discuss Does ACPA apply outside the US? Risk assessment

[NXDomains]

Hi guys,

This is my first post on Namepros, I have been lurking for quite some time and I must say this is a fantastic forum with very kind and interesting members! I am a beginner domainer and hope to be able to add contributions of my own in due time.

I'm based in the UK. I haven't sold any domains yet as this is a new business for me and I am very analytical. I have spent many hours reading all the threads in this legal forum as I want as much clarity as possible before I start attempting to sell, especially when it comes to doing outbound marketing.

I am particularly interested in gaining insight on the risk level when it comes to those grey-area domains that may or may not infringe on IP laws. It's not part of my strategy to deliberately go for trademarks and such, but at the same time I want to be prepared if I get caught out.

From what I understand, UDRP has global reach and if lost, will result in the loss of a domain. Therefore, the maximum downside risk is the loss of the initial investment, plus the hit to reputation of having the case published.

The scarier possibility seems to be the ACPA (Anti-Cybersquatting Protection Act) in which it's possible to be sued for many thousands of dollars in damages. This is a much more threatening downside risk obviously.

My question is, as ACPA appears to be part of US law, and with me being in the UK, does this mean I can forget about ACPA when it comes to risk assessment? And are there any additional regulations/laws I should consider?

Any advice would be great from those that know, thanks!

 

[Kate]

I am not a lawyer but:
A US company could in theory file a lawsuit against you.
Then it's up to you to appear in person or arrange for legal representation. You could be sentenced in absentia. Ignore the ruling. Expect to be arraigned at the airport if you set foot on US soil in the future. I guess this is a possible risk.

But normally you don't sue people who don't have assets or are not within easy reach of the legal system.

Another scenario to consider:
A foreign entity could file a lawsuit against you in your home country. But again the stakes have to justify it.

One link for you: https://domainnamewire.com/2017/06/03/telepathy-sues-getting-rdnh-win/

As you can see, being resident abroad does not mean you're safe.
Don't do stupid things and you'll be fine unless you are extremely unlucky.

 

[jberryhill]

I want as much clarity as possible before I start attempting to sell, especially when it comes to doing outbound marketing.

...

My question is, as ACPA appears to be part of US law, and with me being in the UK, does this mean I can forget about ACPA when it comes to risk assessment?

If you plan on conducting your "outbound marketing" by directing communications to persons in the US, then you can expect to be subject to jurisdiction in the US in relation to those communications.

If you plan to establish a course of conduct of conducting business generally with persons in the US, then you can also expect to be subject to jurisdiction in the US.

You will not be arrested at the airport if there is a default judgment against you in the US. However, if you are sued in the US, and a judgment obtained against you, then the party obtaining the judgment can apply to have it enforced against you by the courts in the UK pursuant to various treaties on the subject of recognition of foreign judgments. You may, depending on the UK implementation of the relevant treaty, have the opportunity to challenge jurisdiction of the US court in relation to that judgment, but you will not have the opportunity to defend against the substantive basis of that judgment.

You mentioned the ACPA, but there are two types of lawsuits that can be brought under the ACPA. One type, relevant to the comments above, is a suit against you personally. However, if personal jurisdiction is not available over you, then the plaintiff can still proceed with what is called an "in rem" action against the domain name, based on the location of the registry. If, for example, we are talking about .com domain names, then an in rem ACPA suit can ALWAYS be filed in the US District Court for the Eastern District of Virginia, because that is where the .com registry (Verisign) is located.

Of course, if you were planning to use GoDaddy, for example, you can also be sued in the federal court in Arizona, since that is the place where you contracted for registration of the domain name.

Jurisdiction is not simply about your physical location. Relevant considerations are (a) where are the people with whom you are conducting business, (b) where is the registry, and (c) where is the registrar.

 

[NXDomains]

Thank you both for taking the time to give me such in-depth answers! I now understand that being in another country doesn't necessarily mitigate any risk at all. I will read a lot more and study as many cases as I can.

My aim is to resell domains as a cashflow business, with the domains being as generic and inoffensive as possible. As I see it currently, the potential legal obstacles make it very tricky to truly calculate what the potential liability is, and for that reason it may not be feasible as a business. However, there are still a few successful domain investors making an excellent living, many of whom post on this forum.

In order to avoid true damage a la ACPA or similar acts, I suppose that immediate surrender on arrival of a cease and desist order could be a risk control strategy? I don't suppose a company would invest time and money in a lawsuit purely to make an example of someone, unless they do something really stupid like register facebook[dot](newgTLD) and try to sell it to facebook. It has never been my intention to try stupid things like this.

To those with experience, do serious lawsuits still get pushed through even if the domainer surrenders in the event of a C&D? I feel that it's proper practice to try to quantify the risk as much as possible before starting a venture. As I'm looking at a buy low, sell high strategy, I don't mind the risk of losing the initial investment only.

Best regards!