Delhi High Court
Rohit Singh & Anr vs Apple Inc on 4 July, 2018
Equivalent citations: AIRONLINE 2018 DEL 704
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 4th July, 2018
+ CS(COMM) 153/2016, IA No.2885/2016 (u/O XXXIX R-1&2
CPC), IA No.2886/2016 (u/O XI R-1(4) CPC) & IA No.5333/2016
(u/S 151 CPC).
ROHIT SINGH & ANR ..... Plaintiffs
Through: Ms. Shwetasree Majumder, Mr.
Prithvi Singh & Mr. Vishnu Rege,
Advs.
Versus
APPLE INC ..... Defendant
Through: Mr. Sudhir Chandra, Sr. Adv. with
Mr. Pravin Anand, Mr. Aditya Gupta
& Mr. Utkarsh Srivastava, Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
IA No.2885/2016 (of the plaintiff under Order XXXIX Rules 1&2 CPC).
1. The plaintiffs, Rohit Singh and Vyooh Low Level Computing LLP,
have instituted this suit for permanent injunction to restrain the defendant
Apple Inc. USA from, by using the mark „SPLITVIEW‟ or a deceptively
similar variant thereof in relation to any of its software products, passing off
its goods / services as that of plaintiffs and for recovery of damages.
2. The suit came up before this Court first on 1st March, 2016 when,
while issuing summons thereof, vide ex parte ad interim order the defendant
was restrained from using in any manner the trade mark of the plaintiffs
„SPLITVIEW‟ for any of the programmes and features within a programme
of the defendant or in any hardware or software sold by the defendant
directly or through dealers.
CS(COMM) 153/2016 Page 1 of 16
3. The defendant preferred FAO(OS)(COMM) No.11/2016 against the
order aforesaid of grant of ex parte injunction and the Division Bench, vide
judgment dated 7th April, 2016, vacated the ex parte ad interim injunction
pending the disposal of this application for interim relief.
4. Pleadings have been completed and the counsels were heard on the
application for interim relief on 15th July, 2016, 28th July, 2016, 24th October,
2016, 19th January, 2017 and 23rd February, 2017 and orders reserved.
5. It is the case of the plaintiffs in the plaint (i) that the plaintiff no.1 is a
software developer working as a consultant with the plaintiff no.2; (ii) that
the plaintiff no.1, while residing in the United States of America (USA),
developed three proprietary software products targeted at the end consumer,
which were christened „SplitView‟, „Disk View‟, „ViewScribe‟ respectively;
(iii) that „SplitView‟ was the trademark ascribed to the plaintiffs‟ most
commercially successful product, a software that permitted the user to
simultaneously work on multiple windows on the user‟s computer screen;
(iv) that the plaintiff no.2 is the exclusive licensee of the plaintiff no.1‟s
software products; (v) that the uniform nomenclature adopted by the plaintiff
no.1 for all his software product offerings comprises the suffix „View‟ which
serves to identify them as a family of products from the same source i.e. the
plaintiff no.2; (vi) that in August, 2005, when the plaintiff no.1 came up with
the software product and christened it „SplitView‟ there was no other product
in the market which would help a user work on two applications
simultaneously; (vii) that the plaintiffs‟ software product under the trade
mark „SplitView‟ is available in two versions i.e. SplitView Personal Edition
and SplitView Terminal Services Edition; (viii) that the plaintiff no.1
CS(COMM) 153/2016 Page 2 of 16
purchased the domain name www.splitview.com in August, 2005 and since
then has been continuously selling its software product under the trade mark
„SplitView‟ and providing regular services and updates on the said website;
(ix) that the plaintiff no.1 has filed trade mark applications for „SplitView‟ in
India and in USA in Class-9 and which are pending registration; (x) that the
software product under the trade mark „SplitView‟ is well known, widely
recognized, hugely popular, has prestigious customers and has recorded
humongous sales profits; (xi) that the plaintiffs, in December, 2015 were
made aware that the defendant had launched an, update to their operating
software MAC X OS E1 Capitan (For Computer Devices) and iOS 9 (for
mobile devices) and the updated software comprised a feature that allows the
monitor or screen to be split into two halves to enable working on two
applications simultaneously and which feature had been named „SPLIT
VIEW‟ by the defendant; (xii) that the plaintiffs further learnt that „SPLIT
VIEW‟ was being hailed as the most important feature in the iOS 9 and
MAC OS X E1 Capitan (version 10.11) releases; (xiii) that functionality-
wise, „SPLIT VIEW‟ is identical to the plaintiffs‟ software product under the
trade mark „SplitView‟; the only difference is that the defendant‟s product is
bundled with their own operating system and is not available for retail sale
nor is it meant for Operating Systems other than the defendant‟s iOS 9 and
MAC OS X E1 Capitan Operating System; (xiv) that the plaintiffs sent e-
mail dated 30th September, 2015 to put the defendant on notice of the
plaintiffs‟ trade mark rights; (xv) that because of the popularity of the
defendant‟s brand name, „SPLIT VIEW‟ was automatically high up in the
Google search results, making the plaintiffs‟ software appear like an
imitation of the defendant‟s „SPLIT VIEW‟; (xvi) that the defendant, in its
CS(COMM) 153/2016 Page 3 of 16
response dated 14th January, 2016, stated that the defendant did not wish to
claim trade mark rights over the mark „SPLIT VIEW‟ and is using it in a
descriptive sense and in any case „SPLITVIEW‟ cannot be a trade mark and
there could be no possibility of confusion as the defendant‟s feature was not
offered as a standalone software product for use on other computers and
mobile devices; (xvii) that the aforesaid explanation tendered by the
defendant is not acceptable because „SPLITVIEW‟ is not an ordinary
English collocation; „SPLIT‟ and „VIEW‟ are not words that would
ordinarily be used in conjunction with each other; there are a number of third
party applications and features in third party operating softwares which
allow for multi monitor functionality and none of these entities adopted
names which are similar to „SPLITVIEW‟ or used „SPLIT VIEW‟ in a
descriptive manner to describe the functionality of their software; and, (xviii)
that many of the users of defendant‟s product who may be using the product
of the plaintiffs‟ also; in such usage, the plaintiffs‟ „SplitView‟ will be a
„zero-footprint‟ software.
6. The defendant has contested the suit inter alia pleading (i) that the
defendant has no office in India and no entity in India is authorized to accept
summons on behalf of the defendant; (ii) that the defendant has used the term
„SPLITVIEW‟ or the phrase „SPLIT VIEW‟, from at least as early as the
year 1993, to describe a multi-windowing feature within its products; in
2006 the defendant began using the term „SPLITVIEW‟ in relation to Xcode
for its OS X and thereafter for OS X and IOS operating systems, to describe
the developers‟ ability to split the user‟s view in the applicable operating
system; the defendant, in the year 2010, also started using the descriptive
terms „SPLITVIEW‟ in connection with an application programme interface
CS(COMM) 153/2016 Page 4 of 16
in the first iPad software development kit; the multiple view functionality
within this kit was referred to as „UISplitViewController‟‟; (iii) that the use
of the descriptive phrase „SPLIT VIEW‟ in relation to Xcode and the iPad
software development kit was derived from the NXSplitView and
NSSplitView with respect to Split View functionalities in the NeXT
operating system software; (iv) that the plaintiffs can claim no rights in the
inherently descriptive phrase „SPLIT VIEW‟, since it describes the
characteristics and the intended purpose of product with respect to which it is
used; (v) that the plaintiffs‟ product „SPLITVIEW‟, which is a descriptive
term, informs the users of the precise „view‟ „splitting‟ function of the
plaintiff‟s software; (vi) that the combination of the terms „Split‟ and „View‟
is in no way unique to the plaintiffs; there are at least 1839 patents with a
priority date before September, 2005 which used the combination terms
„SPLITVIEW‟ or the phrase „SPLIT VIEW‟; (vii) that merely combining
two descriptive words does not lead to a registrable combination; (viii) that
the term „SPLITVIEW‟ and the phrase „SPLIT VIEW‟ are well known in the
trade as being an apt description of a multi-windowing functionality in the
realm of viewing devices, displays, monitors, screens etc.; (ix) that the term
„SPLITVIEW‟ is not distinctive of the plaintiffs; (x) that owing to
overwhelming third party use, the term „SPLITVIEW‟ and phrase „Split
View‟ have become publici juris (xi) that merely because the plaintiffs have
described their multi-windowing features as „Split Monitor‟ or „Multi View‟
or „Dual View‟ or „Multi Screen‟ or „Dual Screen‟ etc. does not entitle the
plaintiffs to contend that the phrase „SPLIT VIEW‟ is not descriptive; each
of these phrases are alternate descriptive phrases and merely because many
alternate descriptive phrases are available for a particular functionality, does
CS(COMM) 153/2016 Page 5 of 16
not detract from the descriptiveness of one such phrase; (xii) that the
plaintiffs also did not even make an application for registration after
claiming to have started using the term in the year 2005 and made such
application only in the year 2016 and the defendant has filed a letter of
protest to the application of the plaintiffs in USA; (xiii) that the defendant
provides Split View functionality as an integrated part of the operating
systems on its iPad tablets and Mac line of notebook and desktop computers
and is using the terms „SPLIT VIEW‟ to describe the functionality allowing
the user to spilt the view on his / her screen on his / her media device into
two parts such that the user can manually move and resize windows; (xiv)
that Trade Marks law protects such descriptive use of a phrase and
recognizes the right of public to use common words with the words carrying
their normal meaning and is permitted use within the meaning of Sections 30
and 35 of the Trade Marks Act, 1999; (xv) that owing to the descriptive
nature of the phrase „SPLIT VIEW‟ and its consequent ineligibility for trade
mark protection, the defendant has not obtained trade mark registrations
therefor and does not claim any trade mark rights with respect thereto; (xvi)
that the defendant has not displayed the phrase with a TM symbol and has not
included that phrase on its widely available trade mark list; (xvii) that many
third parties including Microsoft, Samsung, Apache OpenOffice, Sprint LG,
Bluebeam etc. have extensively used the phrase „SPLIT VIEW‟ or the term
„SPLITVIEW‟ to describe their multi-windowing functionality or a
programming code which enables a programmer to split the view; (xviii) that
extensive use of the descriptive phrase „SPLIT VIEW‟ and term
„SPLITVIEW‟ by third parties shows that the consumers will not rely on this
phrase to form an association with a particular source; (xix) that the
CS(COMM) 153/2016 Page 6 of 16
defendant‟s adoption and use of the phrase „SPLIT VIEW‟ is honest and pre-
dates use of the phrase „SplitView‟ by the plaintiffs; (xx) that there is no
likelihood of a consumer confusing between plaintiffs‟ standalone product
and the defendant‟s operating system based on the defendant‟s limited use of
the descriptive phrase „SPLIT VIEW‟; (xxi) that the plaintiffs have failed to
cite a single instance of actual confusion; (xxii) that the balance of
convenience is in favour of the defendant and the defendant will suffer
irreparable injury if injunction is granted; and, (xxiii) that the plaintiffs are
not entitled to relief also on the ground of inordinate and unexplained delay,
laches, acquiescence and waiver having filed their suit more than ten years
after the defendant‟s first use of the term in connection with its MAC
products.
7. The plaintiffs, in their replication, have pleaded that (i) the plaintiffs‟
trade mark „SplitView‟ is not a dictionary word but a unique combination of
two English language words and is not descriptive; (ii) merely because third
parties are also using the term „SPLITVIEW‟, does not make the term
descriptive; the defence of the defendant, of being the prior user and of the
phrase being descriptive are contradictory; (iii) the phrase / terms
„SPLITVIEW‟ was never used by the defendant in conjunction with a
software programme offering multi-window functionality but was in fact
used as NXSplitView and / or NSSplitView in a developer documentation
manual meant for purchase by software programmers who wished to use the
defendant‟s platform to build software products; (iv) the last release of
NeXTSTEP OS was in 1995 after which the defendant acquired NeXT, Inc.
in 1997 and development and release of the OS was discontinued; (v) when
the plaintiffs developed their multi-window, multi-app multitasking software
CS(COMM) 153/2016 Page 7 of 16
programme - „SplitView‟ in 2005, the NeXTSTEP OS and its APIs had
already been discontinued for ten years; NSSplitView class in the Cocoa
developer API and XCode development environment for OS X operating
system was launched in May, 2006, ten months after the plaintiffs‟ product
„SplitView‟ was launched in August 2005 and is also meant for computer
programmers building applications for the Mac OS X operating system; and,
(vi) the defendant does not use „SPLITVIEW‟ in a descriptive sense and the
members of the trade and consumers identify it as the defendant‟s mark -
this is evident from „SPLITVIEW‟ being written in capital letters and from
the fact that the defendant has claimed trade mark rights in several other
features of OS X E1 Capitan which follow immediately after „SPLITVIEW‟.
8. Though the counsels were extensively heard as elucidated aforesaid,
but have also on 18th April, 2017 filed written submissions. Thus, instead of
recording the verbal submissions made, it is deemed appropriate to record
herein only the written submissions.
9. The counsel for the plaintiffs contended that the following issues
require to be addressed:-
a. Whether the plaintiff‟s trademark „SplitView‟ is descriptive and
hence not capable of being monopolised by the plaintiff.
b. Whether the plaintiff‟s trade mark „SplitView‟ cannot be said to
have acquired distinctiveness due to an allegedly significant
quantum of third party use.
c. Whether the defendant is a prior user of the mark „SPLIT
VIEW‟ through their predecessors.
CS(COMM) 153/2016 Page 8 of 16
d. Whether the defendant is not using „SPLIT VIEW‟ as a
trademark but is using it in a descriptive sense.
10. The counsel for the plaintiffs, in addition to the pleadings aforesaid,
has contended (i) in Global Super Parts Vs. Blue Super Flame Industries
AIR 1986 Del 245 and in Godfrey Philips India Ltd. Vs. Girnar Foods &
Beverages 2005 (30) PTC 1 (SC), Super Flame and Super Cup have been
held to be not descriptive; (ii) „VIEW‟ i.e. vision, cannot be split and divided
and for this reason also „SPLIT VIEW‟ is not descriptive; (iii) only if there is
no other means available to describe a product except by the name by which
the plaintiff calls it, can the plaintiff not claim monopoly; reliance in this
regard is placed on Bayer Co. V. United Drug Co 272 F 505 (DNY 1921),
DuPont Cellophane Vs. Waxed Products 85 F 2d 75 (2nd Cir. 1936) and
Hami Brothers Vs. Hami & Co. AIR 1985 Bom 306; however it is not so in
the present case; (iv) presence of the words „SPLITVIEW‟ in a patent
specification cannot constitute the words as descriptive; (v) large volume of
third party use does not result in mark becoming descriptive if the said use is
not commercial / in the course of trade; reliance in this regard is placed on
Andhra Perfumery Vs. Karupakula AIR 1969 Mad 126 and Mattel Vs.
Jayant Agarwal (2008) 153 DLT 548; (vi) the defence of prior user of the
mark is opposite to the defence of the mark being descriptive; reliance in this
regard is placed on Carlsberg India Pvt. Ltd. Vs. Radico Khaitan Ltd.
(2012) 186 DLT 368 (DB) and Automatic Electric Vs. R.K. Dhawan (1999)
77 DLT 292; (vii) to qualify as prior use, use must be continuous; reliance
in this regard is placed on Kamat Hotels (India) Limited Vs. Royal Orchid
Hotels Limited 2011 (47) PTC 111 and Pioneer Nuts and Bolts Pvt. Ltd. Vs.
Goodwill Enterprises (2009) 163 DLT 209; (viii) even a "feature can have a
CS(COMM) 153/2016 Page 9 of 16
trademark"; the defendant itself is asserting trade mark rights over several
features; (ix) the difference in mode of sale / availability of plaintiffs‟ and
defendant‟s product is not relevant; infringement / passing off is trade
channel agnostic; reliance is placed on British Sky Broadcasting Group Plc
Vs. Microsoft Corporation [2013] EWHC 1826 (Ch); (x) this is a case on
reverse confusion where the senior user suffers injury not because junior user
seeks to profit from the goodwill associated with the senior user‟s mark but
because public comes to assume that the senior user‟s products are really the
junior user‟s or that the senior user is somehow connected to the junior user;
reliance is placed on A&H Sportswear, Inc. Vs. Victoria's Secret Stores,
Inc. 237 F.3d 198 (2000) and Sands, Taylor & Wood Company Vs. The
Quaker Oats Company 978 F.2d 947 (7th Cir. 1992) and on passages from
McCarthy on Trade Marks & Unfair Competition 4 th Edition; (xi) though
earlier the top ten search engine results pertained to the plaintiffs, a search
for „SPLITVIEW‟ on the same search engine today reveals that the
defendant is now the top hit and which is direct evidence of erosion of
plaintiffs‟ goodwill; (xii) balance of convenience is in favour of the
proprietor of the trade mark and the economic scale of the defendant‟s
operation cannot be a defence to passing off; reliance in this regard is placed
on Satyam Infoway Ltd. Vs. Sifynet Solutions Pvt. Ltd. AIR 2004 SC 3540
and on Hindustan Pencils (P) Ltd. Vs. India Stationary Products Co. Ltd.
(1989) 38 DLT 54; and, (xiii) delay cannot defeat an injunction when the
question of passing off is involved; reliance is placed on Laxmikant Patel
Vs. Chetanbhat Shah 2002 (24) PTC 1 SC and Midas Hygience Vs. Sudhir
Bhatia (2004) 3 SCC 90.
CS(COMM) 153/2016 Page 10 of 16
11. The defendant, in its written submissions, in addition to its pleadings,
has contended (i) that the plaintiffs have failed to establish goodwill and
reputation in the mark „SplitView‟; reliance is placed on Satyam Infoway
Ltd. supra; (ii) the mark of the plaintiff is descriptive and reliance in this
regard is placed on Marico Ltd. Vs. Agro Tech Foods Ltd. 2010 (44) PTC
736, Cadila Healthcare Ltd. Vs. Gujarat Co-operative Milk Marketing
Federation Ltd. 2009 (41) PTC 336 (Del) (DB); (iii) likelihood of confusion
is the essence of passing off; (iv) the defendant‟s products prominently bear
the defendant‟s famous trade mark Apple, the Apple mark / logo, which are
clearly indicative of the origin of the products and inform consumers of the
source of the products; reliance in this regard is placed on Kaviraj Pandit
Vs. Navaratna Pharmaceutical Laboratories AIR 1965 SC 980 and Star
Bazaar Vs. Trent Ltd. 2010 (43) PTC 154 (Del) to contend that added matter
is sufficient to avoid confusion in an action for passing off; (v) the Division
Bench of this Court in Intex Technologies (India) Ltd. Vs. AZ Tech (India)
2017 SCC OnLine Del 7392 has held that in order to establish reverse
confusion, the plaintiff must establish goodwill and reputation in India and
that the defendant being a junior user has swamped the senior user‟s
goodwill and reputation; the plaintiffs have failed to establish either; and,
(vi) A&H Sportwear, Inc. supra relied upon by the counsel for the plaintiffs
on the aspect of reverse confusion also lists the factors to be established by
the plaintiff in order to constitute reverse confusion and the plaintiffs herein
have failed on each of the counts.
12. I have considered the controversy and after examining each of the
contentions and studying the judgments cited, am unable to find the plaintiffs
entitled to any interim relief for the following reasons:-
CS(COMM) 153/2016 Page 11 of 16
A. The suit is not for enforcement of the statutory right of
infringement of trade mark but for enforcement of the natural
right of restraining the other from passing off of his goods /
services as that of the plaintiff. The essence of passing off can
also be gathered from Section 27 titled "No action for
infringement of unregistered trade mark", of the Trade Marks
Act, 1999. Sub Section (1) thereof provides that no person shall
be entitled to institute any proceeding to prevent, or to recover
damages for, the infringement of an unregistered trade mark.
Sub Section (2) thereof provides that nothing in the said Act
shall be deemed to affect right of action against any person "for
passing off goods or services as the goods of another person or
as services provided by another person, or the remedies in
respect thereof". At the interim stage, this Court is thus required
to protect the plaintiffs, only if finds the defendant to be passing
off its goods or services as that of the plaintiffs. That is however
not the case of the plaintiffs also. The plaintiffs do not claim
that anyone, owing to use by the defendant of the phrase / term
„SPLITVIEW‟, whether as a trade mark of one of the features of
its product or as descriptive of the said feature, will buy the
product of the defendant assuming it to be that of the plaintiffs.
Once that is so, in my view, in an action for passing off, the
plaintiff cannot be entitled to interim injunction.
B. The question, whether the plaintiffs or their trade mark
otherwise suffer injury of dilution by wrongful association of
the plaintiffs product with that of the defendant or by reverse
CS(COMM) 153/2016 Page 12 of 16
confusion as aforesaid, are questions which not only cannot be
adjudicated upon without trial but even otherwise, the elements
of irreparable injury and balance of convenience are not
satisfied to merit grant of an interim injunction on the basis
thereof.
C. Sands, Taylor & Wood Company supra on which reliance was
placed by the counsel for the plaintiffs to urge the argument of
senior user and junior user, was a case of federal trade mark
infringement and not a case of passing off and at the stage of
final determination and not at the stage of interim injunction.
D. Similarly, A&H Sportwear, Inc. also relied upon by the counsel
for the plaintiffs on the aspect of reverse confusion was a trade
mark infringement case at the stage of final disposal of the suit.
E. In fact, during the hearing, the thought did cross my mind that
the effect if any of the association, even if made between the
plaintiffs and the defendant, at least at this stage appears to be to
the benefit rather than to the detriments of the plaintiffs; if at all
anyone familiar with the trade mark of the plaintiffs forms an
opinion that the defendant, in its product has incorporated the
software under the mark „SplitView‟ of the plaintiffs, in my
mind it prima facie appears that the reputation and / or goodwill
of the plaintiffs would go up, rather than down.
F. As distinct from Section 27(2) of the Trade Marks Act
preserving the right of action against any person passing off his
goods or services as that of the plaintiff, Section 29(1) defines
CS(COMM) 153/2016 Page 13 of 16
infringement of a mark merely by use of a mark which is
identical with or deceptively similar to the registered trade
mark. Thus, for infringement under Section 29(1), mere use of
an identical or deceptively similar mark is made actionable
whether it amounts to passing off or not. It is only in Section
29(2), also constituting as infringement of a registered trade
mark, use of a mark which because of identity with registered
trade mark and similarity of goods or services covered by the
registered trade mark is likely to cause confusion on the part of
the public or which is likely to have an association with the
registered trade mark, that the concept of likelihood of
confusion by association is introduced. Also, vide Section
29(3), a statutory presumption is raised in favour of the
plaintiffs.
G. Passage from McCarthy on Trade Marks and Unfair
Competition relied upon by the counsel for the plaintiffs also
are in the context of infringement under the statute and not in
the context of passing off.
13. IA No.2885/2016 is thus dismissed.
IA No.2886/2016 ( of the plaintiffs under Order XI Rule 1(4) of the
CPC).
14. Pleadings in the suit have been completed and the suit is ripe for
framing of issues and during the hearing no objection was taken to any of the
documents.
15. The application is thus allowed and disposed of.
CS(COMM) 153/2016 Page 14 of 16
IA No.5333/2016 (of the defendant under Section 151 CPC).
16. This application has since become infructuous and is disposed of.
CS(COMM) 153/2016.
17. On the pleadings of the parties, the following issues are framed:-
(i) Whether the defendant is passing off its goods / service as that
of the plaintiffs? OPP
(ii) Whether the plaintiffs cannot maintain an action for passing off
owing to the phrase / term of „SPLITVIEW‟ being descriptive
and therefore not qualifying as a trade mark? OPPr
(iii) Whether the defendant is not using the words „SPLIT VIEW‟ as
a trade mark and if so, it what effect? OPD
(iv) Whether the plaintiffs‟ trade mark „SplitView‟ cannot be said to
have acquired distinctiveness due to significant quantum of use
by third parties? OPD
(v) Whether the defendant and its predecessor are the prior users of
the term „SPLIT VIEW‟ and if so, to what effect? OPD
(vi) If all or any of the above issues are decided in favour of the
plaintiffs and against the defendant, to what relief if any are the
plaintiffs entitled to from the defendant? OPP.
18. No other issue arises.
19. The parties to file their list of witnesses within 15 days.
20. The plaintiffs to file affidavit by way of examination-in-chief of all
their witnesses within six weeks.
CS(COMM) 153/2016 Page 15 of 16
21. List before the Joint Registrar on 27th August, 2018 for scheduling the
dates of trial.
RAJIV SAHAI ENDLAW, J.
JULY 4, 2018 „pp‟..
CS(COMM) 153/2016 Page 16 of 16