Civil Action No. 99-1916-A
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA, ALEXANDRIA
DIVISION
95 F. Supp. 2d 528
May 3, 2000, Decided
May 3, 2000, Filed
JUDGES: Honorable Leonie M. Brinkema, United States District Judge.
OPINIONBY: Leonie M.
Brinkema
OPINION:
[*529] MEMORANDUM OPINION
Before the Court is the Motion of Defendant
lucentsucks.com's [sic] to Dismiss the Complaint, in which defendant argues that plaintiff's
failure to comply with the requirements of the recently enacted
Anti-Cybersquatting Consumer Protection Act mandates dismissal of the
complaint. For the reasons stated below, the motion will be granted.
I. BACKGROUND
Plaintiff Lucent Technologies, Inc. is a Delaware Corporation with its
principal place of business in Murray Hill, New Jersey. It has filed this in
rem action against the
domain name
lucentsucks.com under the Anti-Cybersquatting Consumer Protection Act ("ACPA"),
15 U.S.C. § 1125.
Plaintiff alleges that, on November 30, 1995, its predecessor filed an
application with the United States Patent and
Trademark
[**2] Office ("PTO") to
register LUCENT as a
trademark. Since 1996, plaintiff has manufactured, marketed and sold telecommunications
equipment and services under the marks LUCENT and LUCENT TECHNOLOGIES. It has
registered and applied to
register LUCENT marks with the PTO for a variety of goods and services. Plaintiff
alleges that the money and effort it has expended on advertising and promoting
its products and services under these marks has created valuable goodwill in
the marks.
According to plaintiff, on August 2, 1998, Russell Johnson
registered the
domain name
lucentsucks.com through Network Solutions, Inc. ("NSI"), located in Herndon, Virginia. Plaintiff alleges that the website at this
domain name contains pornographic photographs and services for sale.
Plaintiff advances two causes of action: Count I,
Trademark Infringement, 15 U.S.C. § 1114(1) and 15 U.S.C. § 1125(a); and Count II,
dilution, Section 43(c) of the Lanham Act, 15 U.S.C. § 1125(c). Plaintiff seeks court order directing NSI to transfer
registration of
lucentsucks.com to Lucent.
II. DISCUSSION
Lucentsucks.com raises several arguments
[**3] in support of its argument to dismiss the complaint: plaintiff did not satisfy
the in
rem jurisdictional requirements of the ACPA; an
internet
domain name is not
"property," for purposes of obtaining in
rem jurisdiction; and First Amendment principles would be violated if plaintiff could force
forfeiture of defendant
domain name. We find for the reasons discussed below that plaintiff failed to satisfy
the jurisdictional requirements of the ACPA, and therefore will dismiss the
complaint on that basis. Because the ACPA is a new statute, and is still the
source of some confusion, we also briefly address some of defendant's other
arguments.
A. The ACPA
On November 29, 1999, the Anticybersquatting Consumer Protection Act ("ACPA"), Pub. L. No. 106-113, 113 Stat. 1501 (codified as amended at
15 U.S.C. §§ 1114, 1116, 1117, 1125, 1127, 1129 (1999)), went into effect as an amendment to the
Trademark Act. Congress enacted the ACPA to address the growing phenomenon of
"cyberpiracy or cybersquating," which involves
"registering, trafficking in, or using
domain names (Internet addresses) that are identical or confusingly similar
[*530] to
trademarks with the
bad-faith
[**4] intent to profit from the goodwill of
trademarks." H.R. Rep. No. 106-412, at 7 (1999). n1
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n1 The House found that cyberpiracy can be damaging to businesses in a number
of ways:
First, a cyberpirate's expropriation of a mark as part of a
domain name prevents the
trademark owner from using that mark as part of its
domain name. As a result, consumers seeking a
trademark owner's Web
site are diverted elsewhere, which means lost business opportunities for the
trademark owner. A cyberpirate's use may also blur the distinctive quality of the mark
and, when linked to certain types of
Internet activities such as pornography, may also tarnish the mark. Finally, businesses
are required to police and enforce their
trademark rights by preventing unauthorized use, or risk losing those rights entirely.
H.R. Rep. No. 106-412, at 6 (1999).
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Supporters of the ACPA were particularly concerned about anonymous
trademark violators on the
Internet. That is, they were troubled by the increasing trend of individuals
registering
[**5]
domain names in violation of
trademark rights and then eluding
trademark enforcement because they could not be found. The Senate Judiciary Committee
observed:
A significant problem faced by
trademark owners in the fight against cybersquatting is the fact that many
cybersquatters
register
domain names under aliases or otherwise provide false information in their
registration applications in order to avoid identification and service of process by the
mark owner.
Sen. Rep. No. 106-140, at 4 (1999). The Judiciary Committee believed that
including an in
rem provision in the ACPA would alleviate the problem of anonymous cybersquatters,
by allowing a mark owner to file an action against the
domain name itself, provided it satisfied the court that it exercised due
diligence in trying to locate the owner of the
domain name but could not do so. Id.
B. Plaintiff's Efforts to Comply with the
In
Rem Provision
Once plaintiff learned of
lucentsucks.com, its in-house counsel sought the name and address of the
registrant for that
domain name from NSI, the registry. NSI's records showed a
registrant by the name of Russell Johnson. On November 11, 1999, plaintiff's
[**6] in-house counsel sent a letter via Federal Express to Johnson at the address
listed with NSI. In it, plaintiff demanded that Johnson
"immediately cease and desist from engaging in or permitting any further or
future use of the Lucent Marks . . ." (Opp. to Def. Ex. D.) The letter was returned by Federal Express as
undeliverable.
Plaintiff contacted NSI to determine whether Johnson had changed his address on
the
lucentsucks.com
registration. Although NSI's agreement with
registrants requires that they maintain current
mail and
e-mail addresses, n2 no changes of address were noted for Johnson. Plaintiff then
sent another demand letter on December 8, 1999, to the addresses listed with
NSI. This letter, however, was sent first class United States Postal Service
mail and
e-mail. In the letter, plaintiff referred to the in
rem provision of the just-enacted ACPA:
Because we have not been able to reach you, Lucent Technologies Inc. intends to
proceed with filing an in
rem
civil action against your
domain name
registration
Lucentsucks.com pursuant to Section 43(d)(2)(A) of the Lanham Act, 16 U.S.C. § 1125(d)(2)(A).
(Opp. to Def. Ex. E.) The
e-mail
[**7] was returned as undeliverable. However, the letter sent via first class
mail was successfully delivered to Johnson. The record
[*531] shows that Johnson had moved after
registering the
domain name with NSI, and that he left a forwarding address with the United States
Postal Service ("U.S.P.S").
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n2 Under the subheading
"Accurate Information," the NSI contract provides:
As further consideration for the Network Solutions service(s) you agree to: (1)
provide certain current, complete and accurate information about you as
required by the application process; and (2) maintain and update this
information as needed to keep it current, complete and accurate.
http://www.networksolutions.com/legal/service-agreement.html
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On December 16, 1999, eight days after the second demand letter was mailed and
e-mailed, plaintiff filed this action. On December 21, 1999, thirteen days
after the second demand letter was sent, Johnson called Lucent's outside
counsel. Counsel informed Johnson that an in
rem suit had been
[**8] filed, and Johnson provided counsel a pager number. On December 22, 1999,
Johnson called counsel again, allegedly asking for money in exchange for
releasing the
domain name. Counsel called Johnson later that day to reject the offer. Johnson gave
counsel his new address during that call, and counsel sent a copy of the
complaint to that address.
Although plaintiff now knew the location of the
registrant, it continued to prosecute its in
rem action under the ACPA. Plaintiff moved for Entry of Order to Publish
Notice of Action on January 7, 2000. The ordered was entered and plaintiff published
a
notice of the action in The Washington Post for two consecutive weeks. It also mailed
copies of the Order and the complaint to
registrant's address as provided by NSI and as provided by Johnson. Plaintiff filed an
affidavit of compliance on February 11, 2000.
C. Plaintiff has not Satisified the Requirements of the
In
Rem Provision
By the express terms of Section 1125(d)(2)(A)(ii) of the ACPA, a plaintiff may
proceed with an in
rem action against a
domain name if and only if the Court finds n3 either that the plaintiff is unable to
obtain in
personam jurisdiction
[**9] over the
domain name
registrant, or that the plaintiff is unable to find the
domain name
registrant. n4 Plaintiff does not base in
rem jurisdiction on an inability to assert in
personam jurisdiction. n5 Instead, it rests
[*532] its case on
Section 1125(d)(2)(A)(ii)(II), which states, in pertinent part:
The owner of a mark may file an in
rem
civil action against a
domain name in the judicial district in which the
domain name
registrar . . . that
registered or assigned the
domain name is located if- . . . (ii) the court finds that the owner- . . . (II)
through due
diligence was not able to find a person who would have been a defendant in a
civil action under paragraph (1) by-(aa)
sending
notice of the alleged violation and intent to proceed under this paragraph to the
registrant of the
domain name at the postal and
e-mail address provided by the
registrant to the
registrar; and (bb) publishing
notice of the action as the court may direct promptly after filing the action.
15 U.S.C. § 1125(d)(2)(A)(emphasis added).
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n3 Therefore, the authority cited in Plaintiff's Supplemental Memorandum in
Opposition to Motion to Dismiss, for the principle that subsequent events
cannot divest the court of jurisdiction once it attaches, is irrelevant. By the
terms of Section 1125(d)(2)(A)(ii), jurisdiction does not attach absent
findings by the Court that plaintiff complied with the in
rem provision.
[**10]
n4 The in
rem provision, in its entirety, provides:
The owner of a mark may file an in
rem
civil action against a
domain name in the judicial district in which the
domain name
registrar,
domain name registry, or other
domain name authority that
registered or assigned the
domain name is located if-
(i) the
domain name violates any right of the owner of a mark
registered in the Patent and
Trademark Office, or protected under subsection (a) and (c); and
(ii) the court finds that the owner-
(I) is not able to obtain in
personam jurisdiction over a person who would have been a defendant and in a
civil action under paragraph (1); or
(II) through due
diligence was not able to find a person who would have been a defendant in a
civil action under paragraph (1) by-
(aa)
sending a
notice of the alleged violation and intent to proceed under this paragraph to the
registrant of the
domain name at the postal and
e-mail address provided by the
registrant to the
registrar; and
(bb) publishing
notice of the action as the court may direct promptly after filing the action.
15 U.S.C. § 1125(d)(2)(A).
n5 15 U.S.C. § 1125(d)(2)(A)(ii)(I). This subsection was the basis for an in
rem action asserted in an earlier case before this Court, Caesars World, Inc. v. Caesars-Palace.COM, 2000 U.S. Dist. LEXIS 2671, No. 99-550-A (E.D. Va. Mar. 3, 2000). Because the subsection is not at issue
here, plaintiff's reliance on Caesar's World is improper. Morever, we note that
Section 1125(d)(2)(A)(ii)(I) was devised by Congress to provide remedies for
trademark owners where
domain names infringing on their marks are
registered to foreign entities over whom in
personam jurisdiction is unattainable. See H.R. Rep. 106-412, at 9 (1999). That is not the case
here. In our case, it is undisputed that Russell Johnson is a California
resident who
registered the
domain name
lucentsucks.com with NSI, which has its principal place of business in Herndon, Virginia. This
"minimum contact" is sufficient to satisfy due process as well as to support in
personam jurisdiction over Johnson pursuant to the Virginia Long Arm statute. Va. Code
§ 8.01-328.1.
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[**11]
We find that, based on the allegations in plaintiff's complaint, Russell
Johnson, the listed
registrant of defendant
lucentsucks.com would be
"a person who would have been a defendant in a
civil action under paragraph (1)." n6 Therefore, proceeding any further in
rem is not appropriate. We also find that plaintiff failed to satisfy the due
diligence clause, Section 1125(d)(2)(A)(ii)(II)(aa), because it did not allow a
reasonable time for Johnson to respond to its December 8, 1999
notice before filing the in
rem complaint.
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n6 The pertinent language of paragraph(1) is:
A person shall be liable in a
civil action by the owner of a mark . . . if . . . that person (i) has a bad faith intent
to profit from that mark . . . and (ii)
registers, traffics in, or uses a
domain name that- [poses
trademark violations].
15 U.S.C. § 1125(d)(1)(A) (emphasis added).
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1. Due Process Requires
Reasonable Time
Plaintiff's counsel waited only eight days between
sending
[**12] the December 8, 1999 letter via
mail and
e-mail and filing this action. Plaintiff contends that these actions satisfied the
express terms of the ACPA in
rem provision and should therefore the complaint should go forward. However, to
find, as plaintiff urges, that an eight-day
waiting period between
sending
notice of an intent to proceed in
rem and filing an in
rem action, is sufficient, would run afoul of Due Process. It is true that
Congress did not
specify the
waiting period. In the face of this ambiguity, we must interpret the ACPA in
rem provision consistently with Due Process requirements. NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 500, 59 L. Ed. 2d 533, 99 S. Ct. 1313 (1979) ("an Act of Congress ought not be construed to violate the Constitution if any
other possible construction remains available"). Furthermore, for an in
rem action to proceed pursuant to Section 1125(d)(2)(A)(ii)(II), the ACPA requires
the Court to find that plaintiff used
"due
diligence" when attempting to notify
registrant. 15 U.S.C. § 1125(d)(2)(A)(ii)(II). We find that a
waiting period of merely eight days does not demonstrate the requisite
[**13]
"due
diligence."
The seminal case addressing the
notice aspect of procedural Due Process is Mullane v. Central Hanover Bank & Trust co., 339 U.S. 306, 94 L. Ed. 865, 70 S. Ct. 652 (1950). In it, the Supreme Court observed:
An elementary and fundamental requirement of due process in any proceeding
which is to be accorded finality is
notice, reasonably calculated, under all the circumstances, to apprise interested
parties of the pendency of the action and afford them an opportunity to present
their objections. . . . The
notice must of be such nature as reasonably to convey the required information, and
it must afford a
reasonable time for those interested to make their appearance.
Id. at 314 (citations omitted) (emphasis added); see United States v.
[*533] James Daniel Good Real Prop., 510 U.S. 43, 53, 126 L. Ed. 2d 490, 114 S. Ct. 492 (1993) ("right to prior
notice and a hearing is central to the Constitution's command of due process"). This circuit mandates diligent enforcement of Due Process requirements in
connection with in
rem forfeiture proceedings such as this. United States v. Borromeo, 945 F.2d 750, 752 (4th Cir. 1991)
[**14] ("due process protections ought to be diligently enforced, and by no means
relaxed, where a party seeks the traditionally-disfavored remedy of forfeiture").
There are few cases specifically addressing what length of time is a
"reasonable time" between notification of a possible or pending court action and the action. n7
However, we are certain that eight days is insufficient. The
notice provided must be more than
"mere gesture." Mullane, 339 U.S. at 315. We note that potential parties to a court action share the same tendency as
the rest of us to take vacations of two weeks or more without leaving a
forwarding address, and that, when they make a permanent change of residence,
mail forwarded by the United States Postal Service arrives more slowly than
mail addressed directly to the new residence. n8 Furthermore, the Due Process
requirements contemplate the time reasonably necessary to digest the
notice and to find an attorney. See Grunin v. International House of Pancakes, 513 F.2d 114, 121 (8th Cir. 1975) (due process satisfied where
notice of proposed settlement was mailed to class members 19 days before hearing,
especially in light of
"continuing
[**15]
notice" afforded members because litigation was two years ongoing and all counsel
appearing at earlier settlement hearing were kept informed of all subsequent
developments in case).
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n7 See Bradford v. Edelstein, 467 F. Supp. 1361, 1372 (S.D. Tex. 1979) (customers' Due Process rights violated where utility board allowed only 24 hours between
notice of proposed disconnection of phone services and actual disconnection); see
also Air Lines Stewards and Stewardesses Assoc. v. American Airlines, Inc., 455 F.2d 101, 108 (7th Cir. 1972) (in class action, class members were afforded a
"reasonable time" of 30 days between
sending the
notice of a hearing and the hearing).
n8 Although we can find no legal authority acknowledging, in the context of Due
Process
notice requirements, that it takes time to forward
mail, the Third Circuit made an analogous observation in Greenfield v. Villager Indus., Inc., 483 F.2d 824 (3d Cir. 1973). The Greenfield Court found a denial of Due Process in a class action under the
federal securities laws where only 30 days elapsed between
sending
notice to absentee class members and their deadline to file proofs of claim:
We have a serious problem with the limited period of time in which shareholders
were permitted to file proofs of claim or requests for exclusion. . . . Pro
forma gestures will not suffice. . . . Appellants present a reasonable argument
that the thirty-day period was insufficient for those members of the class who
had left their stock in street names with their stockbrokers. A one-month
period hardly seems sufficient time for brokerage firms to search their
records, notify
customers, probably by
mail, for whom they held shares in street name, received instructions from these
customers, again probably by
mail, and file the proofs of claim or request for exclusion.
Id. at 833-34.
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[**16]
2. Other Statutes Provide a Waiting Periods of at Least Ten Days
Where Congress has specified a
waiting period by statute in situations analogous to the ACPA in
rem provision, ten days is the shortest amount of time specified. Perhaps the
statutory provision most analogous to the provision at issue is Rule C of the
Federal Rules of Civil Procedure, which allows an in
rem action
"to enforce any maritime lien" or whenever a federal statute provides for
"a maritime action in
rem or a proceeding analogous thereto." Fed. R. Civ. P. C(1). The rule permits the claimant of property that is
subject to an in
rem action 10 days after the
rem has been seized to file a claim and 20 days after that to serve an answer.
Fed. R. Civ. P. C(6). In the standard in personam action, Rule 12 of the
Federal Rules of Civil Procedure allows 20 days after service of process to
file an answer. Fed. R. Civ. P. 12(a)(1)(A).
[*534] Neither Rule C nor Rule 12 are directly on point. In our case, we are
considering what
notice is required before an in
rem action is instituted, and how long a plaintiff must wait to file an in
rem action after
sending
notice by
mail and
e-mail, which may
[**17] or may not reach the addressee. In contrast, Rule C
specifies the
waiting period after an in
rem action is instituted, and Rule 12
specifies a
waiting period after service of process is complete, that is, after actual
notice has occurred. Nevertheless, taken together, these rules strongly suggest that
Congress would not consider eight days to be a sufficient
waiting period after mailing
notice of a potential in
rem action to a person who may be affected by that action.
3. Congress Prefers
In
Personam Jurisdiction
Our holding is consistent with the Congressional intent behind the in
rem provision of the ACPA. The legislative history clearly shows that Congress
enacted the provision to provide a last resort where in
personam jurisdiction is impossible, because the
domain name
registrant is foreign or anonymous. Congress did not intend to provide an easy way for
trademark owners to proceed in
rem after jumping through a few pro forma hoops.
At least in part, Congressional concern for the Due Process rights of
domain name
registrants was inspired by this court's decision in Porsche Cars of North America, Inc. v. Porsh.Com, 51 F. Supp. 2d 707 (E.D. Va. 1999).
[**18] In Porsche, Judge Cacheris highlighted the important constitutional
distinction between suing the
domain name
registrant in personam and not being able to find the
registrant, in which case, one may proceed in
rem:
Porsche correctly observes that some of the
domain names at issue have
registrants whose identities and addresses are unknown and against whom in personam
proceedings may be fruitless. But most of the
domain names in this case have
registrants - whose identities and addresses are known, and who rightly would object to
having their interests adjudicated in absentia. The Due Process Clause requires
at least some appreciation for the differences between these two groups, and
Porsche's pursuit of an in
rem remedy that fails to differentiate between them at all is fatal to the
Complaint.
Id. at 712 (citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 317-18, 94 L. Ed. 865, 70 S. Ct. 652 (1950)). Senator Leahy quoted the above language when he introduced the current in
rem provisions of ACPA and commented:
The [Porsche] court held that in
rem actions against allegedly diluting marks are
[**19] not constitutionally permitted without regard to whether in
personam jurisdiction may be exercised.
. . .
This legislation does differentiate between those two different categories of
domain name
registrants and limits in
rem actions to those circumstances where in
personam jurisdiction cannot be obtained.
145 Cong. Rec. S14,986-03, S15,026 (daily ed. Nov. 19, 1999) (statement of Sen.
Leahy).
In our case, the identity and address of the
registrant of the offending
domain name,
lucentsucks.com, has been found timely and in
personam jurisdiction is possible. This is not the scenario envisioned by Congress when it enacted
the in
rem provision. Therefore, plaintiff is not entitled to proceed with this action.
D. Defendant's Other Arguments
Besides failure to satisfy the in
rem provision, defendant argues that the complaint should be dismissed because a
domain name is not
"property" justifying in
rem jurisdiction, and plaintiff's action is an affront to free speech rights.
[*535]
1.
Domain Names are Property
Defendant contends that an
Internet
domain name is not a
"thing," in the same way that a boat or a bridge is a
"thing," because it does
[**20] not occupy space or exist in a particular place. Therefore, according to
defendant, a
domain name cannot constitute a
"res" for purposes of establishing in
rem jurisdiction.
This argument has been raised before with regard to the ACPA, and we find Judge
Bryan's articulate rejection of it beyond reproach:
There is no prohibition on a legislative body making something property. Even
if a
domain name is no more than data, Congress can make data property and assign its
place of
registration as its situs.
Caesars World, Inc. v. Caesars-Palace.COM, 2000 U.S. Dist. LEXIS 2671, No. 99-550-A, at 5 (E.D. Va. Mar. 3, 2000).
2.
Domain Names Signaling Parody Suggest Absence of Likelihood of Confusion and
Bad-Faith Intent
Defendant maintains that dismissal of this complaint is also warranted because,
as a matter of law, plaintiff could not make out a violation of
trademark rights without infringing the
registrant's free speech rights. We need not rule on this argument, because we have found
other grounds for dismissal. Nevertheless, we note that defendant's position
has some merit.
The likelihood of confusion is a key element when determining whether
trademark infringement or
dilution
[**21] has occurred.
Petro Stopping Centers, L.P. v. James River Petroleum, Inc., 130 F.3d 88, 91 (4th Cir. 1997) (plaintiff must show that it has a valid
trademark and that the defendant's reproduction, counterfeit, copy, or colorable
limitation of it creates a likelihood of confusion). The Fourth Circuit has
acknowledged that effective parody
"diminishes any risk of consumer confusion," and can therefore not give rise to a cause of action under the
Trademark Act. Anheuser-Busch, Inc. v. L&L Wings, Inc., 962 F.2d 316, 321 (4th Cir. 1992). Defendant argues persuasively that the average consumer would not confuse
lucentsucks.com with a web
site sponsored by plaintiff.
Moreover, no
civil action for
trademark infringement or
dilution lies under the ACPA unless the
registrant's bad faith intent is demonstrated. 15 U.S.C. § 1125(d)(1)(A)(i). Courts may consider nine factors when determining whether a bad
faith intent exists, including
"the person's bona fide noncommercial or fair use of the mark in a
site accessible under the
domain name." 15 U.S.C. § 1125(B)(i)(IV). The House Judiciary Committee explained that
[**22] this provision is intended to:
Balance the interests of
trademark owners with the interests of those who would make the lawful noncommercial or
fair uses of others' marks online, such as in comparative advertising, comment,
criticism, parody, newsreporting, etc. . . . The fact that a person may use a
mark in a
site in such a lawful manner may be an appropriate indication that the person's
registration or use of the
domain name lacked the required element of
bad-faith.
H.R. Rep. No. 106-412, at 9 (1999) (emphasis added). As one federal court has
explained,
"'sucks' has entered the vernacular as a word loaded with criticism." Bally Total Fitness Holding Corp. v. Faber, 29 F. Supp. 2d 1161, 1164 (C.D. Cal. 1998) (granting summary judgment to defendant website designer on claims brought
pursuant to the
Trademark Act, where defendant
registered the
domain name ballysucks.com). n9 A successful
[*536] showing that
lucentsucks.com is effective parody and/ or a cite for critical commentary would seriously
undermine the requisite elements for the causes of action at issue in this case.
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n9
Registering
domain names in the form of [company name]
sucks.com to provide a forum for critical commentary is not uncommon, and is part of an
Internet phenomenon known as
"cybergriping." See Greg Farrell, From Sour Grapes to Online Whine, USA Today, April 6, 2000,
at 01B (man spends $ 100,000 to
register
domain names of over 500 of world's largest companies plus
sucks.com suffix,
"a traditional Web addendum to identify a
site for complaints"); Thomas E. Anderson, Emerging Intellectual Property Issues in Cyberspace, 78
Mich. B.J. 1260, 1263 (1999) ("Cybergripers are websites dedicated to criticizing a person, product, or
business").
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[**23]
III. CONCLUSION
Because we find that plaintiff instituted this in
rem action too hastily after mailing and e-mailing the
notice of a proposed in
rem action to the
registrant of
lucentsucks.com, we cannot make the necessary prerequisite findings to permit an in
rem action to proceed pursuant to Section 1125(d)(2)(A)(ii)(II) of the ACPA.
Therefore, defendant's motion will be granted, and plaintiff's in
rem action will be dismissed by an appropriate order.
The Clerk is directed to forward copies of this Memorandum Opinion to counsel
of record.
Entered this 3rd day of May, 2000.
Leonie M. Brinkema
United States District Judge
Alexandria, Virginia
ORDER
For the reasons stated in the accompanying Memorandum Opinion, the Motion of
Defendant
lucentsucks.com's [sic] to Dismiss the Complaint is GRANTED, and it is hereby
ORDERED that this case be and is dismissed, without prejudice.
The Clerk is directed to forward copies of this Order to counsel of record.
Entered this 3rd day of May, 2000.
Leonie M. Brinkema
United States District Judge
Alexandria, Virginia