Virginia Lawyers Weekly VA Lawyers Weekly
In this in rem complaint under the Anticybersquatting Consumer Protection Act, an Alexandria U.S. District Court denied plaintiff’s motion to waive publication, as sending a notice of an action to the e-mail and postal addresses of the registrant provided to the registrar may give notice to the registrant of the domain name, but it does not provide public notice of the action, as needed in an in rem proceeding, says an Alexandria U.S. District Court.
Plaintiff Facton Ltd. seeks waiver of publication because it has provided notice to the registrants of the domain names of the pending action at both the e-mail and postal addresses listed for the registrants in the WHOIS records. Facton states it has attempted to send the registrant of the defendant domain name estarzone.com notice of this action 10 times and has attempted to send the registrant of the domain name gstaronsale.com notice of this action four times. A declaration establishes that the registrant of the domain name estarzone.com is using the Internet privacy protection service NameCheap.com to hide his or her identity from public access. Facton has attempted to communicate with the registrant through NameCheap.com and the privacy service has confirmed that two e-mail communications submitted have been forwarded to the domain holder of the estarzone.com domain name.
In some instances in the past, this court has waived the publication requirement under the ACPA. This court also has held that publication was unnecessary when the record reflected that the registrant of the defendant domain names had actual notice of the action. In other cases, however, this court has construed the ACPA’s publication element as mandatory, even when a plaintiff has provided actual notice of the suit to the registrant of the defendant domain name.
The court here finds that when a plaintiff proceeds under the in rem provision, notice of the action must be published in a manner directed by the court even when the registrant of the defendant domain name has actual notice of the suit. In an in rem action the defendant is the domain name, not the registrant of the domain name. As in any in rem action, there may be multiple parties claiming rights in the property subject to the proceeding and the issue presented to the court in an in rem action is to determine which claimant, among all potential claimants, is entitled to the res.
Providing notice to known claimants and to the public by publication in an in rem proceeding is an established practice. In other in rem proceedings, notice to the general public is generally considered necessary in order for the court to be in a position to adjudicate all potential claims to the res. While sending a notice of an action to the e-mail and postal addresses of the registrant provided to the registrar in compliance with 15 U.S.C. § 1125(d)(2)(A)(ii)(II)(a) may provide adequate notice to the iiiregistrantiii of the domain name, it does not provide public notice of the action to any and all potential claimants of the res as needed in an in rem proceeding. In order to provide notice of this in rem proceeding to the public, it is necessary to publish notice of this action.
Publication in this case is also appropriate because there is no direct evidence that the registrants have received actual notice of this action.
Motion to waive publication denied.
Facton Ltd v. gstaronsale.com (Trenga, J.) No. 1:10cv1165, Feb. 17, 2011; USDC at Alexandria, Va. VLW 011-3-108, 7 pp.
