United States District Court, E.D. Virginia, Alexandria Division
REPORT AND RECOMMENDATION
Theresa Carroll Buchanan, United States Magistrate Judge.
matter comes before the Court on plaintiffs' Motion for
Default Judgment. (Dkt. 11.) After a representative for
defendants failed to respond to plaintiffs' Motion or to
appear at the hearing before the undersigned Magistrate Judge
on October 28, 2016, the undersigned took plaintiff's
Motion under advisement.
NFX is a California limited liability company having its
principal place of business at 558 Hawthorne Avenue, Palo
Alto, California 94301. (Compl. ¶ 1.) Plaintiff is an
invite only guild for digital networks and marketplaces.
(Id. at ¶ 9.) Plaintiff runs a three month
program in the Bay Area twice per year which covers the
unique challenges that face digital networks and
marketplaces. (Id.) Plaintiff acquired all rights,
title, and interest to the NFX.com domain name on
November 15, 2014. (Id. at ¶ 10.) Plaintiff has
used the distinctive NFX trademark in connection with its
guild and programs since May 2013. (Id.) Between
September 2015 and May 2016, an unauthorized and unknown
third party hacked into the email account of co-founder of
NFX Guild, James Currier, and fraudulently transferred a
number of domain names, including NFX.com, to an
account at another registrar without authorization.
(Id. at ¶ 11.) Plaintiff believes defendant is
in full control over the stolen domain and any changes to the
NFX website could cause damage to NFX business. (Id.
at ¶¶ 13-14.)
is a domain name that was owned by plaintiff but "has
been stolen from plaintiff and is now in possession of
Defendant 'Zhaoyuechao.'" (Id. at
August 18, 2016, plaintiff filed this action under the
Anticybersquatting Consumer Protection Act ("ACPA")
15 U.S.C. § 1125(d) in an effort to regain control of
the domain name. Plaintiff seeks the entry of an order
directing defendant to transfer and register the
NFX.com domain name to plaintiff and directing the
domain name registry Verisign Inc. to change the registrar of
record for NFX.com to a registrar selected by
plaintiff. (Mot. Default J. 1; Dkt. 11.)
Jurisdiction and Venue
the Court can render default judgment, it must have both
subject matter and personal jurisdiction over the defaulting
Court has subject matter jurisdiction pursuant to 28 U.S.C.
§§ 1331 and 1338, which provide that district
courts shall have original jurisdiction over all civil
actions arising under the Constitution, laws, or treaties of
the United States, and over civil actions arising under any
federal law relating to patents, plant variety protection,
copyrights, and trademarks. Plaintiff's cyberpiracy claim
arises under the Anticybersquatting Consumer Protection Act,
15 U.S.C. § 1125(d). The Court has in rem
jurisdiction over defendant pursuant to 15 U.S.C. §
1125(d)(2)(A) which establishes jurisdiction over a domain
name under the ACPA in the judicial district where either the
domain name register or registry is located and Verisign,
Inc.- the registry of the defendant- is located in this
District. (Compl. ¶ 5.) Venue is proper under 15 U.S.C.
§ 1125(d)(2)(C) due to Verisign's presence in this
Service of Process
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 moved the Court to affirm service on September 1,
2016. (Dkt. 4.) Plaintiff demonstrated that notice of the
lawsuit was sent by email and U.S. mail. Subsequently,
plaintiff received a response by email from a person
"who claimed ownership of the defendant NFX.com
domain name." (Id. at ¶ 3, Ex. E.) The
Court deemed service of process was accomplished as required
by 15 U.S.C. § 1125. (Dkt. 6.)
Grounds for Default Judgment
has not answered or otherwise timely responded in this case.
Seeking to proceed in rem against defendant pursuant
to the ACPA, plaintiff filed a motion for an order affirming
service and which the Court granted on September 2, 2016.
(Dkt. 6.) The Court found plaintiff's email exchange with
defendant demonstrated actual notice so that the requirement
of service by publication may be waived. (Id.)
Defendant filed a late opposition to the motion for order
affirming service 11 days after the Court entered its order.
(Dkt. 7.) Since that response, defendant has not appeared,
answered, or otherwise filed any responsive pleadings in this
case. On September 22, 2016, the Clerk of Court entered
defendant's default. (Dkt. 9.) Plaintiff filed ...