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Aggressive Procedure

One federal statute clearly authorizes private parties to bring in rem actions in order to seize domain names. The Anticybersquatting Consumer Protection Act (ACPA) authorizes such suits against only domain names that infringe trademark rights (such as CheapChanel.com). The statute does not cover noninfringing domain names (such as Replica911.com), even if websites that sell infringing articles use those domain names.

In its lawsuit, Chanel has seized both infringing and noninfringing domain names. That’s beyond the scope of ACPA.

Even if ACPA applied to all the seized domains, Chanel and the court haven’t followed ACPA’s procedures for seizing domain names, according to many experts. For instance, “a plaintiff must show it can’t obtain in personam jurisdiction before it can bring an in rem suit. That wasn’t done here,” says Venkat Balasubramani, a partner in Focal PLLC.

And ACPA authorizes seizures only when a court has rendered a final verdict. In Chanel’s suit, the seizures occurred in the lawsuit’s initial stages—“something ACPA clearly does not authorize,” says Balasubramani.

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