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Cybersquatters take note: A federal appeals court has ruled that although the Anti-Cybersquatting Consumer Protection Act is not to be applied retroactively, the re-registration of an Internet domain name brings the site within the law’s reach. In Schmidheiny v. Weber, the 3rd U.S. Circuit Court of Appeals revived a billionaire’s lawsuit against an alleged cybersquatter who offered to sell him the Internet domain with the billionaire’s last name followed by dot-com. A lower court dismissed Stephan Schmidheiny’s suit after finding that Steven Weber had originally registered schmidheiny.com more than nine months before the law took effect in November 1999. Now the 3rd Circuit has ruled that the re-registration of the domain name in June 2000 “is an action within the purview of the Anti-Cybersquatting Act.” According to court papers, Schmidheiny has a net worth of $3.1 billion, and has been ranked among the wealthiest individuals in the world by Forbes Magazine for the past three years. In November 2000, Weber sent an e-mail to Schmidheiny’s assistant, offering to sell Schmidheiny the domain name of schmidheiny.com. At the time, the schmidheiny.com domain name was registered to Famology.com Inc., and Weber served as the company’s president and treasurer. Schmidheiny filed suit, but Senior U.S. District Judge Charles R. Weiner of the Eastern District of Pennsylvania dismissed the case after finding that the domain name was registered before the law took effect, and that the re-registration was legally insignificant. The original registrant for schmidheiny.com was “Weber Net” and the domain name registrar was Network Solutions Inc. But in June 2000, Famology.com filed a new registration agreement with Internet Names Worldwide to secure the rights to the schmidheiny.com domain name for a new one-year period. Weiner rejected the argument that the re-registration brought the site within the law. “The statute references only ‘registrations,’ not ‘re-registrations,’” Weiner wrote. Weiner stressed that Congress “made a clear legislative choice that the Anti-Cybersquatting Act is not to be applied retroactively.” As a result, Weiner said courts should focus on the “creation date” of a domain name. “To consider a re-registration to be a registration would enfog the bright line date established by the Act,” Weiner wrote. Employing an elementary principle in statutory construction, Weiner concluded that “the plain meaning of the word ‘registration’ as used by Congress imparts to us no other meaning but the initial registration of the domain name.” The 3rd Circuit disagreed. “We do not consider the ‘creation date’ of a domain name to control whether a registration is subject to the Anti-Cybersquatting Act, and we believe that the plain meaning of the word ‘registration’ is not limited to ‘creation registration,’” 3rd Circuit Judge Richard L. Nygaard wrote. Nygaard found that the words “initial” and “creation” are never mentioned in the law, and that “Congress did not add an exception for ‘non-creation registrations.’” Weiner’s rationale — that “if Congress chose to treat re-registrations as registrations, it could have used words appropriate to impart that definition” — was “not a sufficient reason for courts to infer the word ‘initial,’” Nygaard said. Instead, Nygaard concluded that “the language of the statute does not limit the word ‘registration’ to the narrow concept of ‘creation registration.’” “To conclude otherwise would permit the domain names of living persons to be sold and purchased without the living persons’ consent, ad infinitum, so long as the name was first registered before the effective date of the Act,” Nygaard wrote in an opinion joined by Senior 3rd Circuit Judge Joseph F. Weis Jr. and visiting U.S. District Judge Joseph E. Irenas of the District of New Jersey. Schmidheiny was represented in the appeal by attorney Neil E. McDonell of Dorsey & Whitney in New York. Weber and Famology.com Inc. were represented by attorney Anthony J. DeGidio of Toledo, Ohio.

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