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“The defendant from hell.” “Tough and mean.” Don’t tell Philip Sbarbaro, outside chief litigation counsel for Herndon-based Network Solutions Inc., that these are negative attributes. He’d disagree. Names will never hurt him. Known as a personable man with a punishing litigation style, Sbarbaro is the lawyer behind NSI’s formidable winning streak: He boasts nearly 100 victories in court, with no losses following appeal. Of course, many of those wins came in mundane matters like collections and run-of-the-mill employment suits. But a good portion of Sbarbaro’s victories involve domain name disputes, where companies sue individuals or other companies that have managed to register a coveted Web address first. NSI gets dragged into those disputes because it is the leading registrar of names ending in .com, .net, and .org, having granted domain names to more than 10 million users. Seated in his corner office at NSI’s typical tech campus in Herndon, Sbarbaro, a partner at D.C.’s Hanson & Malloy, is soft-spoken, so much so that a visitor often has to lean in to hear him clearly. But Sbarbaro also has been known to bark so loudly into the phone that colleagues come into his office to check out the commotion. “You sue Network Solutions, you get me,” he says. He has openly challenged a federal judge in court, written forceful letters to opposing counsel questioning their skills and motives, and ordered his local counsel to sit in a courtroom all day long on the hunch – typically correct – that someone with a beef against the company will seek an injunction. “He customarily attempts to persuade you to dismiss the action and to pursue any type of relief that doesn’t involve NSI,” says David Quinto of Los Angeles’ Quinn, Emanuel, Urquhart, Oliver & Hedges, which has done battle with Sbarbaro. “Then he plays hardball.” Sbarbaro’s creativity and persistence might have been just what NSI needed when he first walked in the door in 1994. Looking at a company with no lawyers, approximately 60 employees, and 200,000 registered domain names – a small fraction of today’s numbers – Sbarbaro recalls telling NSI, “You don’t need a lawyer, you need an army.” “The Internet was a Wild West. It was a war,” says Sbarbaro. Grabbing the reins, Sbarbaro drafted NSI’s first registration document – essentially the contract with a party looking to claim a Web address – and oversaw NSI’s decision to begin charging for its services. He oversees four in-house lawyers and relies on more than a dozen firms around the country as outside counsel. Sbarbaro has faced a steady stream of suits over domain names in his six years at NSI. His primary line of defense – and his mantra – is that wrangling over a domain name is just like wrangling over a phone number. He and his legions of outside counsel around the country – from Silicon Valley to Chicago to the District and New York – contend that they simply sell a service, and if a proper target exists, it is the individual or company that registered the name, not NSI. “It is remarkable to me that Phil has been able to convince courts that NSI is not selling domain names but is selling services,” says Quinto, who has been on the losing end of battles with Sbarbaro on behalf of clients including the Academy of Motion Picture Arts and Sciences and the Lockheed Martin Corp. Back in 1996, NSI found itself in the middle of a battle between Mattel Inc. and Hasbro Inc. over the domain name “scrabble.com.” According to Quinto, who helped represent Mattel, Hasbro had registered the Scrabble domain name and Mattel objected, since both companies have rights to the Scrabble trademark. Pushing for a settlement, Sbarbaro sent a letter to the companies, liberally borrowing quotes from the Scrabble game rules printed in the box top to outline why the parties had to compromise. Sbarbaro even placed his own Scrabble-like crossword in the letter, spelling out the phrase “Settle This Like Adults.” A deal was eventually crafted, and Internet users can now reach both Mattel and Hasbro through a Scrabble gateway page. In the Lockheed Martin case, the company, as the owner of a Los Angeles aircraft design and construction laboratory named “The Skunk Works,” sued NSI in 1996 trying to protect all variations of the “skunkworks.com” domain name. Strangers to Lockheed had registered skunkwrks.com, skunkworx.com, and skunkworks.net, among others, and Lockheed wanted the registrar to cancel the Web addresses. NSI won the battle in the U.S. District Court for the Central District of California, and then Lockheed appealed. Quinto approached Sbarbaro to attempt settlement, but, according to Quinto, his offer was rebuffed. Quinto says that Sbarbaro would rather chance losing on appeal than create a precedent through settling. Comparing NSI to tobacco firms, Quinto muses, “They have to win every time. And so far they have.” Michael Burack, a partner at D.C.’s Wilmer, Cutler & Pickering and local counsel to NSI, also understands the importance of winning every trademark infringement and garnishment dispute. “These cases are very important to the company. If you let these sorts of cases get out of hand and the company finds itself exposed to this kind of litigation, it could blow up,” says Burack. For Sbarbaro, his position is clear: “NSI has never settled. They never settle.” TAXING TIMES This tenacity may have taken hold during Sbarbaro’s five-year stint at the Tax Division of the Department of Justice in the late 1980s where he says he was given one simple instruction about his cases: “Win them and be ethical.” The direction seemed to suit the Chicago native who earned his MBA and then went to a California law school – California Western School of Law – simply to increase his chances of passing that state’s bar exam. Following graduation, Sbarbaro worked at a small San Diego firm, Schall, Boudreau, & Gore, for two years. But when the interesting work dried up, Sbarbaro packed his bags and landed in Washington, spending time at the Justice Department and the Securities and Exchange Commission before ending up at his present firm, Hanson & Malloy, and with NSI. Although Sbarbaro has handed losses to a number of attorneys over his six years with NSI, many still are willing to praise his skills. Partner David Stewart of Atlanta’s Alston & Bird unsuccessfully tried to garnish domain names registered by NSI for his client, Umbro International Inc., in the Virginia Supreme Court. Labeling Sbarbaro as “very helpful and responsive in an organization that is often unresponsive and inefficient,” Stewart observes that “he seems fairly well-devoted to his client and to making sure things are done right.” Sbarbaro also gets high marks from NSI’s local counsel, who say that he gives them autonomy while still keeping track of an overwhelming caseload. “He comes up with lots of good ideas, but he also listens to others,” says partner David Johnson of Wilmer, Cutler. Even Quinto recognizes Sbarbaro’s ability to keep his local counsel busy and happy. “If I were one of his local counsel, I would enjoy the experience,” declares Quinto. “He seems like the kind of client that you would like – he provides guidance, stays out of the way, and has backbone.” CROSSING THE LINE? Not everyone is a fan. Charles Carreon is in that category. Carreon is a Medford, Ore., attorney who represented a Stanford University business grad in his attempt to regain the rights to the sex.com domain name. His client, Gary Kremen, sued NSI and Stephen Cohen in 1998, claiming that Cohen forged a letter authorizing NSI to cancel Kremen’s registration of sex.com and to give it to Cohen. Before trial in the Northern District of California, Carreon claimed that Sbarbaro went too far in making direct contact with his expert witness. Carreon then contended that Sbarbaro should have been disqualified from representing NSI in Kremen’s case. But a judge refused his motion and later granted summary judgment to NSI. Regardless of his take-no-prisoners strategy, Sbarbaro knows that someday he could lose a case that opens the door to other litigation. In fact, Sbarbaro anticipates that he will be on the losing end of a trial court decision in New Hampshire over NSI’s refusal to issue a domain name with an offensive word in it. But don’t expect Sbarbaro to back down. He says he vowed to the judge on the record that he will win on appeal. “As we approach litigation,” says Sbarbaro, “we try to make you understand that it is not an intelligent choice to sue NSI.”

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