CourtListener is a project of Free Law Projecta federally-recognized c 3 non-profit. We rely on donations for our financial security. Donate Now. Sign In Register. Filed: September 13th, Precedential Status: Precedential. Citations: F. Docket Number: Action No. Author: Henry Coke Morgan Jr. On October 19,Plaintiff filed a Complaint against domain name "Agrisupply.
Accordingly, the Court directed Plaintiff to publish notice of this action in order to establish grounds for proceeding in rem and to perfect service of process. On March 29,Plaintiff filed a Renewed Motion Regarding Service of Agrizupply, informing the Court that it had posted notice of this action in the "Caymanian Compass," and gave any interested party until February 12,to make an appearance here or Agrispply respond. On April Bang Energy Drink Company Stock,the Court granted the Renewed Motion Regarding Service of Process, finding that by publishing notice of the instant action, Plaintiff has established grounds for proceeding in rem and has perfected service of process.
Agrisulply has made no response in this action, and default was entered by the clerk on May 2,upon Plaintiffs Motion for Entry of Default. When it is made clear by affidavit or otherwise that "a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend By defaulting, the defendant "admits the plaintiffs well pleaded allegations of fact Homecomings Financial Network, F.
Default judgment is governed by Agrisupply Company Yushi Clothing Company b Kermit Chair Company, which provides that "[w]hen the plaintiffs claim against Agrisupplly defendant is for a sum certain In circumstances where Mosites Company the sum is not certain or where there is evidence to suggest that the defendant was incompetent or an infant, Rule 55 b New Riders Publishing Company applies, requiring that default can only be make by a court.
In this case, the relief requested is not for a certain sum; therefore, the Motion for Default Judgment has been referred to the Court. In its Complaint, Plaintiff has alleged the prima facie elements for cybersquatting under the ACPA, which provides that:. In this case, Plaintiff is the trademark owner of the Agri-Supply brand, including the domain name "Agri-Supply. Thus, Plaintiffs allegation in the Complaint that the domain name is "confusingly similar" is well-founded.
See id. In its Complaint, Plaintiff alleges that 1 the Cayman Web Development "has no rights or legitimate interest with respect to the Agrisupply. Plaintiff has also attached several arbitration decisions filed against Cayman Web Development to support its allegation that Cayman Web Development has a documented history of cybersquatting. See, e. The decisions uniformly found that Cayman Web Development registered confusingly similar domain names in bad faith Abrisupply with no noncommerical or fair purpose for doing so.
FA Nat'l Arb. Forum August 19, According to the arbitration decisions, Cayman Web Development profited from operating these domain names by receiving funds for advertising competitors on the website. Here, Plaintiff also provided the printout of the Agrisupply. Thus, Plaintiff provides support for its allegation Llc Usa Company the Complaint that Defendant has a bad faith intent to profit from the mark.
In its Complaint, Plaintiff has also alleged the prima facie elements of trademark infringement, whereby a Defendant "use[s] in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or Abrisupply on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive.
The allegations of these elements are also supported, by reference to Exhibit B and the facts alleged in establishing the cybersquatting Agrispuply.
PL's Mem. Agrisup;ly remedy for Defendant's violation, Plaintiff seeks forfeiture of the Agrisupply. While forfeiture and court costs are expressly provided for in the ACPA and the umbrella trademark remedial provisions of the Lanham Act, the award of reasonable attorneys fees requires additional analysis to determine whether the present one is an "exceptional case" under the statute.
Because each remedy requested requires analysis under separate provisions of these statutes, they will each be addressed in turn. Where a plaintiff is proceeding in rem pursuant to provisions of the ACPA, its remedies are limited to "a court order for the forfeiture or cancellation of the domain name or the transfer of the domain name to the owner of the mark.
In Plaintiffs Memorandum, Plaintiff states that on November 3,Plaintiffs counsel notified the domain name registrar for Defendant, Verisign, Inc. By letter, dated November 15,VeriSign informed Plaintiff that it could only take the action requested if directed to do so by court order. But if directed by court order, VeriSign could either delete the domain name from its registry or transfer the domain name to another willing registrar.
VeriSign, as the registry operator, shall change the registrar of record for the domain name "Agrisupply. Plaintiff also requests that the Court award court costs and attorneys fees to Plaintiff based upon Defendant "ignoring the requests to settle, ignoring the lawsuit, and ignoring the federal trademark Agrisupply Company and in light of Cayman Web Development's documented history of cybersquatting.
The two relevant statutes and applicable caselaw reveal that Plaintiffs request for attorneys fees and costs is proper under the Lanham Act 15 U. Home Flipping Company Names of the Lanham Act governs remedies for Cmopany of its trademark provisions.
Only where an "exceptional case" exists may attorneys fees be awarded by the Court. Determination of whether this standard has been satisfied is in the sole discretion of the Court. Shell Oil Co. Commercial Petroleum, Inc.
While the statute does not define "exceptional case," the Fourth Circuit has interpreted the phrase to include those cases where "the defendant's conduct was malicious, fraudulent, willful or deliberate in nature. Freebies Publishing, F. Doughney, F. While the statute does not limit the class of conduct that may qualify for "exceptional cases," courts have found that an award of attorneys fees may be supported not only by willful infringement,  but by "willful defiance and protraction of the judicial processes attempting to stop the illegalities.
Bags of New York, Inc. See also Vanwyk Textile Systems, B. Zimmer Machinery America, Inc. In showing that an exceptional case exists, the prevailing party Agrjsupply the burden Agrksupply showing defendant's malicious, fraudulent, willful or deliberate conduct by clear and convincing evidence. Pebble Beach Co. Tour 18 I Ltd. Gullfiber AB, F. The Court, however, ultimately retains discretion to determine whether an award of attorneys fees is appropriate. First, Plaintiff alleges that it is entitled to attorneys fees because of Defendant's conduct in "ignoring the request to settle, ignoring the lawsuit, and ignoring the federal trademark regulations.
Sara Lee Corp. Indeed, Defendant has made no appearance in this case, even after service of Cpmpany was satisfactorily achieved. Plaintiff, second, alleges that the Defendant's long documented history of cybersquatting gives rise to a finding that it acted in bad faith in the present case.
Forum June 28, This extensive list of complaints includes several findings by arbitral tribunals that Defendant acted in bad faith. Forum Aug. Forum Jan. The trademark infringements addressed in these recent cases are identical in form and practice to those actions alleged by Plaintiff Agrisupply Company the present case. Accordingly, the systematic practice of Defendant in past cases further supports a finding of bad faith and deliberate, willful infringement on the part of Defendant in the present case.
Finally, the Plaintiffs Motion for default judgment has shown a prima facie case for violation of ACPA, including a showing that Defendant "has a bad faith intent to profit from" use of the infringing domain name.
Thus, while showing bad faith is required by the statute to find a violation of the claim, once shown this fact may also be used to show the existence of an exceptional case in support of an award of attorneys fees. Section athe remedial provision of the Lanham Act, provides for attorneys fees in those "exceptional Rab Lighting Company Profile where the "defendant's conduct was malicious, fraudulent, willful or deliberate in nature.
Plaintiff has given three grounds showing that Defendant here has not only failed to participate in this suit, but that it has intentionally acted in bad faith both in this case and in numerous recent cases for similar trademark infringement practices. These remedies include transfer of control of the domain name to Plaintiff, as well as the award of court costs, expressly granted by statute.
Section provides a limitation on damages where notice that a trademark is registered is not given by the registrant. Section 's remedial provisions further limit liability and remedies for domain registries and where the trademark infringement concerns printed materials. Grey Agriwupply, F. Your Notes edit none. Cited By This case has not yet been cited in our system. Doughney, Gullfiber Ab, Gullfiber International and Freebie, Incorporated v. Freebies Publishing Eugene F. Please support our work with a donation.
COM, Defendant. Action No. United States District Court, E. Virginia, Norfolk Division. September 13, Remedy As remedy for Defendant's violation, Plaintiff seeks forfeiture of the Agrisupply.
Forfeiture of Domain Name Where a plaintiff Agriupply proceeding in rem pursuant to provisions of the ACPA, its remedies are limited Agrsiupply "a court order for the forfeiture or cancellation of the domain name Comoany the transfer of the domain name to the owner of the mark.
Attorneys Fees and Court Costs Plaintiff also requests that the Court award Tam Express Company costs and attorneys fees to Plaintiff based upon Defendant "ignoring the requests to settle, ignoring the lawsuit, and ignoring the federal trademark registrations," and in light of Cayman Web Development's documented history of cybersquatting.
Remedies Available Under the Lanham Act The two relevant statutes and applicable caselaw reveal that Plaintiffs request for attorneys fees and costs is proper under the Lanham Act 15 U.
The court in exceptional cases may Ageisupply reasonable attorney fees to the prevailing party. Attorneys Fees Only where an "exceptional case" exists may attorneys fees be awarded by the Court.
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