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DomainTools appeals injunction decision in .NZ case

by — Policy & Law 3 Comments

Cyber security service wants injunction thrown out.

Whois data and security service DomainTools has appealed a preliminary injunction brought against it by .NZ registry Domain Name Commission Limited (DNCL).

DNCL sued DomainTools in June 2018 over DomainTools’ collection and publication of .NZ Whois data. It argued that DomainTools’ actions violated DNCL’s terms of service, which are provided with each Port 43 Whois query result.

A Federal District judge granted an injunction that ordered DomainTools to not collect any more .NZ Whois records and to remove any previously published records while the lawsuit proceeded.

DomainTools appealed the decision to the Ninth Circuit Court of Appeals.

In its opening brief (pdf), DomainTools argues that DNCL’s terms of service were not binding on DomainTools because of how the terms of service were published. Including the terms with each Whois result is considered a “browsewrap” agreement; the other party does not check a box or make any other affirmative action to agree to the terms.

DomainTools notes that “The lower court acknowledged that so-called “browsewrap” agreements like DNCL’s terms of use are not enforceable unless “the user has actual or constructive knowledge of the [terms of use].” In the court’s view, however, DomainTools’ repeat queries established sufficient knowledge.”

The company says that the lower court’s view should not apply because all of DomainTools’ Whois queries were “conducted by an automated program on a dedicated computer-to-computer channel acting without human intervention.”

It also says that the terms were written in a way that didn’t suggest that DomainTools’ use of the data violated the terms.

DomainTools wants the court to weigh the negative impact to DomainTools’ customers against the impact on .NZ registrants whose information is published.

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AddictingGames.com sues Addicting.com, claiming cybersquatting

by — Policy & Law 13 Comments

Addicting.com parked page filled with links for games.

Addicting Games screenshot

The popular online game site Addicting Games filed an in rem lawsuit (pdf) yesterday against the domain name Addicting.com, claiming that the owner of the domain is cybersquatting. Addicting Games is owned by Bill Karamouzis, who was on DNW Podcast #178.

The lawsuit points out that almost all the pay-per-click links on Addicting.com, which is parked at Uniregistry, are related to games. The first link is “Addicting Games”.

One big question is when the current owner of the domain acquired it.

The lawsuit alleges:

On February 21, 2018, the registrant of the domain Addicting.com was changed from Domain Hostmaster, Customer ID : 85528474484681 to Savvy Investments, LLC Privacy ID #735277, and the registrar was changed from Fabulous.com Pty Ltd to Sea Wash, LLC.

Sea Wasp, LLC is just the business name for Fabulous, so the registrar didn’t actually change.

The Whois record is private going back to the end of 2011.

From at least as early as 2004 until the record was private, the domain was owned by a registrant in Vietnam. The domain has been parked with Uniregistry since at least 2013. So I suspect that there was not an ownership change this year, although it’s possible.

There’s a chance that the domain is currently owned by the same entity that owned it since at least 2004, which is before Addicting Games existed.

That said, the links on the parked page (which have been there since at least 2013) are definitely problematic and could present a trademark problem for the domain owner.

It will be interesting to see if the owner of Addicting.com defends the domain name in court.

David Weslow of Wiley Rein LLP is representing Addicting Games.

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Stanley Pace challenges another UDRP decision in court

by — Policy & Law 5 Comments

Lawsuit filed to halt transfer of Lascal.com.

Stanley Pace, who has a history of UDRP cases as well as challenging adverse decisions in court, has filed a lawsuit (pdf) in an effort to overturn a decision against his domain name Lascal.com.

Joran Lundh, who is associated with the stroller and kids safety business Lascal, filed a complaint against Lascal.com with World Intellectual Property Organization (WIPO) in August.

Pace acquired the domain name in 2016 when it expired. He argued that he registered it because Lascal is a surname and a term to described planned roads between Las Vegas and California.

The single-member WIPO panel agreed with Lundh that Pace was cybersquatting with his registration of lascal.com and ordered the domain name to be transferred.

In response, Pace filed a lawsuit arguing this is a case of reverse domain name hijacking. He is asking a court for declaratory relief and attorney’s fees.

Pace recently moved from Texas to Washington and hired Seattle-based lawyer Derek Newman to represent him in the lawsuit. (Steven Rinehart represented Pace in the UDRP.)

Lundh, a Swedish citizen located in Hong Kong, submitted to jurisdiction in Pace’s location when he filed the UDRP.

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Lawsuit filed to recover EQN.com domain name

by — Policy & Law 0 Comments

Domain was stolen in 2016, according to lawsuit.

A California company has filed a lawsuit (pdf) to recover the domain name EQN.com, which it says was stolen from its Enom account.

Blackshore Properties, Inc. of San Marino, California acquired EQN.com in a NameJet auction in 2011 for $4,950.

According to DomainTools historical Whois records, the domain name was transferred to a Chinese registrant at domain registrar 22.cn between May 5, 2016 and September 23, 2016. The lawsuit alleges that this transfer was theft.

The suit was filed in U.S. District Court in Virginia where .com registry Verisign is located. Assuming no one shows up to defend the in rem lawsuit, the just will likely enter an order of default judgment and order Verisign to transfer the domain name.

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XYZ files renewed motion for fees against Verisign

by — Policy & Law 0 Comments

District Court will reconsider request for Verisign to pay legal fees stemming from lawsuit.

After winning its second Appeals Court case against Verisign, top level domain name registry .XYZ is renewing its request (pdf) for Verisign to pay attorney fees.

Here’s the background:

Verisign (NASDAQ:VRSN) sued XYZ for false advertising. A federal district court granted summary judgment in XYZ’s favor, and XYZ asked the court to award it legal fees of over $1 million. Verisign then appealed the original case and lost the appeal. The federal district court then ruled against awarding legal fees (beyond about $57,000 related to discovery.)

XYZ appealed the attorney fees decision. In May, the Appeals Court agreed with XYZ that the lower court did not consider the motion for fees correctly. It wrote:

…we hold that a prevailing party need only prove an exceptional case by a preponderance of the evidence, rather than by clear and convincing evidence, as the district court below required. We further clarify that a prevailing party need not establish that the losing party acted in bad faith in order to prove an exceptional case.

That sent the case back to the lower court to apply the correct standard to XYZ’s motion for fees. On Saturday, XYZ filed its post-remand submission in support of its motion for fees.

XYZ gives a long list of reasons the case should be considered exceptional, including Verisign’s broad discovery requests, 25 depositions and 17 third-party subpoenas. XYZ wrote:

Why would a sophisticated company with competent legal counsel file such a flimsy case? XYZ said nothing about .com that hadn’t been said before, and Verisign’s own numbers showed .com registrations continued to grow even after XYZ’s statements. Why draw further attention to those statements by filing a lawsuit over them? Why drag that suit on as the odds of victory grew ever longer, all the while refusing to ever meaningfully discuss settlement? The reasonable inference is that Verisign’s primary motive wasn’t winning the lawsuit so much as sending a message, not only to XYZ but to all of the other new top-level domains that entered the market and presented Verisign with meaningful competition for the first time in decades.

The circumstantial evidence supports an inference that Verisign’s true motive in pursuing a claim this weak, this aggressively, was to drain XYZ’s resources, intimidate its principal, and send a message to its other new competitors. [redacted] Under these circumstances, fee-shifting is warranted to both deter such conduct going forward and to compensate XYZ for enduring, defending and defeating Verisign’s tenuous claims and faulty lawsuit.

XYZ spent over $1 million defending itself in the lawsuit.

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