <robertplant.mobi>
and <jimmypage.mobi>. None of
these domains is linked to any active website.
Accordingly, Complainant submits that Respondent, as a
Respondent’s statements concerning his intentions for the site are
self-serving: particularly, his assertions that the site will be non-commercial
is not credible. See Stoneygate 48 Limited and Wayne Mark Rudy v. Hew Marshall, D2006-0916
(WIPO Oct. 6, 2006) where the Panel said:
The
Panel has no idea what the Respondent means by “non-commercial fan site” and
“…in any event the Panel is unable to accept that the Respondent had no eye to
the potential commercial benefit.
This quotation is particularly apposite, given that Respondent has
registered other celebrity domains.
Respondent does not state when he intends to launch the site. It makes no sense to wait until he actually
uses the name. Inevitably, such use
would create confusion, as described in the Policy. Given the undisputed international
recognition and fame of the RINGO STARR mark, it is inconceivable that
Respondent could use an identical domain name in any manner which would not
infringe Complainant’s rights. It would
therefore be irrational to wait until Respondent uses the disputed domain name
before the Panel determines whether it is registered or used in bad faith. Any disclaimer would not be effective.
Complainant mentioned other NAF and WIPO decisions where panels have
considered that fan sites cause confusion as to their source, sponsorship,
affiliation or endorsement, vis a vis
the celebrity. See George Harrison v. LOVEARTH.net, FA 97085 (Nat. Arb. June 4,
2001).
Respondent provided inaccurate WHOIS information at the time of
registration. He identified himself in
the Response by his full name and provided his personal email address. However, at the time of registration, the
WHOIS information showed the registrant as “Mr. Bradley” with an email address
of .mobidomains@googlemail.com”. This is
further evidence of bad faith registration and use.
D. Respondent’s
First Additional Submission
Respondent relies on the majority view in Bruce Springstein v. Jeff Burgar & Bruce Springstein Club,
D2000-1532 (WIPO Feb. 7, 2001) and Edward
van Halen v. Deborah Morgan, D2000-1313 (WIPO Jan. 4, 2001), as upholding
the right of individuals to create and maintain as free-to-use fan sites, using
domain names which consists entirely of the complainant’s mark.
A delay in a website launch is not in itself evidence of bad faith,
given that preparation is needed. See Wal-Mart Stores Inc. v. Walsucks and
Walmarket Puerto Rico, D2000-0477 (WIPO July 25, 2001).
Respondent acknowledges that he owns the .mobi domain names referred to
in Complainant’s Additional Submission.
He has some 400 domain names not related to rockstar fan-sites. His extensive .mobi portfolio will provide
tourist and educational information over the mobile platform. He is developing a new and genuine technology
platform commercially to exploit the non fan-site domains only. The technology will be used without
commercial gain for the fan-sites of the persons mentioned by Complainant.
The development of the rock star sites is:
[E]ssentially a hobby for the Respondent and his co-workers who are
fans of the rock stars concerned.
The fan sites will only benefit the celebrities and they will contain
only factual information and be no threat to any official site. He is not a cyber-squatter under the Lanham
Act. Complainant has given no evidence to
support his concern about the proposed site being commercial.
Respondent’s reason for not using his personal email address is to
avoid being spammed.
There are other trademarks combining the words RINGO STARR.
The .mobi TLD is unique and should be differentiated from .org, .com,
.net, when comparing the disputed domain name with the trademark.
FINDINGS
Complainant is internationally known and has
a worldwide reputation as a member of the Beatles – arguably the best-known
musical grouping of the 20th Century. He owns
Respondent was given no rights by Complainant
to use Complainant’s mark.
Respondent is not commonly known as Ringo Starr.
The Respondent registered the disputed domain
name in September 2006. He alleges that
he is to provide on the site a non-commercial fan club which will not seek to
detract from the mark of Complainant.
This site is not yet operational.
No evidence of “demonstrable preparations” has been given.
Respondent has registered .mobi domain names
using the names of other musical notables.
In the meantime, the relevant site has been
“parked” by Godaddy.com with a reference to “click-through” sites.
DISCUSSION
Paragraph 15(a) of the Rules for Uniform Domain
Name Dispute Resolution Policy (the “Rules”) instructs this Panel to “decide a
complaint on the basis of the statements and documents submitted in accordance
with the Policy, these Rules and any rules and principles of law that it deems
applicable.”
Paragraph 4(a) of the Policy requires that the Complainant must prove
each of the following three elements to obtain an order that a domain name
should be cancelled or transferred:
(1)
the
domain name registered by the Respondent is identical or confusingly similar to
a trademark or service mark in which the Complainant has rights;
(2)
the
Respondent has no rights or legitimate interests in respect of the domain name;
and
(3)
the
domain name has been registered and is being used in bad faith.
There is no doubt that the disputed domain
name is identical to Complainant’s mark, both the registered marks and his
common law mark. Respondent does not
dispute this. Accordingly, the first
limb of the Policy is made out.
The suffix .mobi should be treated the same
way as .com and should be ignored when comparing the mark and the disputed
domain name. See Mansueto Ventures LLC v.
Witte, D2006-1479 (WIPO Jan.19, 2007)
(<inc.mobi>). It is irrelevant
that the Complainant did not avail itself of the .mobi “sunrise”
registration. Its right to file a
complaint under the UDRP is unaffected.
Complainant gave Respondent no rights. It therefore falls to Respondent to come
forward with evidence showing that he comes within one or other of the
exceptions in paragraph 4(c) of the Policy.
Respondent must show in terms of Paragraph 4(c)(i) either that he has
made demonstrable preparations to use the disputed domain name for a legitimate
commercial offering of goods and services, or that, in terms of Paragraph
4(c)(iii), he is making a legitimate non-commercial or fair use of the disputed
domain name without intent for commercial gain misleadingly to divert consumers
or to tarnish the trademark or service mark.
Contrary to the suggestion in Respondent’s Additional Submission, the
onus is on Respondent to come forward with evidence that he comes within
Paragraph 4(c), though the burden of proof ultimately remains on Complainant.
Whilst the Panel accepts that three months
may not be a long enough time within which to set up a sophisticated website,
the Panel finds that Respondent has not satisfied its obligation to come
forward with evidence showing at least demonstrable preparations towards the
creation of a noncommercial fan site.
Thus, regardless of whether use of the disputed domain name for such a
site could constitute a legitimate interest, Respondent’s failure to show
demonstrable preparations dooms its arguments with respect to the second limb
of the Policy.
Respondent has given no evidence to show what
were the “demonstrable preparations” taken between September 25, 2006, when the
disputed domain name was registered, and December 21, 2006, the date the proceedings
were filed. No business plan was
produced. No documentary evidence was submitted
showing efforts by Respondent to create a fan site. No affidavit nor declaration under penalty in
support of his contentions was provided, as is common. Such would have made his assertions more
credible. In the absence of such
evidence, Respondent’s alleged intention to develop a legitimate interest in
the disputed domain name is insufficient to defeat Complainant’s evidence that
the use is unauthorized. See Edward
van Halen v. Deborah Morgan, D2000-1313 (WIPO Jan. 4, 2001).
The Panel considers, after considering the
submissions and precedents, that the Respondent cannot succeed in showing that
he comes within Paragraph 4(c) of the Policy because he has not shown
demonstrable preparations to use the disputed domain name in connection with a bona fide offering of goods and
services.
In the Panel’s view, Respondent has not
discharged the onus under Paragraph 4(c) and the second limb of the Policy
Paragraph 4(a) is proved.
Registration
and Use in Bad Faith
Complainant does not allege that Respondent
has attempted to sell the disputed domain name to Complainant, that Respondent
is preventing Complainant from reflecting its mark in a corresponding domain
name, or that Respondent is a competitor trying to disrupt Complainant’s
business. Rather, its allegations of bad
faith focus on Respondent’s alleged registration of the disputed domain name
for the purpose of intentionally attracting Internet users to Respondent’s website
for commercial gain, by creating a likelihood of confusion as to the source,
sponsorship affiliation or endorsement by Complainant of Respondent’s
website.
Although the bad faith factor is distinct
from the legitimate interest factor, the two are intertwined in this case. That is because, in assessing whether the
Respondent’s registration and use of the disputed domain name is in bad faith,
the Panel needs to decide whether the Respondent has the right to operate a fan
site at this the disputed domain name.
In other words, if the Respondent may appropriately run a fan site at
the disputed domain name, then its registration and use of the disputed domain
name would not be bad faith, per se (though
any future commercialization of this website would give rise to a new claim for
cybersquatting). Alternatively, if the
Respondent has no right to operate a fan site at the disputed domain name, then
the registration and use of the disputed domain name for such a fan site would
constitute bad faith.
According to the WIPO Overview of WIPO Panel
Views on Selected UDRP Questions, this is an issue on which panels are
split. Some panels believe that an
active, noncommercial fan site may be a legitimate interest; others believe
that a fan does not have the right to express his or her views, even if
positive, on a fan site that uses a domain name that is identical to the
celebrity’s trademark. The Panel must
thus directly face the question of whether the use of the disputed domain name
for an unauthorized fan site can constitute a legitimate interest.
The juxtaposition of the timing of the
introduction of the .mobi suffix and the registration of a domain name of such
an internationally famous person as Ringo Starr indicates a high degree of
opportunism. The fact that the website
resolves to ‘click through’ other sites is also a factor when assessing bad
faith in the round. The fact that the
Respondent has also registered .mobi names for other British musicians casts doubt
on his statement that he is not in the business of cyber-squatting.
In the view of the majority of the Panel,
there is an inference that the Respondent registered and used the disputed
domain name in bad faith. The inference
comes from his admitted knowledge of the worldwide fame of Ringo Starr and the
fact that he registered this name so soon after .mobi registrations were
permitted.
It would be natural for persons to access a
website using the disputed domain name thinking that they would find some
connection with Ringo Starr and/or his merchandise available through that
name. Finding a website which is an
unofficial fansite will create confusion and a false association in the minds
of internet users.
The majority of the Panel agrees with the
cases cited by the Complainant, particularly the Elizabeth Taylor, supra, and the Stevie Wonder case, i.e. Stevland
Morris a/k/a Stevie Wonder v. Unofficial Fan Club, FA 453986 (Nat. Arb. Forum
June 22, 2005). These cases show that
the mere fact of registration of a famous name is in itself evidence of bad
faith.
The majority also disagrees with the majority
in the Bruce Springstein decision
(quoted by the Respondent) and prefers the view of the minority. The words of the dissenting Panelist there
are appropriate here, with the necessary modifications:
Given a vast array of information on the performer Bruce Springstein
the internet user is more likely than not to associate
<brucespringstein.com> with commercial activity and with an official
domain name, resolving to an official website.
There is ample authority that knowledge of a
famous mark at date of registration can be evidence of bad faith registration
and use. See, e.g., Stevie Wonder, supra; Hugh Jackman v. Sun, FA 248716
(Nat. Arb. Forum May 10, 2004); David
Gilmour Music Overseas Ltd v. Cenicolla, D2000-1450 (WIPO Jan. 22, 2001); Bayerische Motoren Werke AG v.
Examples of the contrary view are Britannia Building Society v. Britannia
Fraud Prevention, D2001-0505 (WIPO July 12, 2001) (where the domain name
<britanniabuildingsociety.org> was used for a criticism site) and Howard Jarvis Taxpayers Association (HJTA) v.
McCauley, D2004-0014 (WIPO Apr. 22, 2004) (<hjta.com> used as a
criticism site). An example of a domain
name which incorporated a famous trademark plus another word is Ryanair Ltd v. Coulston, D2006-1194
(WIPO Dec. 12, 2006) where, in a case involving <ryanaircampaign.org>, a
criticism site, the Panel found a legitimate interest and no proof of bad
faith. See also Covance Inc v. Covance, D2004-0206 (WIPO Apr. 30, 2004) where
<covancecampaign.com>, involving European parties, was found to be a
legitimate commercial use.
The Panel in both the HJTA and Ryanair cases
discerned a distinction between UDRP decisions involving US parties where a
more robust view of “free speech” rights was taken, and those where the parties
were UK citizens or citizens of elsewhere in the European Union or of the
British Commonwealth.
In Tridos
Bank NV v. Dobbs, D2002-0776 (WIPO Oct. 3, 2002), it was held that even
although the respondent may have had a genuine grievance, it could not use the
English complainant’s mark in its domain name without adornment. To similar effect is British Nuclear Fuels Plc v. Greenpeace International, D2001-1318
(WIPO Jan. 10, 2002) where it was held, in a case involving British and Dutch
parties, that the right to use free speech to criticize is different from the
right to use another’s trademark in a domain name.
Under the Nominet system for UK names, (which
is not the same system as the UDRP), an Expert held in Ryanair Ltd v. Michael Coulston (Nominet DRS 3655) that the
registration of a trademark as a domain name for a criticism site was not a
“fair” registration since the use of an identical domain name made confusion
likely. This case exemplifies the legal
approach in the
In the present case, the majority of the
Panel prefer the view that the registration of a trademark as a domain name
without further adornment is likely to cause confusion to internet users and
therefore bad faith is shown.
In the Panel’s view, therefore, the
Respondent has registered and uses the disputed domain name in bad faith.
DECISION
Having established all three elements required under the ICANN Policy,
the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <ringostarr.mobi> domain name be TRANSFERRED
from Respondent to Complainant.
Hon. Sir Ian Barker (Presiding) Panelist
Hon.
Tyrus R. Atkinson Panelist
Dated: February 12, 2007
I join most of the majority’s decision. For the reasons cogently stated by my fellow panelists, I agree that Complainant has trademark rights, that the domain name is identical thereto, and that Complainant has demonstrated that Respondent has failed to show demonstrable preparations towards the creation of a fan site, and thus that Complainant has established that Respondent lacks a legitimate interest in the domain name. However, I do not agree with the majority’s conclusion with respect to bad faith. Accordingly, I write separately to indicate my dissent from that one part of the majority’s decision.
As
my learned co-panelists have noted, the question of bad faith in this case
turns on the legal question of whether Respondent could lawfully use the domain
name for a non-commercial website. As
the majority also notes, and as identified by the WIPO Overview of WIPO Panel
Views on Selected UDRP Questions, this is a question on which panels are
split. In addition, as the majority
accurately notes, a number of decisions (including Howard Jarvis Taxpayers
Association v. McCauley, D2004-0014
(WIPO Apr. 22, 2004) and Ryanair Ltd.
v. Coulston, D2006-1194 (WIPO Dec.
12, 2006) have tried to reconcile the disparate views on criticism sites (which
apply with equal force with respect to fan sites, since fanatics are just the
flip side of critics) by noting that, when US law applies, free speech and fair
use issues tend to favor allowing the use of a criticism (or fan) website at a
domain name address consisting of a trademark plus a top level domain (such as <ringostarr.mobi>, or some other
domain name in the form of “trademark.tld”) whereas, when European legal
principles apply, such domain names may not be permitted unless there are
additional words indicating that the site is not the authorized site of the
trademark owner (e.g., ringostarrfansite.mobi).
Because both
parties in this case are British, one might say that British legal principles
should apply. If that were the case, a
panel might conclude that there is no right in
In this case,
though, it is not appropriate to look to British legal principles. That is because Complainant has provided a
Having concluded
that the United States view of fan sites should control, I would hold that,
even though Respondent has not shown demonstrable preparations towards his fan
site, he appears to have the right to lawfully launch a noncommercial fan site
at the domain name ringostarr.mobi in the future, and thus the mere
registration of that domain name is not bad faith. See
Edward van Halen v. Morgan, D2000-1313
(WIPO Jan. 4, 2001). If Respondent were
to follow through on that plan, and launch a noncommercial
website, it could not constitute bad faith use under the Policy because a
finding of bad faith (at least on the basis on which the majority rests its
decision) requires a showing of “commercial gain.” In the absence of any other evidence of bad
faith (and there is none here), I would find that Complainant has not proven
bad faith registration and use. (I would
add, though, that if Respondent were to passively hold the domain name without
launching a fan site after a reasonable period of time, that might well
constitute bad faith as it would support the inference that Respondent
registered the domain name for some illegitimate reason; similarly, if
Respondent were later to use the domain name for purposes other than a wholly
noncommercial fan site, it similarly would support an inference that the
original registration was not in good faith after all; in both cases, I would
thus allow a case to be refilled in light of the changed circumstances).
Accordingly, and
with the complete respect for my co-panelists, I respectfully dissent.
David H. Bernstein, Panelist
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