Vizer v. vizernews.com
869 F. Supp. 2d 75
D.D.C.2012Background
- VIZER filed an in rem action under ACPA, 15 U.S.C. § 1125(d), seeking transfer of the domain name VIZERNEWS.COM.
- The domain displays the plaintiff’s name/photo and purports to provide news about him; registrant unknown; plaintiff could not identify who registered the name.
- ICANN is located in DC, and the plaintiff argued ICANN is the domain name authority that qualifies for in rem jurisdiction under § 1125(d)(2)(A).
- No defendant appeared; default was entered; plaintiff moved for default judgment.
- Court concluded it lacks in rem jurisdiction because ICANN did not register or assign the domain name, so § 1125(d)(2)(A) cannot anchor in rem jurisdiction in this district.
- Court denied the motion for default judgment and dismissed the action.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does ICANN qualify as a domain name authority under § 1125(d)(2)(A)? | Vizer contends ICANN is the domain name authority that registered or assigned the name. | ICANN is not the registrar or registry and did not register or assign the domain name. | No; ICANN is not a domain name authority that registered or assigned the domain name. |
| Can in rem jurisdiction be based on ICANN’s DC office? | ICANN’s DC office satisfies the statutory location requirement for in rem jurisdiction. | Location alone is insufficient; ICANN did not register or assign the domain name. | No; in rem jurisdiction fails because ICANN did not register or assign the domain name. |
| Did the plaintiff satisfy the in rem prerequisites by showing registration/assignment through registrars/registries? | Registrant and registration chain can be located via ICANN’s role and DC presence. | The statutory trigger requires actual registration/assignment by a registrar/registry, not ICANN's oversight. | No; ICANN’s role does not meet the registration/assignment requirement. |
Key Cases Cited
- Office Depot, Inc. v. Zuccarini, 596 F.3d 696 (9th Cir. 2010) (domain names exist in the location of the registry or registrar)
- GoPets Ltd. v. Hise, 657 F.3d 1024 (9th Cir. 2011) (initial registrar contract constitutes registration under ACPA)
- Mattel, Inc. v. Barbie-Club.com, 310 F.3d 293 (2d Cir. 2002) (in rem action anchored by the registrar/registry location)
- Porsche Cars N. Am., Inc. v. Porsche.net, 302 F.3d 248 (4th Cir. 2002) (registrar location anchors in rem jurisdiction)
- GlobalSantaFe Corp. v. Globalsantafe.com, 250 F. Supp. 2d 610 (E.D. Va. 2003) (in rem jurisdiction based on registry location)
- America Online, Inc. v. AOL.org, 259 F. Supp. 2d 449 (E.D. Va. 2003) (in rem jurisdiction proper because of registry location)