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A domain name registrant may bring an action under the Anticybersquatting Consumer Protection Act (ACPA) when a domain name transfer has been ordered and the transfer is inevitable without court intervention, regardless of whether the transfer is yet effective, according to a federal district court in California.
In Mann v. AFN Investments, Ltd., No. 07CV0083BENCAB, 2007 WL 2177030 (S.D. Cal. July 27, 2007), Mann brought an action under the ACPA, challenging a National Arbitration Forum (FORUM) administrative proceeding decision ordering the transfer of Mann's domain name to AFN. The administrative proceeding was properly conducted under the FORUM's Uniform Domain Name Dispute Resolution Policy (UDRP).
Mann filed the complaint after the administrative decision was rendered and after the order to transfer the domain name was made, but before the domain name was actually transferred by the registrar. Despite the completion of the domain name transfer between the filing and the matter coming before the court, AFN moved to dismiss Mann's action, alleging that he had no standing to assert the complaint, because he was not yet aggrieved by the transfer, disabling, or suspension of the domain name at the time of the complaint as required by federal statute.
The Court first held that the ACPA challenge to the UDRP order was generally proper, since the UDRP provided that the registrar is required to implement the UDRP order, unless the registrant provides notice of a challenge filed with a court within ten business days of the UDRP decision. The Court acknowledged, however, that the issue of whether the transfer, suspension, or disabling of the domain name must occur before the complaint may be filed was a matter of first impression in the Ninth Circuit.
The Court ultimately joined the First, Second, and Fourth Circuits in holding that ACPA challenges like Mann's were proper, "so long as the domain name has been ordered to be transferred or deactivated pursuant to UDRP even if the actual transfer or deactivation has not yet occurred." The Court stated it found this position persuasive, because it preserved scarce judicial resources. The Court explained that AFN's motion to dismiss without prejudice, allowing Mann to re-file his complaint after the transfer was effective, would "simply bring us back to where we are right now," and declined to "exalt form over substance" by requiring the transfer or deactivation to be effective before an aggrieved registrant may file a complaint.
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