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Wagner v.

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

August 15, 2016

LINDA L, WAGNER, Plaintiff,
LINDAWAGNER.COM, an Internet domain name, Defendant.


          Leonie M. Brinkema United States District Judge

         Before the Court are defendant <>'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 <> 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 <> in rem, alleging one count under the ACPA. Compl. [Dkt. No. 1].

         In the 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.

         In its 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 <> 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").[1] 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.


         eWeb is 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).

         Linda 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).[3] There is no evidence in this record of anyone else contacting eWeb about purchasing the domain name.

         On May 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.

         On 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 responded stating:

Thanks for your email. Linda Wagner is a very common name, with over 1, 400 listed in the 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.

         It is 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.


         Defendant 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 '' 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.

         A. Standard of Review

         Summary 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).

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Furthermore, "[t]he mere existence of a scintilla of evidence in support of the [opposing party&#39;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&#39;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 ...

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