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Great Socialist People's Libyan Arab Jamahiriya v. Miski

July 30, 2007

GREAT SOCIALIST PEOPLE'S LIBYAN ARAB JAMAHIRIYA, ET AL., PLAINTIFFS,
v.
AHMAD MISKI DEFENDANT.



The opinion of the court was delivered by: Reggie B. Walton United States District Judge

MEMORANDUM OPINION

The plaintiffs, the Great Socialist People's Libyan Arab Jamahiriya and the Embassy of the Libyan Arab Jamahiriya (collectively, the "plaintiffs") bring this action against the defendant, Ahmad Miski, for allegedly infringing upon their trademark rights in violation of the provisions of the Lanham Act, 15 U.S.C. §§ 1125(a)(1)(A) and (B) (2000), and the Anti-Cybersquatting Consumer Protection Act ("ACPA"), 15 U.S.C. § 1125(d) (2000). See generally Complaint ("Compl."). Currently, before the court is defendant Ahmad Miski's Motion to Transfer ("Def.'s Mot.").*fn1 For the reasons set forth below, the Court denies the defendant's motion.

I. Background

On November 30, 2006, the plaintiffs initiated this action in order to obtain the control of and damages from the registration and use of four "domain names" - "embassyoflibya.org," "libyaembassy.com," "libyaembassy.org," and "libyanembassy.com." Compl. at 1-3 & ¶ 4. The plaintiffs assert that the domain names at issue were registered to the defendant at an Annapolis, Maryland address between December 13, 2002 and March 12, 2003. Compl., Exhibit ("Ex.") 1 (Network Solutions' "WHOIS [internet] Search Results" provide information about registered domain name contained in the Public Internet Registry, which includes the name and address of individuals who registered the domain names ("WHOIS Search Results")).

The plaintiffs contend that the subject "famous marks" - "Embassy of Libya, Libya Embassy and Libyan Embassy" - and the above corresponding "domain names" are its intellectual property and are being illegally used by the defendant to sell power of attorney services in violation of the provisions of the Lanham Act and the ACPA. Compl. ¶¶ 13-14, 22. The domain names allegedly direct internet users to a website operated by the Arab American Chamber of Commerce ("AACC"), a corporation registered in the District of Columbia. See Compl., Ex. 2 (printout of the "Legalization and Certification of Documents from [the] Libya Embassy in Washington DC" website ("legalization website")); Pl.'s Mem., Ex. 2 (printout from the District of Columbia Consumer and Regulatory Affairs website ("regulatory affairs web page")). On the legalization website, the AACC offers to have documents authenticated by the Department of State, certified by the Chamber of Commerce, and legalized by the Libyan embassy in the District of Columbia. Compl., Ex. 2 (legalization website). This website contains a disclaimer, stating that it was created by the AACC, that payment is made to the AACC for the services provided, and it provides a District of Columbia telephone number for visitors to contact. Id. However, the mailing address for payment of the service fee is the same Annapolis address provided by the defendant when the subject domain names were registered. Id., Ex. 1(WHOIS Search Result).

The defendant serves as the executive director of the AACC, Pl.'s Mem., Ex. 3 (printout from the contact page provided on the AACC's website ("AACC contact page")), and he is listed as the registered agent for the AACC in the District of Columbia, id., Ex. 2 (regulatory affairs web page). In October 2006 the defendant purportedly met with the Libyan Ambassador in Washington, D.C. and attempted to negotiate an exclusive contract with the Libyan government to provide the services offered on the four websites at issue, including acting as the Libyan government's agent for the purpose of "authenticating and legalizing documents between U.S. and Libyan individuals and businesses."*fn2 Pl.'s Mem., Ex. 4 (Affidavit of Ambassador Aujali) ¶¶ 7-9.

On January 8, 2007, the defendant, a resident of Maryland, responded to the complaint by requesting that this Court transfer this action pursuant to 28 U.S.C. § 1404(a) to the United States District Court for the District of Maryland. Def's Mot. at 1. As support for requesting the transfer, the defendant challenged whether the plaintiffs have properly brought this action in the District of Columbia pursuant to 28 U.S.C. § 1391(b).*fn3 Def.'s Mem. at 3-4. On January 18, 2007, the plaintiffs filed their opposition to the defendant's motion, and on January 26, 2007, the defendant replied, making the issue ripe for resolution.

II. Standards of Review

A. Dismissal for Improper Venue

In considering a motion to dismiss for lack of proper venue under Rule 12(b)(3), "the

Court accepts the plaintiff['s] well-pled factual allegations regarding venue as true, draws all reasonable inferences from those allegations in the plaintiff['s] favor, and . . . resolves any factual conflicts in the plaintiff ['s] favor." Quarles v. Gen. Inv. & Dev. Co., 260 F. Supp. 2d 1, 8 (D.D.C. 2003) (internal quotation marks and citation omitted); see also 2215 Fifth St. Assocs. v. U-Haul Intern., Inc., 148 F. Supp. 2d 50, 54 (D.D.C. 2001) (stating that courts will grant a 12(b)(3) motion if "facts [are] presented that . . . defeat [the] plaintiff's assertion of venue") (citation omitted). "Because it is the plaintiff's obligation to institute the action in a permissible forum, the plaintiff usually bears the burden of establishing that venue is proper." Freeman v. Fallin, 254 F. Supp. 2d 52, 56 (D.D.C. 2003) (citations omitted).

B. Transfer of Venue

The determination of whether an action should be transferred pursuant to 28 U.S.C. §1404(a) "is committed to the sound discretion of the trial court." Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981). Section 1404(a) provides that "[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." 28 U.S.C. ยง 1404(a). A court usually grants a motion to transfer when (1) the moving party first establishes that the action could have been brought in the proposed transferee district, i.e., the District of Maryland, see Lentz v. Eli Lilly, 464 F. Supp. 2d 35, 36 (D.D.C. 2006), and (2) the moving party has "demonstrate[d] that the balance of ...


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