[Ws2-jurisdiction] Domain names 'located' within the US

[Thiago Braz Jardim Oliveira]

Dear Greg, dear all,

In our last call, you asked me to provide citations for cases where US courts assumed jurisdiction over domain names because, as I said then, of ICANN's location in California. I believe I suggested that there are court decisions which concluded that "domain names" are "property" located within the US precisely because of ICANN's location.

I agree with you that we'll have to come back to this in more detail, so let me just drop in here one case reference that, to my knowledge, does not appear in the list of litigation under review by our subgroup. Perhaps we should include it there. It's the NBC Universal, INC. et al., v. NBCUNIVERSAL.com (378 F.Supp.2d 715), from 2005. It's an interesting case and I think you are already familiar with it, since you pretty much described parts of it when you commented upon the point I was raising.

As you hinted yourself, the case was based on an in rem action, i.e. an action over a 'thing', and the 'thing' was the domain name. And as you also said, the decision by the court to assume jurisdiction in that case was prompted not so much by the location of ICANN in the US, but rather by the registry's location in the US. The dispute was over a .COM domain, for which the registry is VeriSign. So it was on the basis of VeriSign's location in the US that the court assumed jurisdiction over an internet domain name as a 'thing'. Again, this was in rem jurisdiction, jurisdiction over a 'thing' if you will, and this type of jurisdiction is exercised over 'things' located in the territory of the forum, so that the domain name was considered to be within the US because the registry was a US company.

Now, unless one denounces dominance by US companies as registries of gTLDs (which, to be fair, I'm not sure is the case, even though it might be), the fact that US courts can assume jurisdiction over a domain name because of the registry's location should not bother many. But, really, should it not? In this NBCUNIVERSAL.com case, not only the individual registrant was from Korea, but also the registrar was from Korea. Yet because the dispute was about a .COM domain name, for which Verisign is the registry, US courts assumed that the 'thing' (i.e. the domain name) was within and subject to US jurisdiction.

A last point I want to make is this, and I think it is more disconcerting than the previous one. The basis on which US courts assumed jurisdiction in this NBCUNIVERSAL.com case was the Anticybersquatting Consumer Protection Act ("ACPA"), 15 U.S.C. § 1125(d). In there, 15 U.S.C. § 1125(d)(2)(A) reads as follows: "The owner of a mark may file an in rem civil action against a domain name in the judicial district in which the domain name registrar, domain name registry, or other domain name authority that registered or assigned the domain name is located...".  In the NBCUNIVERSAL.com case, it was the location of the registry that gave jurisdiction to US courts under that provision. But the provision in question also grants jurisdiction to US courts on the basis of the location of any "other domain name authority that registered or assigned the domain name". As I understand it (and I may be able to point to a case that supports that), ICANN qualifies as such a domain name authority because assigning names and numbers is what it does. So according to US laws, and we are here only discussing this one particular piece of legislation, there is a real possibility that US courts assume and exercise jurisdiction over domain names, and over any domain name, TLDs and ccTLDs, because ICANN is located within US territory, as far as claims under the ACPA are concerned.

I'm sure there are plenty more cases like this, and many others that deserve our attention, and we will not have discharged our mandate unless we examine and assess them all.

Best,

Thiago Jardim

Thiago Braz Jardim Oliveira
Divisão da Sociedade da Informação
Ministério das Relações Exteriores
+55 61 2030 6389

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