Recently, two kids that I work with, which are talented young
actresses, have had their domains cybersquatted. I'll provide as much
information below as I can in hopes for accurate answers! :-)I will
also conceil the identity of the actors/actresses and the accused
parties whom registered their names.
I am aware that the Department of Commerce has established, with
ICANN, an arbitration process which can be used to make a complaint
against a registrant whom registered a domain name in bad faith. While
the option is appealing, it's not cheap. We would have to pay to file
for the arbitration process and we can't get the money back, and the
process usually is about $1,500.
At this cost, we might as well buy the domain from the person whom
illegally obtained it (extortion). Therefore, I'm interested in going
through the courts in hopes of recieving statutory damages from the
registrar, Pro Per.
I understand from experience that these cases are usually settled
quickly, as the domain name isn't worth fighting for by the defendent,
which is also why I'd like to file a lawsuit instead of utilizing an
Arbitration process.
As you probably know, cybersquatters "warehouse" domains by purchasing
a large collection of domain names they believe will be valuable in
the future. Each domain that I'm trying to get, for each actress,
points to a monetization service, proving that the person is profiting
from the domain name.
The parents would like me to act on their behalf on the lawsuit. I
know them personally and they wish me to be the webmaster for the
websites for each of the actresses. I would like to help and am
willing to act on their behalf, which starts with my first question:
NOTE: Case will be filed in a Federal court.
1. Would a limited Power of Attorney allow me to act on their behalf,
provided that it states that I may file and fight the lawsuit on their
behalf?
My thought is it should, although the law (Title 15 $3002 states:
"(d)(l)(A) A person shall be liable in a civil action by the owner of
a mark, including a personal name which is protected as a mark under
this section, if, without regard to the goods or services of the
parties, that person --"
Presuming that a power of attorney allows you to act on behalf of a
person legally, does this also apply to litigation?
Second Part: Remedies
If we do prevail in this case, the law states:
"In a case involving a violation of section 43(d)(1) [15 USC
1125(d)(1)], the plaintiff may elect, at any time before final
judgment is rendered by the trial court, to recover, instead of actual
damages and profits, an award of statutory damages in the amount of
not less than $ 1,000 and not more than $ 100,000 per domain name, as
the court considers just."
2. Is Actual Damages the amount of damages requested when you file the
lawsuit? It doesn't say we can request Actual damages before the final
judgement, but only statutory damages.
2a. Provided that the actual damages is the initial "Prayer of Relief"
demanded in the complaint, if I were to request damages to cover court
costs, would this be covered under "statutory damages."? If court
costs (and additional expenses used for the lawsuit) are covered under
actual damages, is it a fair and accepted practice to, within the
complaint, request actual damages at a reasonably high amount (such as
$5,000) to ensure that the court costs are covered, presuming that the
judge will drop the amount to actually cover the true demanded costs.
In our case, the child didn't suffer any damages, though they do lose
an opportunity to have a website on the domain the parents seek. I
understand you have to prove with strong figures why you should be
rewarded with actual damages, so I'd like to seek nothing more (unless
by means of a subpena I am able to determine the profits they made
with the monetization services on the website) than reimbursement of
the costs of fighting the lawsuit.
2b. Provided that reimbursement for court costs must fit under
statutory damages, I understand that the Supreme Court ruled that the
Seventh Amendment of the Constitution mandates that statutory damages
be a jury issue if one of the parties so requests. Provided that the
case is a bench trial as opposed to a jury, will I risk losing
statutory damages?
3. If there is a risk in losing statotory damages, should I demand a jury?
Part 3: Subpena before filing a lawsuit.
Based on the reading material I have, it discusses in depth the
discovery phase of a trial, which begins after the case is filed.
However, in the case of one of the registrants, they didn't provide
sufficient information to make it possible to file a summons to them.
4. How do you request a subpena for contact information, when there is
no case filed, therefore no discovery process?
5. Under section 3004, it states that:
"(II) A domain name registrar, domain name registry, or other domain
name registration authority described in subclause (I) may be subject
to injunctive relief only if such registrar, registry, or other
registration authority has --
(aa) not expeditiously deposited with a court, in which an action has
been filed regarding the disposition of the domain name, documents
sufficient for the court to establish the court's control and
authority regarding the disposition of the registration and use of the
domain name;"
When the lawsuit is filed, is it the responsibility of the person
filing the suit to notify the registrar company that they need to
deposit documents to the court, or is this a process which the courts
are supposed to follow as standard procedure when this type of case is
filed? Do I need to request a motion to the courts to inform the
registrar that these documents need to be filed?
In Personam jurisdiction:
Each person whom registered the domain name lives on the west coast. I
live on the east coast of the United States. I understand that normal
court cases typically require the defendent to be within the state
(even Federal cases) for the summons to stand.
I discovered this statute:
"(a) Jurisdiction; service
The several courts vested with jurisdiction of civil actions arising
under this chapter shall have power to grant injunctions, according to
the principles of equity and upon such terms as the court may deem
reasonable, to prevent the violation of any right of the registrant of
a mark registered in the Patent and Trademark Office or to prevent a
violation under subsection (a), (c), or (d) of section 1125 of this
title. Any such injunction may include a provision directing the
defendant to file with the court and serve on the plaintiff within
thirty days after the service on the defendant of such injunction, or
such extended period as the court may direct, a report in writing
under oath setting forth in detail the manner and form in which the
defendant has complied with the injunction. Any such injunction
granted upon hearing, after notice to the defendant, by any district
court of the United States, may be served on the parties against whom
such injunction is granted anywhere in the United States where they
may be found, and shall be operative and may be enforced by
proceedings to punish for contempt, or otherwise, by the court by
which such injunction was granted, or by any other United States
district court in whose jurisdiction the defendant may be found."
Does this mean that if the injunction is granted (summons issued) from
the federal court in my state, that the defendent, provided he is in
the United States, is under the court's jurisdiction and must answer
the summons?
If this still empowers the courts to decide this, do you think that an
argument that since the website will be maintained by me, and I am
affected by the illegal registration of the domain name, will allow
the summons to stand?
I understand that the answer you provide for most of these questions
are only educated guesses.
Thank you!
Thank you! That is all of the questions I have at the moment. |
