Go Daddy Operating Co. v. United Statesman Ghaznavi
| Decision Date | 28 February 2018 |
| Docket Number | Case No. 17-cv-06545-PJH |
| Parties | GO DADDY OPERATING COMPANY, LLC, Plaintiff, v. USMAN GHAZNAVI, et al., Defendants. |
| Court | U.S. District Court — Northern District of California |
Defendants Usman Anis's and Silicon Valley Graphic, LLC's motion to dismiss plaintiff's complaint in its entirety and strike portions of the complaint; defendant Salman Ghaznavi's motion to quash service and dismiss the complaint; plaintiff GoDaddy's motion for a preliminary injunction; and the parties' numerous requests for judicial notice and evidentiary objections came on for hearing before this court on February 14, 2018. Plaintiff appeared through its counsel, Nathan Dooley. Defendants appeared through their counsel, Brenda Prackup. Having read the papers filed by the parties and carefully considered their arguments and the relevant legal authority, and good cause appearing, the court hereby rules as follows, for the reasons stated at the hearing and for the following reasons.
Plaintiff Go Daddy Operating Company, LLC ("GoDaddy") brought this action against defendants Usman Ghaznavi a/k/a Usman Anis ("Usman Anis"), Salman Ghaznavi a/k/a Salman Anis ("Salman Ghaznavi"), Silicon Valley Graphics ("SVG"), and a number of unidentified "Doe" defendants for injunctive relief and damages arising from alleged unauthorized use of GoDaddy's trademarks.
GoDaddy asserts violations of 15 U.S.C. § 1114 (trademark infringement), § 1125(a) (), § 1125(c) (trademark dilution), § 1125(d) (cybersquatting), as well as state-law and common-law claims of unfair competition, false advertising, trademark infringement, and intentional interference with prospective economic advantage. Plaintiff also seeks an accounting.
In addition to acting as a domain name registrar, GoDaddy offers more than 50 online products and services to the public, including website design, logo design, and business design. Compl. ¶¶ 2, 18-20. As set forth in the complaint, GoDaddy owns certain trademarks and has developed significant common law rights in the GoDaddy trade name. See id. ¶¶ 21-22.
On November 29, 2017, GoDaddy filed certificates of service showing service of the summons and complaint on each of the defendants at 45333 Fremont Blvd., Suite 5, in Fremont, California (the "Fremont Address"). The proofs of service show (1) personal service on Usman Anis on November 14, 2017; (2) substituted service on SVG on November 14, 2017, at the address of its registered agent, by leaving papers with Usman Anis, described as "Employee/Owner," followed by service by mail; and (3) substituted service on Salman Ghaznavi, by leaving papers with Lo Ann Do, graphic designer, on November 17, 2017, following attempts on three successive days to personally serve Salman Ghaznavi. Dkts. 16-18.
The complaint arises primarily from defendants' alleged use of GoDaddy's trademarks on a number of websites they operate (the websites at issue are the "Infringing Domains"). Defendants allegedly use the marks to advertise logo design, business design, and website design services. Compl. ¶ 3. Plaintiff further alleges that the defendants contacted GoDaddy customers and non-customers, falsely identified themselves as working with GoDaddy, and solicited business based on those false representations. Id. ¶¶ 4, 39-50. GoDaddy alleges a spam campaign and telephonic conversations between defendants' employees and potential customers. Id. ¶¶ 40-47.Plaintiff alleges that defendants have orchestrated a similar pattern and practice of offenses against others' intellectual property, through a network of related corporate entities, which are ultimately controlled by the named defendants in this action. Id. ¶¶ 6-7, 28-29, 37-38. GoDaddy alleges that defendants conduct their network of operations from two addresses, called the "Fremont Address" and the "Sunnyvale Address" (440 North Wolfe Road, MS# 142, Sunnyvale, California 94085).
GoDaddy alleges that the Infringing Domains utilize a "domain name privacy service," and that prior to utilizing the domain name privacy service, defendants registered domains using alias names, including "Fedrick King." Id. ¶¶ 24-25. GoDaddy claims that such alleged acts make identifying the true owner of these domains difficult when relying on public information, although GoDaddy claims to have learned that some were registered by defendants. Id. ¶¶ 24-27. For example, GoDaddy claims to have learned through WhoIsGuard that Salman Ghaznavi is the registered owner of at least one of the Infringing Domains. Id. ¶ 26.
GoDaddy asserts that it discovered defendants' use of the Infringing Domains in July 2017, when a customer brought it to GoDaddy's attention. Id. ¶¶ 30-31. When GoDaddy investigated, it learned that the infringing domain was registered using GoDaddy, on an account paid for by Usman Anis using the Fremont Address. Id. ¶ 32. GoDaddy terminated that account based on violations of GoDaddy's terms of service and discovered that the same account had registered four additional Infringing Domains. Id. GoDaddy then learned that defendants had a second GoDaddy account, paid for by the same credit card linked to Usman Anis, which listed the Sunnyvale Address as the contact and billing address. Id. ¶ 33.
GoDaddy asserts that its discovery of the Infringing Domains also shed light on their relation to a spam campaign involving the domain name route66d.com, which in the summer of 2016 was used to send spam text messages that appeared to be from GoDaddy. Id. ¶ 34. GoDaddy contends that this spam campaign gave rise to a large number of customer complaints and threats of litigation from customers who believedthey had received the messages from GoDaddy. Id. ¶ 35. This spam campaign was nearly identical to another spam campaign during the same time period that also used GoDaddy marks and directed GoDaddy customers to a website at theamericandesigns.com. Id.
The complaint goes on to explain how GoDaddy learned of other domains or products that improperly used GoDaddy trademarks, and/or which engaged in spam advertising that appeared to come from GoDaddy, and which it alleges originated with defendants. See id. ¶¶ 37-51.
GoDaddy filed its complaint on November 10, 2017. Dkt. 1. On December 14, 2017, GoDaddy moved the court for a temporary restraining order (Dkt. 24), which was argued and denied on December 20, 2017 (Dkt. 27). In that order declining to issue a TRO, the court reasoned:
It is undisputed that GoDaddy has a protectable interest in the GoDaddy Marks, and that unauthorized use of the Marks by persons or entities other than GoDaddy would be likely to cause consumer confusion. However, the court finds that GoDaddy has failed to make a clear showing that it is entitled to the extraordinary remedy of temporary injunctive relief. Primarily, GoDaddy has not made a sufficient showing that any particular defendant is responsible for the alleged infringement in this case. . . . [T]he interests of justice would be better served by a fully-briefed motion for injunctive relief, rather than the present hastily-assembled motion for a temporary restraining order, heard on shortened time.
On December 26, 2017, defendants Usman Anis and SVG filed a motion to dismiss and strike portions of the complaint. Dkt. 30. On December 29, 2017, defendant Salman Ghaznavi moved to quash service of the complaint and dismiss it for lack of personal jurisdiction. Dkt. 32. On January 10, 2018, GoDaddy filed a motion for a preliminary injunction against defendants Usman Anis, Salman Ghaznavi, and SVG. Dkt. 37.
To determine whether service of process is proper, courts look to the requirements of Federal Rule of Civil Procedure 4, which provides that service is proper if it is done "following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made[.]" Fed. R. Civ. P. 4(e)(1). California allows substitute service at one's office, usual mailing address, or usual place of business. Cal. Civ. Proc. Code § 415.20(a)-(b). Plaintiff successfully effected substitute service on Salman Ghaznavi under California law by leaving a copy of the summons and complaint at 45333 Fremont Blvd., Suite 5, Fremont, CA 94538 in the presence of a person apparently in charge and thereafter mailing a copy of the summons and complaint by first-class mail. See Dkt. 18. Salman Ghaznavi contends that service was ineffective because it did not comply with the additional requirements of the Hague Convention. Dkt. 32 at 13-14; Dkt. 40 at 9. The Hague Convention applies only when "a transmittal abroad . . . is required as a necessary part of service." Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 707 (1988). Furthermore, "the internal law of the forum is presumed to determine whether there is occasion for service abroad." Id. at 704. Because California law does not require the mailing of documents abroad in order to effect service of process in the technical sense, the Hague Convention does not apply. Id. at 707-08; Piatek v. Siudy, 351 F. App'x 232, 233 (9th Cir. 2009).
Defendant Salman Ghaznavi's motion to quash service is therefore DENIED. Defendant's accompanying request for judicial notice (Dkt. 33) is DENIED as moot.
The party seeking to invoke the federal court's jurisdiction bears the burden of demonstrating jurisdiction. Picot v. Weston, 780 F.3d 1206, 1211 (9th Cir. 2015). When resolving a motion to dismiss under Rule 12(b)(2) on written materials, the court accepts uncontroverted facts in the complaint as true and resolves conflicts in affidavits in the plaintiff's favor. Mavrix Photo, Inc. v. Brand Techs., Inc., 647 F.3d 1218, 1223 (9th Cir. 2011).
The Due Process Clause of the Fourteenth...
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