In OnNet USA Inc. v. Play9D.com, N.D. Cal., No. 3:12-cv-06282-LB, 1/8/13, the U.S. District Court for the Northern District of California ruled that an internet gaming company could pursue a claim against a domain name pursuant to the “in rem” provisions of the Anti-Cybersquatting Protection Act by serving process by publication in an Australian newspaper where the unknown domain registrant was likely to be found.
Court Permits Service Via Publication Against Unidentified Defendant in Cybersquatting Action
The ACPA provides for the filing of an in rem action in the district where the registry for the offending domain name is located if a plaintiff trademark holder is unable to obtain personal jurisdiction over the potential defendant or is unable to find that person. The Act also allows for service of process by “publishing notice of the action as the court may direct” if through due diligence the mark owner was in fact unable to find the defendant, Sections 1125(d)(2)(A) and (B).
The court noted that little guidance exists as to how courts have construed this notice provision, and what guidance does exist, “reveals little consistency.” The court found that jurisdiction was proper given that VeriSign, the registry for the play9d.com domain name that hosted the allegedly pirated game, was located within the district.
OnNet claims to hold the exclusive worldwide rights to publish an English-language version of the 9Dragons martial arts game, a multiplayer online role playing game, on its 9dragons.gamescampus.com website. When it discovered the play9d.com allegely pirated English-language version, OnNet tried to ascertain the identity and location of the domain name holder, but that person or entity used a privacy protection service in setting up the domain. OnNet was able to ascertain that the play9d.com website owner listed its address as a post office box in Nobby Beach, Queensland, Australia, with an email address of firstname.lastname@example.org. OnNet then initiated this in-rem action against play9d.com, and sought leave to serve process by publication, suggesting the text and media outlet to use.
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