Ninth Circuit cans ham cybersquatter's appeal

In Consorzio del Prosciutto di Parma v Domain Name Clearing Co, the US Court of Appeals for the Ninth Circuit has refused to grant relief from a default judgment to a cybersquatting defendant who attempted to evade service and then failed to follow the Federal Rules of Civil Procedure governing the appeal.

The Consorzio del Prosciutto di Parma is an Italian consortium that represents producers of Parma ham. In 1996 the consortium obtained a federal registration for the certification mark PARMA HAM. In 1997 a company controlled by attorney Chris Truax registered the domain name 'parmaham.com' without the consortium's permission. After Truax refused the consortium's $9,000 offer to purchase 'parmaham.com' and other related domain names, the consortium sued him and his companies, alleging that they had violated the Anti-cybersquatting Consumer Protection Act by registering and using the domain name in bad faith.

At first, Truax successfully evaded service and the consortium eventually resorted to service by publication in a local newspaper. Truax thereafter failed to make an appearance in the district court and default judgment was entered against him. The district court ordered Truax (i) to pay over $24,000 in attorney's fees, and (ii) to transfer the domain name to the consortium.

Truax, representing himself, made no attempt to set aside the verdict in the district court but instead headed straight for the Ninth Circuit Court of Appeals to seek relief from the default judgment. However, Federal Rules of Civil Procedure 55(c) and 60(b) require the losing party to first file an appropriate motion in the court where the default was entered, even if the party has never appeared before that court. Because Truax failed to follow the procedures set out in the Federal Rules, the Ninth Circuit held that "Truax's argument that service was insufficient is not a matter properly before this court" and dismissed his appeal.

Laurel E Queeno and James A Bulen Jr, Piper Rudnick LLP, Chicago

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