Friday, September 06, 2002

in rem domain name actions

OK, so maybe you're a citizen of someplace outside of the United States, and live somewhere other than the States. You decide that you would like to start up a web site, and choose to register a name that has the letters "com" at the end. The site is hosted outside of the United States, or at least, outside of Virginia. (Why do I mention Virginia? I'll get to that very shortly.) You build your site, and everything is going along just fine. And then a notification comes that a suit has been filed in a Virginia Court against your domain name, for cybersquatting, or trademark infringement. As far as you know, you have no contact with Virginia. But your domain name does. That's where it is registered. And the suit has been brought against your domain name. In the US, domain names have been treated as a piece of property with a physical existence at the place of registration:
The court decisions affirming this principle were Porsche Cars v and others (pdf), and Harrods Limited v Sixty Internet Domain Names (pdf). You may be wondering how it is that the Plaintiffs appear to be suing domain names rather than people or companies. In an odd twist, strange at least to most non-lawyers, US law says that a domain name is a piece of property that can be sued in its own right. This is called an in rem action (Latin for 'against the thing' as opposed to in personam or 'against the person'). The consequence of this peculiar state of affairs is that all of those registrants who have a .com domain name but live outside Virginia are viewed as absentee owners of property situated there. If you injure someone by virtue of that property (we're talking trademark disputes here) then Virginia's courts will take the case.
Yes, in Virginia. (links to opinions via Howard Bashman's amazing blog How Appealing)

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