United States District Court, E.D. Virginia, Alexandria Division
M. Brinkema United States District Judge
the Court are defendant <lindawagner.com>'s
("defendant" or "the domain name") Motion
for Judgment on the Pleadings or in the Alternative Motion
for Summary Judgment [Dkt. No. 36] and plaintiff Linda L.
Wagner's ("plaintiff" or "Wagner")
Cross-Motion for Summary Judgment [Dkt. No. 41] ("Cross
Motion"). On October 16, 2016, proceeding pro se,
plaintiff first instituted a civil action naming as
defendants <lindawagner.com> and "respondent"
eWeb Development ("eWeb"), a Canadian information
technology company, alleging violations of the
Anticybersquatting Consumer Protection Act, 15 U.S.C. §
1125(d) ("ACPA"). On December 21, 2015, upon the
motion of defendants, the Court dismissed that complaint
without prejudice on the grounds that plaintiff failed to
property complete service as mandated by the ACPA. On January
14, 2016, Wagner filed a substantially similar civil action,
this time solely against <lindawagner.com> in
rem, alleging one count under the ACPA. Compl. [Dkt. No.
pending Complaint, plaintiff alleges that she is a real
estate agent in Tennessee who uses her name, Linda Wagner, to
operate her business, and that she owned the domain name from
2003 to 2010, when she allowed the registration to lapse.
Compl. 2-3. She alleges that she first contacted eWeb in
December 2012 and offered to purchase the domain name. Compl.
5. When the parties could not come to an agreement regarding
an appropriate price, Wagner made no further attempt to
obtain the domain name until May 2015. Id. The
Complaint alleges that in May 2015, plaintiff accessed the
domain name in an attempt to re-register it and the domain
name directed her to a page that provided a means to contact
the current registrant if the person accessing the page was
interested in purchasing the domain name or having the
registrant develop a website at that domam name. Id.
Wagner filled out the form to submit an inquiry about
purchasing the domain name, but the parties were unable to
agree on a price after Wagner stated the maximum she would be
willing to pay would be $1000 and then lowered that amount to
$500. Id. at 7.
motion, defendant argues that Wagner cannot satisfy any of
the requisite elements of the ACPA. Br. in Supp. of Def's
Mot. for J. on the Pleadings or m the Alt. Mot. for Summ. J.
1 [Dkt. No. 37] ("Def's Br."). In Wagner's
combination cross-motion and opposition, she contends that
eWeb has no lawful claim to ownership of
<lindawagner.com> and acted in bad faith when
registering the domain name, which entitles her to ownership
of the domain name. Pl.'s Opp'n to Def's Mot. for
Summ. J. and Cross-Mot. for Summ. J. 5-6 [Dkt. No. 41]
("Wagner Opp'n"). The parties apparently agree that
the undisputed factual record "is ripe for disposition
on the question of whether eWeb Development acted with a
specific bad faith intent to profit from [p]laintiff s
alleged mark through the registration and use of
LINDAWAGNER.COM." Def's Reply 2.
Accordingly, for the reasons that follow, defendant's
motion will be granted and plaintiffs motion will be denied.
a Canadian corporation engaged in the business of registering
domain names that contain generic terms, Def.'s Br., Ex.
1 (Phu Decl. 1), ¶ 6, and then offering to sell those
domain names alone or develop websites for consumers using
the domain names. Id. ¶ 11. Specifically, eWeb
describes its business model as including "provid[ing]
assistance in the registration, renewal, and development of
domain names containing generic personal names and... buying
domain names with the intent to help develop the domain name
into a website and brand promotion tool." Def.'s
Opp'n 10-11 (citing Phu Decl. 1 ¶¶ 3, 5, 7).
Wagner is an independent real estate agent based in Tennessee
who registered the domain name in 2003 but allowed the
registration to lapse on November 2, 2010. Def.'s Br. 2;
Def.'s Opp'n 6. eWeb purchased the domain name on
November 9, 2010. Def.'s Br. 2. There is no indication in
this record that eWeb had any specific knowledge of Wagner or
her business when it purchased the domain name. Id.
eWeb never approached Wagner to offer to sell the domain name
to her, but on approximately December 12, 2012, Wagner
contacted eWeb in an attempt to purchase the domain name and
subsequently contacted eWeb once more after it rejected her
offer. Id. at 3 (citing Compl. 5). There is no
evidence in this record of anyone else contacting eWeb about
purchasing the domain name.
11, 2015, Wagner again contacted eWeb by using a form on a
webpage advertising eWeb's services that linked from the
domain name. Def.'s Br. 3. Wagner requested a price
quotation to purchase the domain name, explaining "This
was my web address sometime back. I am just a small time
realtor with a little business." Def.'s Br., Ex. 3
(May 11 Email). The parties were unable to agree upon a price
after exchanging a few emails. Def.'s Br., Exs. 4, 5, 6.
August 31, 2015, Wagner again emailed eWeb demanding an
immediate transfer of the domain name and threatening to file
suit, asserting "It is my belief that you deliberately
committed the act of cybersquatting by registering the domain
in your companies [sic] name. You are not using the domain
other than purely for the intent of making a profit off
me." Def.'s Br., Ex. 8 (Wagner Aug. 31 Email). eWeb
Thanks for your email. Linda Wagner is a very common name,
with over 1, 400 listed in the whitepages.com for
the U.S. alone ... With a common name like this, no one can
claim exclusive use of such a name. Being in Canada, we
searched the Canadian trademark database and we couldn't
find any trademarks registered for Linda Wagner. We
couldn't find one in the U.S. either. If our search
wasn't thorough enough and you have a registered
trademark, you're welcome to have your lawyer send us
your trademark registration information and we'll have
our lawyer review it and respond fiirther. Regardless, we
have not used this domain in any way that conflicts with
anyone's trademarks. The .com domain is one of many
options for this name. With himdreds of new domain extensions
introduced, we're sure you can find many suitable domains
available for you to use. Good luck with your domain search.
Def.'s Ex. 9 (eWeb Aug. 31 Email). On September 11, 2015,
plaintiff responded to that email with a message with the
subject line "2nd NOTICE TO RELEASE DOMAIN NAME
'LINDAWAGNER.COM'" asserting that eWeb
had "deliberately hijack[ed] a domain name" and
that "[i]t is considered extortion [for] [eWeb to]
demand monies to release the domain to the original or not
original registrant." Id.
undisputed that Wagner does not own a registered mark, Compl.
4, and that there are more than 1, 000 individuals named
Linda Wagner throughout the United States, located in all
fifty states, and several Linda Wagners in the real estate
industry. Def.'s Br., Exs. 10, 11.
primarily argues that summary judgment is warranted because
the undisputed facts fail to show that eWeb acted with the
requisite bad faith intent to profit fi:om Wagner's
alleged mark. In response and in her Cross-Motion for Summary
Judgment, Wagner asserts several reasons why she believes
eWeb acted with bad faith intent to profit fi-om the
registration of the domain name; however, Wagner does not
make any showing as to any of the other elements of an ACPA
claim aside firom the conclusory assertion that she has
established secondary meaning so as to justify common law
trademark protection because she has "showed the court
her use of the domain 'lindawagner.com' as
her trademark for seven years." Cross-Motion 3.
Defendant contends in response that there are several factual
disputes that require the completion of discovery as to
whether Wagner had a protected mark, which preclude summary
judgment in plaintiffs favor; however, defendant asserts that
the record has been fully developed with regard to the
question of bad faith intent and that the undisputed facts
preclude any fmding that eWeb acted with bad faith intent.
Standard of Review
judgment is merited where the record demonstrates that
**there is no genuine dispute as to any material fact and
that the moving party is entitled to judgment as a matter of
law." Fed.R.Civ.P. 56(a). When a court is presented with
cross-motions for summary judgment, it must consider each
motion "separately on its own merits to determine
whether either of the parties deserves judgment as a matter
of law." Rossignol v. Voorhaar, 316 F.3d 516,
523 (4th Cir. 2003) (quoting Philip Morris Inc. v.
Harshbargen 122 F.3d 58, 62 n.4 (1st Cir. 1997))
(internal quotation marks omitted). Therefore, with respect
to each motion, the court must "resolve all factual
disputes and any competing, rational inferences in the light
most favorable to the party opposing that motion, "
Id. (quoting Wightman v. Springfield Terminal
Rv. Co., 100 F.3d 228, 230 (1st Cir. 1996)) (internal
quotation marks omitted); however, all inferences drawn in
the nonmovant's favor must "fall within the range of
reasonable probability and not be so tenuous as to amount to
speculation or conjecture." Thompson Everett, Inc.
v. Nat'l Cable Adver.. L.P.. 57 F, 3d 1317, 1323
(4th Cir. 1995).
"[t]he mere existence of a scintilla of evidence in
support of the [opposing party's] position will be
insufficient" to merit summary judgment. Anderson v.
Liberty Lobby, Inc..477 U.S. 242, 252 (1986); see also
Am. Arms Int'l v. Herbert,563 F.3d 78, 82 (4th
Cir. 2009) ("[A] nonmovant caimot defeat summary
judgment with merely a scintilla of evidence."). Rather,
a genuine issue of material fact exists only "if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party, " Anderson,
477 U.S. at 248, and any existing factual dispute must be
both "material" and "genuine, " such that
it has the ...