Virginia Jurisdiction

[GeorgeK]

A counter-precedent, for those who've argued that Virginia can always be used for jurisdiction for .com disputes:

http://news.com.com/2100-1028-991215.html

"A federal judge in Virginia has dismissed Jerry Falwell's attempt to gain control of the Web address bearing his name, saying the court does not have jurisdiction over the matter."

I imagine Falwell would sue next in either Gary Cohn's jurisdiction, or in his home state (i.e. where the damage is "felt").

 

[jberryhill]

Falwell's home state IS Virginia.

There was a similar case a while back in which it was held that registering a domain name with NSI is insufficient to create personal jurisdiction over the defendant in VA.

 

[GeorgeK]

How would things contrast, though, with:

http://www.dnforum.com/showthread.php?s=&threadid=18345

with regards to "in rem" cases? Perhaps if the defendant *can* be personally served, they *have to be* personally served? Then, if all else fails, use "in rem", with permission of the court? The thread I linked to seems to imply one can use "in rem" strategically, as a first choice, instead of only as a last resort.

Jurisdiction is always complex in international cases, and the internet seems to invariably create international cases (unless your "enemies" are all local, lol).

 

[ObtainADomain]

Lawyers,

What's your opinion of whether Jerry Falwell should have won his name back either through UDRP or through Virginia Jurisdiction (he lost both tries)? Do you think either decision would have been different if Jerry was not thought, by some, to be not politically correct?

 

[jberryhill]

You want an unbiased opinion?

http://www.citizen.org/pressroom/release.cfm?ID=1125
"Public Citizen thanks Philadelphia lawyer John Berryhill for his assistance in defending this case."

Concerning the issue of international disputes and _in rem_ jurisdiction under the ACPA, it is easier to get _in rem_ jurisdiction in those international disputes than in this case, where both parties were US residents.

The piece you are missing is this requirement for _in rem_ jurisdiction under the ACPA:

http://www.law.upenn.edu/law619/f2001/week04/15_usc_1125_jurisdiction.html

"(2)(A) 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) or (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 in a civil action under paragraph (1)"

Although the statute appears to contradict itself later on, courts have required an inability to get personal jurisdiction over the defendant as a pre-requisite to getting _in rem_ jurisdiction.

That's in fact the basis of some of the really good non-jurisdiction decisions that have come out of Virginia. In *those* actions, the plaintiff was trying to prove the *absence* of personal jurisdiction in VA, so that they could proceed _in rem_. Those decisions are now biting the ass of people who are trying to get personal jurisdiction over domain name registrants in VA.

I haven't read this particular decision yet, so I'll be interested to see how, or whether, the court deals with the Calder v. Jones "effects test" that you allude to above, George.

 

[jberryhill]

"The thread I linked to seems to imply one can use "in rem" strategically, as a first choice, instead of only as a last resort."

Well, let's put it this way. You can try. If the defendant doesn't show up, then you will probably succeed anyway. And the defendant may be motivated *not* to show up under such circumstances.

Think about it, there are no monetary damages that can be assessed in an _in rem_ ACPA lawsuit. So, let's say you are the domain name registrant. Do you want to march into court arguing, "Your honor, the plaintiff can't proceed _in rem_ because they *can* get personal jurisdiction over me and qualify for monetary damages."

That's kind of like telling the police, "I couldn't have shoplifted from the convenience store. I was on the other side of town killing my wife at that time."

 

[pljones]

Falwell can always bring his case in Cohn's home district, which I think is the Northern District of Illinois. I believe I read an article in BusinessWire quoting his counsel that they were planning to refile the case there. That's not to say he'll win in the new jurisdiction, but take note that the case isn't over, and probably won't be resolved anytime soon.

 

[DaddyHalbucks]

I imagine Falwell would sue next in either Gary Cohn's jurisdiction, or in his home state (i.e. where the damage is "felt").
++++++++++

I hope so!

Falwell is making a complete ass of himself (again). I hope he does sue again. It will show the world the full extent of his craziness as well as reflect the craziness of religious fruitcakes everywhere.

Falwell's case against Hustler is the Platinum standard. That case went all the way to the US Supreme Court, and handed Falwell a tremendously embarassing defeat.

They say history repeats itself..

 

[[email protected]]

How would things contrast, though, with:

http://www.dnforum.com/showthread.php?s=&threadid=18345

with regards to "in rem" cases? Perhaps if the defendant *can* be personally served, they *have to be* personally served? Then, if all else fails, use "in rem", with permission of the court? The thread I linked to seems to imply one can use "in rem" strategically, as a first choice, instead of only as a last resort.

Jurisdiction is always complex in international cases, and the internet seems to invariably create international cases (unless your "enemies" are all local, lol).

Sorry, But the ACPA specifically states that in rem is available only if jurisdiction is not obtainable through some other method.

15 U.S.C. § 1125(D)(2)
(2) (A) 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) or (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 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.

Harrods specificlly confirms this and explains the statutes breadth in detail. 302 F.3d 214

Stevan Lieberman
Greenberg & Lieberman
http://www.aplegal.com

 

[GeorgeK]

Welcome to the board, Stevan. Nice win for Elequa in the syr.com case -- a good template for others to use.

http://arbiter.wipo.int/domains/decisions/html/2003/d2003-0729.html