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.NZ domain manager sues Whois API

by — Policy & Law 4 Comments

Company goes after another Whois record seller.

Logo for Whois XML APIDomain Name Commission (DNC), which manages New Zealand’s .nz country code domain name, has sued Whois information provider Whois API. The company is also known as Whois XML API.

The lawsuit is similar to one it filed against DomainTools last year.

DNC alleges that Whois API has accessed and stored .nz Whois records in violation of its terms of use.

The group sent a cease & desist letter to Whois API on December 17, 2018, the lawsuit states. At that time, it also revoked Whois API’s limited license to run any .nz Whois queries. It says it didn’t receive any response after multiple attempts to contact Whois API and its CEO.

Whois API originally sold a lot of data to people that used it for marketing purposes, including Whois database downloads, but has shifted its messaging to security over the years.

The lawsuit filing is here (pdf).

Stolen domain lawsuit now officially a clusterf*ck

by — Policy & Law 4 Comments

Another party shows up to continue lawsuit over allegedly stolen domains.

Picture of a kid making a mess with spaghetti

An apt representation of this lawsuit.

What was supposed to be a simple in rem stolen domain name case got a lot messier in April. Now it is a clusterf*ck.

Yoshiki Okada filed a lawsuit late last year to recover domain names he said were stolen from his possession, including eol.com, fde.com, jol.com, nnn.com, olp.com, tang.com, wok.com, wtv.com, and zhang.com.

At first, no one showed up to defend the domain names. Still, the judge was wary of handing the domains over. She questioned how the plaintiffs had trademark rights to a domain like Tang.com.

Okada’s attorneys tried to convince the judge. Meanwhile, a company showed up in April to defend OLP.com, saying it recently acquired the domain name.

At this point, the case reached ‘messy’ status on the DNW-lawsuit-messiness scale.

The scale goes even higher, and this case has officially reached clusterf*ck level.

A third party has shown up at the court claiming that he was financing the lawsuit in an effort to buy the domain NNN.com.

Mark Thompson says (pdf) he agreed with Okada that he would finance the litigation to recover the domains and, if successful, Okada will sell NNN.com to him for $335,000.

But, according to Thompson, Okada hasn’t been very responsive. Okada’s attorneys at ESQwire.com withdrew as counsel. If you read between the lines, it sounds like they weren’t able to get Okada to respond in a timely manner:

A dispute has arisen between counsel and the Plaintiff such that counsel can no longer, consistent with his ethical obligations, continue to represent the Plaintiff. Counsel is prohibited
from disclosing the nature of the dispute as all communications with the client are protected by the attorney-client privilege. A key element of the attorney-client relationship is regular
communication and interactions regarding the matter at hand including discussions of strategy and substance. In particular, counsel can only act upon the direct instructions of the client and, in the absence of such direct instructions, is barred from taking any action. Based on this standard, and without divulging client confidences, counsel represents to the Court that he can no longer continue to represent the Plaintiff in this matter.

Thompson wants to move forward with the case and is trying to intervene based on his interest in NNN.com.

France appeals immunity decision in France.com case

by — Policy & Law 1 Comment

Judge argued that sovereign immunity required discovery first.

Screenshot of France.com before it was taken over by the French Republic

Someday, Jean-Noël Frydman might be able to operate his tour company on France.com again

A case over ownership of France.com is moving forward, now with a side trip to a U.S. appeals court.

Jean-Noël Frydman, who registered France.com in 1994, lost control of the domain name to the country of France after France intervened in a court case. Frydman was in a legal battle with an unrelated entity over trademarks when the French government intervened in the case and convinced a court to transfer France.com to it.

(Hear about the saga directly from Frydman in DNW Podcast #184.)

Frydman sued in U.S. court to get the domain back.

France and its related entities filed a motion to dismiss on three grounds:

1. It had sovereign immunity
2. The plaintiff was seeking to re-litigate a judgment rendered by a competent foreign court
3. The case failed to state a cause of action

United States District Judge Liam O’Grady granted (pdf) the motion to dismiss for several of the French entities (including the French Republic) because the Complaint lacked sufficient factual allegations to state a claim upon which relief could be granted.

However, O’Grady said the issue of sovereign immunity would best be raised after discover has concluded.

He also gave Frydman’s company 30 days to file an amended complaint.

But France immediately appealed (pdf) the decision on immunity and asked the district court to stay further proceedings.

Meanwhile, Frydman doesn’t have his domain name.

Judge orders 864.com returned to prior registrant

by — Policy & Law 0 Comments

864.com returned to prior owner after it was apparently stolen for a second time.

Picture of robber in black clothing, black at, black gloves and eye maskA court has entered a default judgment (pdf) in an in rem lawsuit over stolen numeric domain names. It has ordered the domain names to be returned to their prior owners.

The case involved 864.com, 00998.com, 00488.com, 0103.com, and 1148.com. The plaintiffs said the domains were stolen from them.

No one showed up to defend the domain names so the court has ordered the transfer.

It’s possible that someone is about to get an unwelcome surprise. 864.com sold on NameJet late last year for $147,000 and was then transferred to Enom, which was a requirement (at the time) for private party sales on the platform. The current owner might have purchased a hot domain name.

This is apparently the second time 864.com has been stolen.

Scratch.org update and subpoenas

by — Policy & Law 10 Comments

Here’s why domain investors got subpoena notices from Enom.

Picture of Subpoena document

There’s been a lot of talk in domain circles today about subpoena notices for domains at Enom.

The subpoena stems from a lawsuit that Scratch Foundation, a non-profit created at MIT, filed against the domain name Scratch.org.

Scratch Foundation filed the case as in rem (meaning against the domain), but Ravi Lahoti stepped forward as the owner. Lahoti says he’s owned the domain name since 1998. DomainTools historical Whois records seem to corroborate his story, at least until Scratch Foundation was formed, although the domain has bounced around different entities/privacy services.

This brings us to the subpoena, which you can view here (pdf). Attorney David Weslow, who is representing Scratch Foundation, asked Enom for a list of Lahoti’s domains. The original subpoena was quite a bit broader than that, but these things are often narrowed between the lawyer and recipient. Regardless, Enom has apparently notified anyone who owns a domain that was at any point tied to Lahoti.

It seems that Weslow is trying to paint Lahoti as a serial cybersquatter.

Indeed, in a recent order (pdf), the judge wrote “Plaintiff has also brought various other anticybersquatting cases against Mr. Lahoti to the Court’s attention which demonstrate that Mr.
Lahoti is a notorious cybersquatter.”

Whether or not Lahoti is a notorious cybersquatter shouldn’t matter on the claim under the Anticybersquatting Consumer Protection Act so long as Lahoti proves that he owned the domain before Scratch Foundation had rights in the mark. This seems like it will be easy to do.

But there’s an interesting wrinkle in the lawsuit: it also claims trademark infringement. Should Scratch Foundation show that prior ads on Scratch.org infringed on its trademarks, could it win a judgment against the domain? I’m not familiar with how a judgment for trademark infringement works in an in rem case. But it’s clear that the trademark infringement claim is part of the effort to get control of the domain.

There’s a lesson here involving in rem lawsuits. Lahoti asked the court to name Lahoti as the defendant instead of in rem. This might make it easier to defend but also opens him up to personal liability. The court denied this request on the basis that Lahoti didn’t object early enough to in rem jurisdiction.