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Twin Disc, Inc. v. Twindisc.cc

United States District Court, E.D. Virginia, Alexandria Division

March 21, 2014

TWIN DISC, INCORPORATED, Plaintiff,
v.
TWINDISC.CC, et al., Defendants.

REPORT AND RECOMMENDATION

IVAN D. DAVIS, Magistrate Judge.

This matter is before the Court on Plaintiff's Motion for Entry of Default Judgment against Defendants and ("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 January 17, 2014, the undersigned Magistrate Judge took this matter under advisement to issue this Report and Recommendation. Upon consideration of the Complaint, the Motion for Entry of 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

Twin Disc. Incorporated ("Plaintiff') filed a Complaint on August 21, 2013, seeking relief under the Anti-Cybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d) ("ACPA"), based on Quanzhou Twindisc Trade Development Co., Ltd. ("Quanzhou") and Twin-Disc tliK) International Gongyinglian Development Co., Limited ("HK International") (collectively "Registrants") bad-faith use of the domain names and, respectively.[1] (Compl. ¶¶ 2-3.) The ACPA grants trademark owners a remedy against "cybersquatting." Cybersquatting occurs when a party registers or uses a trademark owner's mark as a domain name with the bad faith intent of profiting from the sale or use of the domain name.[2] Plaintiff has moved for default judgment against Defendant Domain Names and requests that this Court order Verisign, Inc. ("Verisign") to transfer the registration of and.[3] (Compl. Prayer For Relief ¶¶ A-D.)

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 Defendant Domain Names are registered, Verisign, is located within this district in Reston, Virginia. (Compl. ¶¶ 9-10, 31-38.) Similarly, venue is appropriate in this District under 28 U.S.C. § 1391(b)(2), 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. ¶ 13.)

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 filed an in rein civil action against Defendant Domain Names because it was unable to obtain personal jurisdiction over the Registrants due to their location outside of the United States. (Compl. ¶ 9.) In accordance with 15 U.S.C. §1125(d)(2)(A)(ii)(II)(aa), on August 23, 2013, Plaintiff sent notice of the alleged violation and intent to proceed under the ACPA, along with a copy of the Complaint, to the registrant of each domain name at the postal and e-mail addresses provided by the registrant to the registrar. (Dkt. No. 5.)

Subsequently, on November 6, 2013, in accordance with 15 U.S.C. § 1125(d)(2)(A)(ii)(II)(bb), Plaintiff filed a motion seeking leave to publish notice of the action in The Washington Post. (Dkt. No. 4-5.) This Court granted Plaintiff's motion on November 7, 2013, and on November 24, 2013, Plaintiff published notice of this Court's Order in The Washington Post. (Dkt. Nos. 7, 9.) 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 Post. (Dkt. No. 9.) 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 21, 2013. A representative for Defendants has failed to appear, answer, or file any responsive pleading in this matter. On December 10, 2013, Plaintiff filed a Request for Entry of Default against Defendant Domain Names with the Clerk's Office. (Dkt. No. 10.) The Clerk entered default against Defendant Domain Names on December 13, 2013. (Dkt. No. 11.) On January 7, 2014, Plaintiff filed a Motion for Entry of Default Judgment, and the Court held a hearing on the matter on January 17, 2014. (Dkt. Nos. 13-15, 18.) When a representative for ...


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