Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Montblanc-Simplo Gmbh v. Achatstylomontblanc.Com.

United States District Court, Fourth Circuit

December 16, 2013

MONTBLANC-SIMPLO GMBH, Plaintiff,
v.
ACHATSTYLOMONTBLANC.COM, et. al., Defendants.

REPORT AND RECOMMENDATION

IVAN D. DAVIS, Magistrate Judge.

This matter is before the Court on Plaintiff's Motion for Default Judgment against Defendants, , , , , , , , , , ("Defendants" or "Defendant Domain Names") pursuant to Federal Rule of Civil Procedure ("FRCP") 55(b)(2). (Dkt. No. 13.) After a licensed attorney for Defendants failed to appear at the hearing on October 11, 2013, the undersigned Magistrate Judge took this matter under advisement to issue this Report and Recommendation. Upon consideration of the Complaint, the Motion for Default Judgment, and the supporting exhibits, the undersigned Magistrate Judge makes the following findings and recommends that default judgment be entered against Defendants.

I. INTRODUCTION

Montblanc-Simplo GmbH ("Plaintiff") filed the Complaint on August 16, 2013, seeking relief under the Anti-Cybersquatting Consumer Protection Act ("Act" or "ACPA"), 15 U.S.C. § 1125(d) ("ACPA"), based on lei li's ("Registrant's") bad-faith use of the domain names, , , , , , , , , . (Compl. ¶¶ 2-3.) The ACPA grants trademark owners a remedy against "cybersquatting." Cybersquatting occurs when a trademark owner claims that another party registers or uses the owner's trademark as a domain name with the bad faith intent of profiting from the sale or use of the domain name.[1] Plaintiff has moved for default judgment against Defendant Domain Names and requests that this Court order Verisign, Inc. ("Verisign") to transfer the registration of, , , , , , , , , to Plaintiff.[2] (Compl. Prayer For Relief ¶¶ 1-3.)

A. Jurisdiction and Venue

Rule 55 of the Federal Rules of Civil Procedure provides for the entry of default judgment when "a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend." The court must have both subject matter and personal jurisdiction over a defaulting party before it can render a default judgment. This Court has subject matter jurisdiction over this case pursuant to 28 U.S.C. §§ 1331 and 1338 because this case arises under the federal Trademark Act of 1946, 15 U.S.C. §§ 1051, et seq. (Compl. ¶ 8.)

This Court also has in rem jurisdiction over the Defendants under 15 U.S.C. § 1125(d)(2)(A) because the registrar wherein the Domain Names are registered, Verisign, is located within this district in Reston, Virginia. (Compl. ¶¶ 9-10, 26-35.) Similarly, venue is appropriate in this District under 28 U.S.C. § 1391(a), as well as 15 U.S.C. § 1125(d)(2)(C)(i), which states that "a domain name shall be deemed to have its situs in the judicial district in which... the domain name registrar, registry, or other domain name authority that registered or assigned the domain name is located." ( See Compl. ¶ 12.)

B. Service of Process

The ACPA allows a trademark owner to file an in rem civil action against a domain name and provides instructions on how to provide sufficient notice of such an action. Specifically, the ACPA provides that service of process in an in rem action may be accomplished by sending notice of the alleged violation and intent to proceed under the ACPA to the registrant of the domain name at the postal and e-mail addresses provided by the registrant to the registrar, and by publishing notice of the action as the court may direct promptly after filing the action. 15 U.S.C. § 1125(d)(2)(A) and (B).

The undersigned finds that Plaintiff has complied with all the notice requirements necessary to bring an in rem action against Defendant Domain Names under the ACPA. Plaintiff determined that all Defendant Domain Names are registered with the same domain registrar. Plaintiff also determined that each of the registrants of Defendant Domain Names have the same registrant name and contact information, a fabricated mailing address in China, the same email address listed in the WHOIS database of the Registrar, and the same contact email address listed on both the homepage and the "contact us" page of each website. (Decl. of Elan Raffel ¶ 4.)

On July 8, 2013, Plaintiff emailed a notice letter alleging violations of Plaintiff's trademark rights and Plaintiff's intent to proceed under ACPA to the Registrant at the administrative email address identified in the WHOIS database and the email address identified on the homepage and the "contact us" page of Defendants' websites. (Decl. of Elan Raffel ¶ 5; Compl. ¶ 25.) On July 9, 2013, Plaintiff mailed a hard copy of the notice letter by FedEx International Economy Service ("FedEx") to the Registrant to the mailing address identified in the WHOIS database. (Decl. of Elan Raffel ¶ 11.) Shortly thereafter, FedEx informed Plaintiff that the mailing address listed in the WHOIS directory for all ten Defendant Domain Names was incorrect, and the letters could not be delivered. (Decl. of Elan Raffel ¶¶ 13-14.) Finally, on July 25, 2013, Plaintiff emailed a second notice letter alleging violations of Plaintiff's trademark rights and Plaintiff's intent to proceed under ACPA to the Registrant at the administrative email address identified in the WHOIS database and the email address identified on the homepage and the "contact us" page of Defendants' websites. (Decl. of Elan Raffel ¶ 8.) Plaintiff never received any response or other acknowledgment to the first or second notice letter. (Decl. of Elan Raffel ¶ 15.)

On August 21, 2013, Plaintiff filed a motion for service by publication. (Dkt. No. 3.) This Court granted Plaintiff's motion in part and denied it in part. (Dkt. No. 7.) Pursuant to the Court's August 23, 2013 Order, Plaintiff published notice of this action in The Washington Times on August 28, 2013. (Dkt. Nos. 7-8.) As set forth in the notice of action, any person claiming an interest in the Infringing Domain Names was required to file an answer or other response to the Complaint within twenty-one days from the date of the publication of the Order in The Washington Times. (Dkt. No. 8.) Defendant Domain Names did not file an answer or other response to the Complaint in response to the publication of the Order. For the reasons stated above, the undersigned finds that service of process has been accomplished in this action.

C. Grounds for Default

Plaintiff filed the Complaint on August 16, 2013. A representative for Defendants has failed to appear, answer, or file any responsive pleading in this matter. On September 20, 2013, Plaintiff filed a Request for Entry of Default against the Domain Names with the Clerk's Office. (Dkt. No. 10.) The Clerk entered default against the Domain Names on September 24, 2013. (Dkt. No. 12.) On October 3, 2013, Plaintiff filed a Motion for Entry of Default Judgment, and the Court held a hearing on the matter on October 11, 2013. (Dkt. Nos. 13-16.) When a representative for ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.