Friday, August 14, 2009

FAQ - 11 What if I don't live in the US? Can I still lose my domain name under the ACPA

Question: What if I don't live in the US? Can I still lose my domain name under the ACPA?

Answer: Indeed, you can. If the mark owner is protected by US law (uses the mark in the US) then that mark owner can bring an ACPA action in a US court regardless of the domain holder's location. If the domain holder fails to show up in court, s/he may lose by default, in which case the US court will issue an order to the domain registrar or registry to cancel or transfer the domain registration to the mark owner. If the domain holder cannot be identified or located, the mark owner can bring an in rem action to obtain the domain name (see "What if the mark owner can't find the domain name holder?"). But the court must have authority over the registry or registrar holding the domain registration. All .com, .org and .net domain names are subject to the ACPA because the registry, Network Solutions, is located in the US. If the court does not have jurisdiction over the domain name registrar or registry, however, it will be difficult for the court to enforce its order outside the US. If neither the domain holder nor the mark owner has any contact in the US, then it isn't likely either can seek protection under US domestic laws, however, this is a question decided under treaties that govern international protection of trademarks. In such cases, the UDRP may be a more useful forum for the trademark owner to use.


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