289 F.3d 865 (6th Cir. 2002), 00-4556, Bird v. Parsons

Docket Nº:00-4556
Citation:289 F.3d 865
Party Name:Bird v. Parsons
Case Date:May 21, 2002
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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289 F.3d 865 (6th Cir. 2002)

Darrell J. BIRD, Plaintiff-Appellant,


Marshall PARSONS, Defendant,

Stephen Vincent, George DeCarlo, Dotster, Inc., and Afternic.com, Inc., Defendants-Appellees.

No. 00-4556.

United States Court of Appeals, Sixth Circuit

May 21, 2002

Submitted: March 22, 2002.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Darrell J. Bird (briefed), Dayton, OH, for Plaintiff-Appellant.

Richard S. Lovering (briefed), Bricker & Eckler, Columbus, OH, Kevin A. Bowman (briefed), Sebaly, Shillito & Dyer, Dayton, OH, for Defendants-Appellees.

Before: NORRIS, SILER, and GILMAN, Circuit Judges.


GILMAN, Circuit Judge.

Darrell J. Bird, an Ohio citizen proceeding pro se, brought this lawsuit alleging various violations of federal copyright and trademark law against Afternic.com, Inc., Dotster, Inc., George DeCarlo, Marshall Parsons, and Steven Vincent. Dotster, DeCarlo, and Vincent are citizens of Washington, Afternic has its headquarters in New York, and Parsons resides in California. Bird's allegations involve the defendants' activities in connection with the registration and attempted sale of the Internet website "efinancia.com." All defendants except Parsons filed motions to dismiss for failure to state a claim. Dotster, DeCarlo, and Vincent (the Dotster defendants) also filed a motion to dismiss for lack of personal jurisdiction. After determining that it lacked personal jurisdiction over the Dotster defendants and that Bird had failed to state a claim against either Afternic or the Dotster defendants, the district court granted the motions to dismiss filed by these defendants. For the reasons set forth below, we AFFIRM the judgment of the district court.


A. Internet domain names

This case involves the process of establishing domain names for Internet websites. Several introductory remarks are necessary to clarify the terms and actors that are relevant to the process. A more detailed explanation of these concepts can be found in cases such as Lockheed Martin Corp. v. Network Solutions, Inc., 194 F.3d 980, 981-82 (9th Cir. 1999), Avery Dennison Corp. v. Sumpton, 189 F.3d 868, 871-72 (9th Cir. 1999), and Lockheed Martin Corp. v. Network Solutions, Inc., 985 F.Supp. 949, 951-53 (C.D.Cal. 1997).

The creation of an Internet website requires the reservation of a location, called an Internet Protocol (IP) address, and the computer programming necessary to generate the contents of the site. In order to make using the Internet easier, specific "domain names" are assigned to correspond to the IP addresses. A person who wants to select a domain name must register the name with one of several domain-name registrars. These registrars screen the domain-name applications to make sure that the desired name is not already being used. In addition, the registrar maintains a directory that links domain names with their corresponding IP addresses.

An Internet user who seeks to access a website enters the domain-name combination that corresponds to the IP address, and he or she is then routed electronically to the computer that hosts that address. Because not every person who establishes a website desires to host the site on his or her own computer, an industry of surrogate hosts has developed, where entities license space on their computers to website operators. A person can thus maintain a website without keeping his or her personal computer constantly connected to the Internet.

B. Factual background

Bird has operated a computer software business under the tradename Financia, Inc. since 1983. In November of 1984, Bird obtained formal registration for the tradename "Financia" from the United States Patent and Trademark Office. He

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later registered a copyright for a manual and computer source code titled "Financia" in February of 1995. Financia, Inc. owns the Internet domain name financia.com. Bird alleges that as a result of the widespread distribution of his computer software program throughout North America since 1983, and the publication of several national articles about his program, his "unique, suggestive, [and] fanciful" trademark is famous.

Dotster is a registrar of Internet domain names. It operates an Internet website at www.dotster.com, where individuals and corporations can register an alphanumeric string of characters as an Internet domain name. This registration process operates in conjunction with the Domain Registration of Internet Assigned Names and Numbers (IANN), which is maintained by Network Solutions, Inc. and regulated by the Internet Corporation for Assigned Names and Numbers (ICANN). Dotster is an ICANN-accredited registrar. In addition to acting as a registrar, Dotster allows registrants to "park" their domain names on its "Futurehome page." This service is useful for registrants who lack an Internet server to which the new domain name can be assigned.

Parsons registered the Internet domain name "efinancia.com" by using Dotster's website on February 10, 2000. He then decided to "park" his domain name on Dotster's "Futurehome page" with the address www.efinancia.com. Bird alleges that DeCarlo and Vincent, as either agents or principals of Dotster, took an active role in activating Parson's website and in advertising the site as available for use.

Afternic is a company that provides an auction service on its website, www.afternic.com, for the purchase, sale, and exchange of domain names. It listed efinancia.com on its website on February 11, 2000, the day after Parsons registered the domain name. The description of the domain name stated that efinancia means "eFinance in Spanish." In addition, the posting listed "fundwizard," a name that Bird contends identifies Parsons, as the domain name's seller. Bird alleges that the existence of the auction posting for efinancia.com "suggests a RICO type of mutually conspired pattern of conduct."

C. Procedural background

This lawsuit was filed in the United States District Court for the Southern District of Ohio on May 31, 2000. Bird's complaint alleges trademark infringement, unfair competition, and trademark dilution, in violation of 15 U.S.C. §§ 1114(1)(a), 1125(a), and 1125(c), respectively. In addition, Bird asserts a claim for "cybersquatting" under the Anticybersquatting Consumer Protection Act of 1999 (ACPA), 15 U.S.C. § 1125(d), as well as for copyright infringement in violation of 17 U.S.C. § 106.

On September 8, 2000, Afternic filed a motion to dismiss Bird's allegations against it pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The Dotster defendants followed suit on September 20, 2000 with a motion to dismiss for lack of personal jurisdiction and for failure to state a claim, pursuant to Rules 12(b)(2) and 12(b)(6) of the Federal Rules of Civil Procedure, respectively.

All parties consented to having the case decided by a magistrate judge pursuant to 28 U.S.C. § 636(c). The magistrate judge concluded that the district court lacked personal jurisdiction over the Dotster defendants and that Bird had failed to state a claim against either Afternic or the Dotster defendants. As a result, the district court granted the motions to dismiss filed by these defendants in an order that was entered on November 27, 2000.

The district court recognized that its order did not resolve Bird's allegations

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against Parsons, but it nonetheless directed that its judgment of dismissal as to Afternic and the Dotster defendants be final pursuant to Rule 54(b) of the Federal Rules of Civil Procedure. According to the court, no just cause existed to delay the entry of final judgment as to these defendants because Parsons was proceeding pro se and the litigation between Bird and Parsons "may be more protracted." A final judgment was therefore entered on November 27, 2000. This timely appeal followed.


A. Standards of review

We review de novo a district court's dismissal of a complaint for lack of personal jurisdiction pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure. Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 887-88 (6th Cir. 2002). The party seeking to assert personal jurisdiction bears the burden of demonstrating that such jurisdiction exists. Id. at 887. When the district court dismisses a complaint pursuant to Rule 12(b)(2) without conducting an evidentiary hearing on the issue of personal jurisdiction, however, the plaintiff "need only make a prima facie showing of jurisdiction." Id. (citation omitted). In this situation, we "will not consider facts proffered by the defendant that conflict with those offered by the plaintiff, and will construe the facts in a light most favorable to the nonmoving party." Id.

A district court's dismissal of a complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure is also reviewed de novo. Jackson v. City of Columbus, 194 F.3d 737, 745 (6th Cir. 1999). In considering a motion to dismiss, "[t]he court must construe the complaint in a light most favorable to the plaintiff, and accept all of [the] factual allegations as true." Id. (citation omitted). "A motion to dismiss under Rule 12(b)(6) should not be granted 'unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Buchanan v. Apfel, 249 F.3d 485, 488 (6th Cir. 2001) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); see also Jackson, 194 F.3d at 745 (noting that dismissal is only proper "if it is clear that no relief could be granted under any set of facts that could be proved consistent with the...

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