Opinion
1:11cv409(LMB/JFA)
12-05-2011
ENTREPRENEUR MEDIA, INC., Plaintiff, v. SEATTLEENTREPRENEUR.COM and AUSTINENTREPRENEUR.COM, Defendants.
ORDER
Before the Court are Proposed Findings of Fact and Recommendations ("Report"} issued by a magistrate judge on November 3, 2011 [Dkt. No. 21]. The Report recommended that plaintiff's Motion for Entry of Default Judgment [Dkt. No. 14] be granted and that Verisign, Inc., the registry of domain names and (the "Infringing Domain Names") be ordered to require the current registrar to transfer the registrations for such domain names to plaintiff, Entrepreneur Media, Inc. Report at 11. The parties were advised that any objections to the Report must be filed within 14 days and that failure to file a timely objection waives the right to appeal the substance of the Report and any judgment based upon the Report. As of December 4, 2011, no party has filed an objection. The Court has reviewed the Report, plaintiff's motion, and the case file and adopts the Report in its entirety.
Plaintiff brings an in rem action under the Anticybersquatting Consumer Protection Act ("ACPA"), 15 U.S.C. § 1125(d). Accordingly, the Court has subject matter jurisdiction over this action pursuant to 15 U.S.C. § 1121 and 28 U.S.C. §§ 1331 and 1338(a). Venue is proper under the ACPA because Verisign, Inc., the domain name registry, is located in this district. 15 U.S.C. §§ 1125(d)(2)(A) and (C).
The court has in rem jurisdiction over the Infringing Domain Names pursuant to 15 U.S.C. § 1125(d)(2)(A). Under this provision, a court in the judicial district in which the domain name registry is located has in rem jurisdiction if "the domain name violates any right of the owner of a mark registered in the Patent and Trademark Office" and the owner of the mark "is not able to obtain in personam jurisdiction over a person who would have been a defendant in a civil action" under the ACPA or "through due diligence was not able to find a person who would have been a defendant" after sending notice of the claimed violation and the owner's intent to file suit to the registrant. 15 U.S.C. § 1125(d)(2)(A).
Both requirements for in rem jurisdiction are satisfied here. First, plaintiff is the owner of the "Entrepreneur" trademarks and service marks ("Entrepreneur Marks"), which have been registered with the Patent and Trademark Office. Compl. ¶¶ 12-13. Plaintiff alleges that the registration and use of the defendant domain names infringes its rights in its marks. Second, the registrant of the Infringing Domain Names, Oleg Nevzorov, resides in Russia and does not appear to have contacts with the United States sufficient to subject him to personal jurisdiction. See Compl. Ex. A; Mem. of Law in Supp. of Pl.'s Mot. for Entry of Default J. at 7 ("Pl.'s Mem.").
The magistrate judge also correctly determined that the Entrepreneur Marks are distinctive, that the Infringing Domain Names are confusingly similar to these marks, and that the domain names were registered and used with "bad faith intent to profit" from plaintiff's marks. See 15 U.S.C. § 1125(d)(1)(A). The Court therefore finds that the registrant's registration and use of the domain names constitute a violation of the ACPA. Accordingly, plaintiff's Motion for Entry of Default Judgment [Dkt. No. 14] is GRANTED and it is hereby
ORDERED that Verisign, Inc., as the operator of the registry of the and domain names (the "Infringing Domain Names"), directly or through the current registrar of such domain names, GoDaddy.com, Inc., (1) immediately transfer the Infringing Domain Names from their current registrant, Oleg Nevzorov, to plaintiff Entrepreneur Media, Inc., located at 2445 McCabe Way, Suite 4 00, Irvine, California 92614; (2) in connection with the aforementioned transfers, change the identity of the Administrative and Technical Contact for the Infringing Domain Names from Nevzorov to Michael Frazier (MF92215), Entrepreneur Media, Inc., 2445 McCabe Way, Suite 400, Irvine, California 92614, United States, mfrazier@entrepreneur.com, telephone number (94 9) 261-2325, and fax number (949) 261-7729; and (3) take such other and further actions as necessary, in order to transfer to plaintiff all rights, title, and interest in and to the Infringing Domain Names, including registration and full control thereof.
The Clerk is directed to enter final judgment in plaintiff's favor pursuant to Fed. R. Civ. P. 55 and to forward copies of this Order to counsel of record, and the registrant, Oleg Nevzorov, Molotova-23, Moscow, 7789966, Russian Federation.
Alexandria, Virginia
Leonie M. Brinkema
United States District Judge