Tuesday, March 2, 2010

Ninth Circuit Clarifies How Domain Names Can Be Attached By Creditors

Last week, the Ninth Circuit Court of Appeal clarified last week that creditors seeking to attach writ of executions against domain names in order to satisfy outstanding judgments can do so by levying the domain names through a court appointed receiver in a jurisdiction where either the domain name registrar or registry is located. See Office Depot, Inc. v. Zuccarini, No. 07-16788 (9th Cir. Feb. 26, 2010). Seattle Trademark Lawyer and Technology & Marketing Law Blog both have detailed posts on the court’s decision.

Basically, the Ninth Circuit upheld its prior decision in Kremen v. Cohen, 337 F.3d 1024, 1030 (9th Cir. 2003) that domain names are intangible property which can subject to a writ of execution. One important nuance highlighed by the court's decision is that while domain names cannot be subject to a turnover order under California law because they cannot be taken into custody, a domain name can be transferred to an appointed receiver who can then sell the domain name in order to satisfy a judgment.

Moreover, based on the sections of the Anticybersquatting Consumer Protection Act that allow for in rem actions to be filed against domain names in either the jurisdiction of the registrar or the registry, the court further concluded that under California law domain names are located where the registry is located for the purpose of asserting quasi in rem jurisdiction (so-called “attachment jurisdiction” because the jurisdiction establishes ownership of property in a dispute unrelated to the property – in thiscase, the original lawsuit brought by Office Depot for cybersquatting against Zuccarini involved a single domain name and resulted in a judgment that Office Depot then sought to satisfy by going after other domain names owned by Zuccarini).

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