"The limitations potentially apply to cybersquatting claims under the ACPA, but the times, places, and circumstances in which a claim would become time-barred appear to be quite rare."
Despite being codified more than 20 years ago, there are many open questions about its implementationConsumer Protection Against Cybersquatting Act, 15 U.S.C. § 1125(d) (“ACPA”). Domain name disputes will certainly continue to evolve given the continued importance of the domain name system on the Internet and the constant changes in technology andstrategies of offenders. But there are also open questions in the application of the cybersquatting law itself, including the application and enforcement of the statute of limitations. Does the statute of limitations apply to ACPA claims? If so, how long is it? And since when has it been going on? This article examines the relatively small body of law analyzing statutes of limitations for cybersquatting claims under the ACPA.
The precise answers to the basic questions are unclear, but the result is clear: the statute of limitations is unlikely to bar an ACPA claim in all but the most limited circumstances. If a court finds that a statute of limitations exists (capital "if"), use of the domain name to engage in cybersquatting is considered a continuing tort, so the statute of limitations runs from the last date the domain was in use. Even if the defendant could show bare registration without active use of the domain name,domain re-registrationthis could be considered an adverse use, at least in most federal courts that hold that copying is covered by the ACPA. Since refiling typically occurs on an annual basis, it would be highly unlikely that a defendant would succeed in having the cybersquatting claim dismissed due to the statute of limitations.
1. Does the statute of limitations apply to ACPA claims?
The more fundamental question is, does the statute of limitations apply to ACPA claims? It depends on where the case is brought.
Courts including the Eastern District of Virginia for the Fourth Circuit, the District of New Jersey for the Third Circuit, the Eastern District of Louisiana and the Northern District of Texas for the Fifth Circuit have found that the statute of limitations may apply to ACPA claims.Mercury Luggage Mfg. Co. protiv Domain Prot., LLC, no. 3:19-CV-01939-M, 2020 WL 376609, at *2 (N.D. Tex. Jan. 22, 2020);Guidry protiv Louisiana Lightning, LLC, no. CV 15-6714, 2016 WL 3127256, at *4 (E.D. La. June 3, 2016);D'Agostino κατα Appliances Buy Phone, Inc., br. 13-cv-7122(PGS) [Dkt. br. 16] (D.N.J. 03.11.2014.);Int'l Bancorp, L.L.C. v. Society of Baines De Mer og Circle of Foreigners i Monaco, 192 F. Supp. 2d 467, 488 (E.D. Va. 2002),issued on other grounds in No. Int'l Bancorp, LLC v. Society of Sea Baths and Circle of Strangers of Monaco, 329 F.3d 359 (4. Cir. 2003).
However, the Sixth Circuit and courts in the Third and Seventh Circuits disagree. The Sixth Circuit found the statute of limitations inapplicable, holding that the ACPA was an "equity right created by Congress" and therefore the claims were not time-barred.Ford Motor Co. mod Catalanotte, 342 F.3d 543, 550 (6th Cir. 2003). Similarly, the Northern District of Illinois declined to apply the statute of limitations because the Lanham Act does not state a statute of limitations, but found that the defendant could plead the statute of limitations.Flentye v. Catherine, 485 F.Supp. 2d 903, 916 (N.D.Ill. 2007). The Eastern District of Pennsylvania also found that the statute of limitations did not apply and applied the statute of limitations instead.It is me. Diabetes Ass'n v. Friskney Family. Tr., LLC, 177 F. Supp. 3d 855, 878 (E.D.Pa. 2016.).
Based on past case law, it appears that more courts decline to apply the statute of limitations to ACPA claims than allow such a defense. However, many courts have not yet considered this issue. It is also noted that under the ACPA,not all districts are equal. ACPA takes care of thatactuallySeizure actions must be filed in cyberspace "where the domain name registry, domain name registrar, or other entity that registered or assigned the domain is located." 15 U.S.C. § 1125(d)(2)(A). This puts a disproportionate weight on jurisdictions like the Eastern District of Virginia, home to .com, .net and .org domain registries, and which appear open to potential application of the statute of limitations.
2. What is the statute of limitations for hacking actions?
If one is in a jurisdiction that accepts ACPA's statute of limitations (or, more likely, a jurisdiction that has not yet addressed the issue), how long does the applicable statute of limitations run? Leading discussionMcCarthy on trademarks and unfair competitionbelieves that the statute of limitations set forth in 28 U.S.C. Section 1658, which would provide a four-year limitation period, should apply. 6 McCarthy on Trademarks and Unfair Competition § 31:23 (5th ed.). These authors agree—28 U.S.C. § 1658(a) applies to federal laws enacted after 1990, and the ACPA was enacted in 1999.
However, the few courts that have recognized the statute of limitations have not applied the four-year statute of limitations in section 1658. The Northern District of Texas expressly declined to do so, citing a lack of precedent.Se Mercury Luggage Mfg. Co. v. Domain Prot., LLC, no. 3:19-CV-01939-M, 2020 WL 7122859, at *2 (N.D. Tex. Dec. 4, 2020). Instead, the court applied what it considered the state's most comprehensive statute of limitations — the same limitations that Texas applies to all claims under the Lanham Act and, coincidentally, also four years.ID card.Similarly, the Eastern District of Louisiana applied the most analogous state statute of limitations, the Louisiana Unfair Trade Practices Act, with a one-year statute of limitations.Guidry, 2016 WL 3127256, at *4. The Eastern District of Virginia applied a five-year statute of limitations based on proportionate loss and limitation of assets.Se Lamparello v. Falwell, 360 F. Supp. 2d 768, 775 (E.D. Va. 2004.),rev'd for other reasons, 420 F.3d 309 (4. Cir. 2005).
3. When does the statute apply?
Finally, when does the applicable statute of limitations apply? Courts seem to agree that cybersquatting causes permanent harm and therefore the statute of limitations will run from the lastusedomain, not only when the domain is registered.Se, na pr.,Omega S.A. protiv Omega Eng'g, Inc., 228 F.Supp. 2d 112, 139 (D. Conn. 2002) (“[ACPA's] plain language may impose liability not only for a one-time event (such as registration) but also for repeated or continuing acts (such as marketing and use) ... The statutory language therefore considers illegal use of a domain name to be permanent damage''.
Perhaps a defendant who does not actively use the domain may find success by invoking a statute of limitations. However, even a simple actprescribe, which often occur each year, may constitute domain abuse in violation of the ACPA. INSouthern plaster and plaster v. 3M, holding the statute of limitations as a guide to the statute of limitations, the court suggested that even the act of re-registering a domain could constitute use. Does not. 07-61388-CIV, 2008 WL 4346798 (S.D. Fla. Sept. 17, 2008);of'd, 575 F.3d 1235 (11th Cir. 2009). There, the site where the subject domain was decommissioned had been inactive since 2002, and the plaintiff did not file an ACPA action until 2007.ID card.The court acknowledged that the domain had been re-registered in the meantime and held that there were deficiencies only due to record evidence that the ministerial law on re-registrations did not mitigate the risk of damages due to the plaintiff's five-year delay in filing. the inquiry.ID card.at *9. In connection with the limitation period, which does not depend on the question of compensation, the court can decide otherwise.
In short, the statute of limitations potentially applies to cybersquatting claims under the ACPA, but the times, places, and circumstances in which they would bar a claim appear quite rare. This does not mean that a plaintiff can indefinitely delay filing an ACPA claim—the doctrine of laches plays a very important role becauseSouthern plasters and mortarsthe case shows. However, the accused would usually face an uphill battleconvince the courtthat the ACPA claim is obsolete.
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