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Klumba.ua, LLC v. Klumba.com

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

June 8, 2018

KLUMBA.UA, LLC Plaintiff,
v.
KLUMBA.COM, a res Defendant.

          MEMORANDUM OPINION

          T. S. ELLIS, III UNITED STATES DISTRICT JUDGE

         At issue on cross motions for summary judgment in this unusual Anti-cybersquatting Consumer Protection Act (ACPA)[1] case is whether plaintiff, a Ukrainian LLC, possesses common law trademark rights in the mark “Klumba” in the United States. Plaintiff argues that the res in this case, the domain name klumba.com, infringes on plaintiff's common law trademark rights and thus violates the ACPA. Two of the four members of the plaintiff LLC, acting on behalf of the res, argue that because plaintiff has not used its mark in commerce in the United States, plaintiff has no common law trademark rights in the United States, and hence plaintiff cannot bring a claim under the ACPA.

         The matter has been fully briefed and argued, and is now ripe for disposition.

         I.

         Of course, the entry of summary judgment is appropriate only where there are no genuine disputes of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). And that is precisely the situation presented here. Pursuant to Local Rule 56(B) and the Rule 16(b) Scheduling Order issued in this case, a motion for summary judgment must contain a separately captioned section listing in numbered-paragraph form all material facts as to which the movant contends no genuine dispute exists. See Klumba.UA, LLC v. Klumba.com, No. 1:15-cv-701 (E.D. Va. Sept. 20, 2017) (Order). Both parties complied with Local Rule 56(B) and the Scheduling Order and the following list of undisputed material facts is based on the parties' statements of undisputed material facts and their responses.

• Plaintiff, Klumba.ua, LLC, is a Ukrainian company that operates a Ukrainian website for the sale and exchange of children's clothing and goods. Plaintiff has four members: (i) Dmitry Dubyna, (ii) Natalia Zueva, (iii) Andrey Khorsev, and (iv) Aleksey Ivankin.
• The res at issue in this case, klumba.com, is a U.S. registered domain name currently registered to Klumba.com, LTD.
• In 2008, Dubyna and Zueva created a website using the name klumba.kiev.ua to serve as a platform for parents to sell and exchange children's clothing and goods for children.
• In June 2010, Zueva registered the trademark KLUMBA[2] in the Ukraine and registered the domain name klumba.ua (the Ukrainian domain name), which was linked to the trademark.
• In July 2010, Dubyna and Zueva began placing advertisements on the klumba.ua website using Google's AdSense Program.[3] Google sent the revenue generated from the advertisements to a Ukrainian address via paper check.
• In September 2010, Zueva and Dubyna joined with Khorsev and Ivankin to create Klumba.ua, LLC, the plaintiff in this case. As part of the new LLC venture, Zueva transferred ownership of the Ukrainian domain name, klumba.ua website, and the Klumba Mark in the Ukraine to plaintiff. The four members of plaintiff shared the profits from the website, including the profits generated via Google AdSense.
• In November 2012, Dubyna purchased the domain name klumba.com from a third party vendor for $2500.
• After purchasing the klumba.com domain name, Dubyna arranged to have traffic to the klumba.com domain name redirected to the klumba.ua website. Essentially, when users typed klumba.com into a browser, they were sent to klumba.ua where they could view the website's children's clothing and goods.
• In March 2013, Ivankin and Dubyna agreed to use a California corporation owned by Ivankin and Khorsev, 908, Inc., as a depository for proceeds from the Google AdSense Program.
• Pursuant to the agreement between Ivankin and Dubyna, Google's AdSense checks were deposited to 908, Inc.'s U.S. bank account, and then 50% of the monthly proceeds were to be paid to Dubyna in the Ukraine within five days of receipt.
• In spring 2013, a dispute arose among plaintiff's members over ownership in the Ukraine of plaintiff's intellectual property.
• In September 2013, Ivankin and Khorsev changed the passwords to all plaintiff's email and user accounts, and redirected traffic from the klumba.ua domain to klubok.com, a website under their sole control.
• Ivankin and Khorsev kept all revenue generated by the klubok.com website, and stopped paying profits to Zueva and ...

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