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European Performance Engineering, Inc. v. Doe

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

September 9, 2016

EUROPEAN PERFORMANCE ENGINEERING, INC., Plaintiff,
v.
JOHN DOE, et al., Defendants.

          European Performance Engineering, Inc., Plaintiff, represented by Jonathan Donald Westreich.

          REPORT & RECOMMENDATIONS

          MICHAEL S. NACHMANOFF, Magistrate Judge.

         This matter is before the Court on Plaintiff European Performance Engineering, Inc.'s Motion for Default Judgment (ECF No. 17), pursuant to which Plaintiff seeks an order transferring to Plaintiff control of the domain name EPE.COM ("Defendant Domain Name"). Having reviewed the record, the undersigned makes the following findings and recommends entering default judgment in Plaintiff's favor.

         I. Background

         Plaintiff European Performance Engineering, Inc. is an automobile repair facility that purchased the domain name EPE.COM on October 28, 1995. Compl. ¶¶ 13, 16 (ECF No. 1). Plaintiff entered into a contract with Network Solutions, LLC to register the domain name through October 27, 2018. Id. ¶¶ 2, 20, 32, 45. Plaintiff claims it has used its business name in connection with the domain name, EPE.COM, for thirty years. Id. ¶ 16. As a result, Plaintiff claims to have developed "substantial goodwill associated with the subject domain name." Id. Plaintiff has used the domain name in commerce, gaining common law rights in the subject mark, EPE.COM. Id. ¶ 18.

         Plaintiff alleges that on or before March 21, 2016, Defendant John Doe gained unauthorized access to Plaintiff's domain management account at Network Solutions and changed the registrant name without authorization. Id. ¶¶ 4, 14, 22. On or about June 30, 2016, Defendant Doe changed the registrant name to Oleksandr Shapoval and then to Wang Zheng, which Plaintiff believes are Defendant's aliases. Id. Defendant Doe also provided "materially false and misleading contact information" when registering the domain name. Id. ¶ 29.

         Through unauthorized use of the domain name, Defendant Doe has knowingly gained control of Plaintiff's emails with customers with the intent to redirect Plaintiff's customers to Defendant Doe, resell the domain name for financial gain, and damage Plaintiff's business reputation and good will. Id. ¶¶ 17, 23-27.

         On July 29, 2016, Plaintiff filed suit under the Anti-cybersquatting Consumer Protection Act ("ACPA") in an effort to regain control of the domain name.[1] Id. at 6-8. Plaintiff moved for a preliminary injunction, which this Court granted. See Order (ECF No. 12); see also Pl.'s Mot. for a Prelim. Inj. (ECF No. 6); Mem. of Law in Supp. (ECF No. 8). Plaintiff now seeks an injunction "and other equitable relief." Compl. ¶ 2.

         Seeking to proceed in rem against the Defendant Domain Name pursuant to the ACPA, Plaintiff obtained an order from the Court (ECF No. 9) granting Plaintiff leave to serve process by email and publication. Plaintiff certified its compliance with that order on August 11, 2016.[2] See Notice (ECF No. 11); see also Mot. for Leave to Serve Process by Email & Publication (ECF No. 2); Mem. of Law in Supp. of Mot. (ECF No. 4).

         When no interested party responded, the Clerk of the Court entered default as to EPE.COM. See Clerk's Entry of Default (ECF No. 16). Plaintiff filed the instant Motion on August 30, 2016. The defendant did not appear at the September 9, 2016 hearing held on the Motion, and the undersigned took the matter under advisement.

         II. Jurisdiction and Venue

         The Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 and 1338(a) because it involves a federal question arising under the ACPA, 15 U.S.C. § 1125(d). The Court has in rem jurisdiction over the Defendant Domain Name pursuant to 15 U.S.C. § 1125(d)(2)(A) because Plaintiff alleges infringement of its trademark rights, Plaintiff has been unable to determine the identity of the Defendant Domain Name's registrant(s), and Verisign- the registry of the Defendant Domain Name-is located in this District. See Compl. ¶ 5. Venue is proper under 15 U.S.C. § 1125(d)(2)(C) due to Verisign's presence in this District.

         III. Service of Process

         A plaintiff bringing an in rem action under the ACPA may serve process by 1) sending notice of the lawsuit to the listed email and physical addresses of the domain name registrant, and 2) publishing notice of the action as directed by the court. 15 U.S.C. § 1125(d)(2)(A)(ii). Plaintiff obtained leave of the Court to proceed in this manner, see Order (ECF No. 9), and has certified that it complied with these procedural requirements. See Notice; see also Mot. for Leave to Serve Process by Email and Publication (ECF No. 2); Mem. of Law in Supp. ...


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