United States District Court, E.D. Virginia, Alexandria Division
REPORT & RECOMMENDATION
MICHAEL S. NACHMANOFF UNITED STATES MAGISTRATE JUDGE
matter comes before the Court on plaintiff Central Source
LLC's (“plaintiff” or “Central
Source”) Motion for Default Judgment (Dkt. No.
Having reviewed the record and the pleadings, the undersigned
Magistrate Judge recommends entering default judgment in
plaintiff's favor for the reasons that follow.
October 19, 2018, plaintiff brought an in rem action
against the following defendants: annalcreditreport.co;
and wwwwannualcreditreport.com (collectively,
“Defendant Domain Names”) (Dkt. No. 1).
Subsequently, plaintiff filed an Amended Complaint on
February 5, 2019 removing defendant annualcrediitreport.com
and adding defendants annualcreditreporeport.com;
annualcreditreportg.com; and getfreeannualcreditreport.com
(Dkt. No. 4).
Amended Complaint alleges two counts against Defendant Domain
Names: Count One alleges cybersquatting under the Federal
Anti-Cybersquatting Consumer Protection Act, 15 U.S.C. §
1125(d) (the “ACPA”); and Count Two alleges
trademark infringement under the Lanham Act, 15 U.S.C. §
1114(1)(a) (the “Lanham Act”). Amend. Compl.
(Dkt. No. 4) ¶ 1. Plaintiff seeks a judgment entered in
its favor on Counts One and Two; an order directing Defendant
Domain Names be transferred to plaintiff through transfer by
the relevant registries and/or registrars of Defendant Domain
Names to plaintiff's domain name registrar of choice and
by such registrar's change of registrant to plaintiff; an
order directing that any other domain names registered by the
registrant of Defendant Domain Names that resemble or include
plaintiff's trademark be transferred to plaintiff; and an
award of reasonable attorney's fees and costs incurred
pursuant to 15 U.S.C. § 1117(a), among any other relief
as the court may deem just and proper. Id. at pg.
13, 2019, plaintiff moved for an entry of default judgment
against Defendant Domain Names (Dkt. No. 10), supported by a
declaration by Ari S. Meltzer stating that plaintiff
effectively served process on Defendant Domain Names and that
they failed to answer or otherwise respond to the Amended
Complaint (Dkt. No. 11). The Clerk of Court entered default
against Defendant Domain Names on May 14, 2019 (Dkt. No. 12).
Pursuant to a Court Order (Dkt. No. 13), plaintiff filed a
motion for a default judgment (Dkt. No. 14), along with a
memorandum in support (Dkt. No. 15) and a notice of hearing
for July 19, 2019 (Dkt. No. 16). The Court reset the hearing
on plaintiff's motion to July 26, 2019. On that date,
counsel for plaintiff appeared at the hearing on the motion
for default judgment before the undersigned Magistrate Judge
and no claimant appeared on behalf of Defendant Domain Names
(Dkt. No. 28).
following facts are established by plaintiff's Amended
Complaint (Dkt. No. 4) as well as its memorandum in support
of its motion for default judgment (Dkt. No. 15).
is a corporation organized and existing under Delaware law
with a principal place of business in Atlanta, Georgia.
Amend. Compl. (Dkt. No. 4) ¶ 5. Based on records in the
whois database of domain name registrations, the registrants
for Defendant Domain Names are either a privacy service-which
replaces a domain name owner's contact information with
names such as “Private Registrant, ”
“Registration Private, ” or “Domain
Administrator” to conceal the identity of the true
owner of the domain names-or a fictitious person or entity.
Id. at ¶¶ 6-11. Defendant Domain Names
were registered by the same person or entity and are under
control of that same person or entity. Id. at ¶
provides consumers with a secure means to request and obtain
a free credit report once every twelve months in accordance
with the Fair and Accurate Credit Transactions Act, 15 U.S.C.
§ 1681j. Id. at ¶ 18. Plaintiff provides
this service through a website and service available at
<www.AnnualCreditReport.com>, which is the only site
authorized by the United States Federal Trade Commission
(“FTC”) and the Consumer Financial Bureau
(“CFB”) to provide such service. Id. at
¶ 19. Plaintiff registered the
“AnnualCreditReport.com” domain name on June 25,
2004, id. at
20, and further registered over 600 additional related domain
names that contain typographical errors of AnnualCreditReport
as a defensive measure to limit potential cybersquatting of
related domain name registrations, id. at ¶ 21.
began promoting the AnnualCreditReport mark in November 2004.
Id. at ¶ 22. Since opening for public use,
AnnualCreditReport has received more than 675, 000, 000
visits to <www.AnnualCreditReport.com> through July
2017. Id. at ¶ 25. The FTC also engaged in a
“wide ranging public service campaign” promoting
the mark, which resulted in substantial media coverage.
Id. at ¶ 26. Various federal statutes and
regulations also required third parties that advertise or
offer a free credit report to identify
<www.AnnualCreditReport.com>. Id. at
¶¶ 28-31. See also 15 U.S.C. §
1681j(g); 12 C.F.R. § 1022.138(b).
promotions and mandatory disclosures, the AnnualCreditReport
mark has become famous and/or distinctive throughout the
United States and consumers associate the mark with
plaintiff's services. Id. at ¶ 32. On June
5, 2012, the AnnualCreditReport mark was registered with the
U.S. Patent and Trademark Office (“USPTO”) under
registration number 4152650. Id. at ¶ 35;
see also Compl., Ex. 7 (Dkt. No. 4-7) 2. This
registration serves as conclusive evidence of the validity of
the mark, plaintiff's ownership of the mark, and
plaintiff's exclusive right to use the mark in U.S.
commerce. Amend. Compl. (Dkt. No. 22) ¶ 36.
Domain Names represent typographical errors of the
AnnualCreditReport mark, also known as “typosquatting,
” which “harms consumers by causing confusion
with the legitimate sites being sought by the consumers and
very often results in consumers' computers being infected
with computer viruses, ‘bloatware' or other
unwanted software, consumer's personal information being
collected and misused, and/or consumers being presented with
an endless stream of unwanted advertisements.”
Id. at ¶ 3. Accordingly, plaintiff alleges that
Defendant Domain Names were registered for the purpose of
obtaining internet visitors when such visitors make a
typographical error when attempting to reach
<www.AnnualCreditReport.com>. Id. at ¶
39. Defendant Domain Names receive compensation for
“pay-per-click advertisements”-when consumers
click on a link provided by a Defendant Domain Name to a
third-party website-and when consumers are automatically
redirected to third-party websites for sale solicitations.
Id. at ¶¶ 41-42.
plaintiff contends that Defendant Domain Names were
registered with the intent to divert consumers away from
plaintiff's online location at
<www.AnnualCreditReport.com> for commercial gain by
creating a likelihood of confusion as to the source,
sponsorship, affiliation, or endorsement of Defendant Domain
Names and the sites displayed through the use of Defendant
Domain Names, id. at ¶ 47, which use does not
comply with the mandatory disclosure provisions set forth in
15 U.S.C. § 1681j(g) and 12 C.F.R. § 1022.138,
id. at ¶ 48. Due to Defendant Domain Names'
actions, plaintiff alleges that it suffers great and
irreparable harm to the value and goodwill associated with
the AnnualCreditReport mark. Id. at ¶¶ 58,
Jurisdiction, Venue, and Service of Process
must have both subject matter and personal or in rem
jurisdiction over a defaulting defendant before it can render
a default judgment. The court has original subject matter
jurisdiction under 15 U.S.C. § 1121(a) and 28 U.S.C.
§§ 1331, 1338(a) because this action arises under
federal law, the ACPA and the Lanham Act. There is in
rem jurisdiction over Defendant Domain Names pursuant to
15 U.S.C. § 1225(d)(2)(A) because Defendant Domain Names
have violated plaintiff's trademark, id. at
§ 1225(d)(2)(A)(i), and plaintiff cannot obtain personal
jurisdiction of Defendant Domain Names because their listed
registrant is “either a privacy service or a fictitious
person/entity, ” id. at §
1225(d)(2)(A)(ii)(I). Venue is likewise proper pursuant to 15
U.S.C. § 1125(d)(2)(C) because the registry for
Defendant Domain Names, VeriSign, Inc.
(“VeriSign”), is located within this court's
ACPA provides that for in rem actions, service of