Preemptive case against New Jersey man can’t go forward in Washington, judge rules.
DomainTools’ preemptive lawsuit against Russ Smith has been dismissed (pdf) with prejudice for lack of personal jurisdiction and improper venue.
Russ Smith had threatened to sue DomainTools for copyright infringement and try to get its trademark canceled. Among Smith’s complaints: DomainTools’ archival of snapshots of his web site home pages were copyright violations.
Instead of waiting for Smith to file his suit, DomainTools filed a suit against him in its home state of Washington. The suit asked the court to rule that DomainTools wasn’t violating copyright, among other requests.
Smith asked the court to dismiss the case because he believed Washington was an improper venue.
The company provided a handful of reasons why it felt Washington was an appropriate place to file the lawsuit. One of the reasons was a forum selection clause in the terms of service on DomainTools web site. The company claimed Smith was subject to the terms when he submitted his threats via the web site’s contact form.
The company’s claims failed to impress judge Marsha Pechman. She dismissed the case with prejudice.
help says
The root of the entire dispute was the hyphenated version of their domain name. instead of spending 5 minutes to try to resolve that issue they went ahead with the trademark application anyway. Once that happened it came to light that they did not permission to package and resell the whois data and all the other issues.
The people involved with Domain Tools are all major domainers and the lawyers involved are the ones who complain endlessly about overreaching complaints. However, when faced with a similar situation they act the same way.
Actually the case is not yet completely dismissed. The court has said Domain Tools still has to answer the request for sanctions involving blog posts shortly after the case was filed that included statements like:
“… So, file an action seeking damages, serve it, claim damages not to exceed $10,000 and wait for a default. Then try to enforce the default. The reason for the damage limit is to force them into a situation of spending more than $10,000 to defend in AZ or default. In cases like these it is easy and the likelihood of a counter-claim is very low. In others this trick could backfire … ” It also seems Domain Tools has discrepancies in describing their corporate structure as there are 3 different stories over who their parent company is.
Mr. Berryhill sometimes uses the term “ambulance chasers.” Not sure if he meant it to apply to situations like this.
help says
BTW, Domain Name Wire reports the board at Domain tools is Xavier Buck, Slavik Viner, Richard Lau, Paul Keating, Ray Bero, Kevin Vo, and Ammar Kubba. Tim Chen is the CEO and John Berryhill is the attorney who filed the Domain Tools trademark and Dereck Newman is the lawyer who filed the suit.
Ron says
Isn’t the owners of domaintools major domainers, who probably have some serious issues on some of the domains they own themselves, black eye on this one, not cool guys.