Judge says defendants are more than just a domain name registrar.
United States District Judge Cecilia Altonaga has squashed a motion to dismiss by domain name registrar Moniker in its battle with Transamerica.
In a 25 page order (pdf), Altonaga denied Moniker’s motion and renewed a debate about whether domain name registrars can be held liable for their customer’s behavior. The judge was not attempting to judge Transamerica’s allegations, but merely if the case should go forward based on the allegations. Still, her decision should be troubling to domain name registrars.
The key issue is whether a registrar is immune under the Anti-Cybersquatting Protection Act (ACPA). In its Motion to dismiss, Moniker pointed to the actual language of ACPA as well as an often cited case that confirmed that registrars aren’t liable.
But Transamerica argued that Moniker wasn’t acting just as a registrar in this case, as the judge explains:
In this case, Transamerica alleges that Oversee and the Moniker Defendants, together with the ostensible registrants – the John Doe Defendants – are the de facto registrants of the domain names in question. Transamerica claims that Moniker was not merely acting as a registrant in providing registration services to the John Doe Defendants for the infringing domain names, but instead was part of a scheme to profit from the use of the infringing names. As Transamerica points out, Moniker receives a fee each time an internet user clicks on one of the links attached to the infringing domain sites; such payment establishes at least partial ownership in the domain name. (See Hearing 63, 67). Transamerica’s Amended Complaint alleges that Moniker Online provides registration services, Moniker Privacy protects the identity of the ostensible registrant, and Oversee provides the monetization service to the domain name. (See id. at 65). Together, these three Defendants are part of a scheme by which they profit from the misuse of others’ trade and service marks. (See id.). These allegations, taken as true as they must be on a Rule 12(b)(6) motion, satisfy the requirement that Defendants be acting as more than registrars so as to strip them of immunity under the ACPA.
The judge agreed, and said that if the allegations are true, then the defendants are not merely the domain registrar for the subject domains. Transamerica argues that the defendants enable people to register the domains, hide their identity, and then use DomainSponsor to monetize the domains. (Oversee.net declined to comment for this article since this is an open legal issue.)
So what does this mean for a domain registrar that provides domain name privacy services, as most do? What does this mean for a domain registrar that puts up a placeholder parking page on an infringing domain, as most do? Or a registrar that doesn’t do a good enough job making sure customers use valid whois information?
Dude says
or a registrar who also is the registrant of infringing domains and monetizes them themselves thru parking pages either by direct registration or worse, keeping customer’s expired domains instead of releasing them all the while hiding behind private whois. *cough* enom *cough* *cough* tucows
Scott says
“As Transamerica points out, Moniker receives a fee each time an internet user clicks on one of the links attached to the infringing domain sites; such payment establishes at least partial ownership in the domain name.”
So a rev share agreement magically conveys an ownership interest?
Jay says
Honestly if the domains are true trademarks good, time to clean this industry up, too many dirty people tarnishing the whole industry, if the domain industry wants big business to notice them then let’s wash trademarks away, time for trademark typos to be flushed and generic keyword domains to thrive and ring the register, companies can sue the registrar and then the registrar can sue the domain holder and then ban them from using their registar, if we don’t police ourselves someone else will.
Windy City says
It is a step in the right direction.
registrars have been profitting and operating like fences for stolen goods with impunity for a while now. Time to see them bear at least part of the responsibilty as aiders and abetters of cybersquating.
Domain Investor says
Could it be that the judge does not understand the domain industry and he is “winging it”?
Maybe, the judge does not want to let Moniker dismissed from the case until possibly later?
If Moniker was not part of Oversee/DomainSponsor would they have been dismissed?
But, this point could effect other registrars if they profit thru PPC.
Not wanting to pick on Moniker/Oversee/DomainSponsor but it appears their legal fees are going to be higher than their advertising, trade shows and entertainment expenses.
“When it rains, it pours.”
Domain Investor says
The point about cleaning up the industry would be nice but if you notice, the typo’s and TM infringement domains are being picked up by organizations in countries that have weak legal enforcement. (for example, India, China, Russia, etc.)
Chip Meade says
So now a registrar has to determine if an owner has to police every registration and is responsible for TM violations? Outrageous!!!
Why not add Google to the lawsuit as well. They too are part owners in the domain name if they get $ from each click as well. Let’s not forget every advertisers who profits from those customer clicks. Power utilities get revenue from servers being utilized to support click traffic–Can’t leave them out. Cable Companies/ISPs make money from providing bandwith–Guilty as well.
Andrew Allemanna says
@ Chip – that’s what Vulcan Golf did…through everyone into the boat.
Stephen Douglas says
Chip wins the commentary again.
Logic. The judge isn’t ‘getting’ it. It’s like suing Ford because a bank robber/killer drove a Ford F-250 to escape. The Ford could have been bought with dirty money. Where was Ford’s “due diligance’ in limiting their liability in selling this truck to a criminal?
And you know what else? A rapist and murderer was caught, and discovered to be using duct tape bought at Home Depot. Let’s sue them.
(Not saying Moniker/Oversee is criminal, just using the logic provided by Chip, which makes sense. The judge need to rethink her logic on this one.)
SacLunch says
What is clear now is that it was a bad move to buy Moniker for $65 million. LOL. Monte must laugh himslef to sleep every night.
People are moving out of moniker in droves. That was predictable.
So much for consolidation. It looks like the pruchase of Snap was aslo a mistake. A three year old could h ave predicted Namejet was on the horizon.
And now last but not least, because they are giving out info about their publishers, the publishers a leaving.
Windy City says
Contradiction, please, Mr Douglas, Stephen
My analogy of the “fence” knowingly selling hot property with impunity is much more on target than @chips flights of fancy. That is what the judge may be seeing as well.
Time will tell.
Domain Investor says
I disagree that Moniker and Snapnames were bad purchases. At the time of purchases, they were an excellent addition to Oversee/DomainSponsor.
They were attempting to make the company totally vertical.
Which is a solid corporate strategy.
Nothing is really wrong with Moniker except the taint from Snapnames.
The collapse of the global economy (which very few knew was coming) which caused PPC to collapse is the major underlying problem of Oversee/DomainSponsor.
If the economy was thriving like in 2006/2007, most of the hatred of DS would not exist.
Andrew Allemann says
@ Domain Investor – I think much of Oversee would say those acquisitions did not work out the way they wanted. At Moniker, the big auction money disappeared shortly after the acquisition. Other than that, their business is sound. With SnapNames, they lost NetSol right away, and now the halvarez scandal. The strategy of acquiring an expired domain business and registrar were good, but they bought a registrar at the wrong time and the due diligence didn’t work on SnapNames.
Domain Investor says
There are 2 points of time being discussed above regarding the purchase of Snapnames and Moniker.
At the time of purchase and today.
I was making the point that the purchases were a good strategy at that time.
As for it being obvious that Namejet would exist today. NO, it would not.
The only reason Namejet exist today is because someone did not due a proper due diligence.
Most business people and all lawyers would know that they would need Netsol’s approval.
I assumed they did. I guess not.
Rosenblatt should send a “thank you” note every month to Oversee.
Considering everything that has happened over the past 2 yrs, I would say the 2 purchases were not a good idea.
Monday Quarterbacking is easy.
Speaking of that, I made a terrible decision by not buying gold at $ 600. 2 yrs ago. It is trading in the $ 1,125. range today.
It’s easy to Monday Quarterback.
Andrew Allemann says
@ Domain Investor – right, I understand what you’re saying. I agree on Moniker, it was a timing thing. On SnapNames it’s clearly poor due diligence.
Mike says
I’m with Jay – get rid of the entire chain of scammers that muddy up the industry. Next should be a class action suit by owners of domain names that have been improperly taken and sold at auction by registrars that have no ownership rights.
Open Domain Market says
The greedy parking companies should be held responsible. They can’t share the good part only.
lately I had 35 clicks on a genetic name and paid 0.09 cents (TOTAL) to my parking account. The CPC stands at $1.59
So who is profiting here?
Don’t hammer the small guys, get the big sharks!
Bobby Cakes says
Snap a lot Karma (The bad kind).
Next:
Oversee ex-domain tasters/subsidiaries owner of 1000’s of TM infringing marks…
Louise says
Hope Moniker takes it on the chin in behalf of small business and registrants, against the larger offenders in the placeholder parking page and privacy services businesses who scoff at government and legal that cannot nor try to keep current with technology, but abuse the system. This is good news!