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UNITED PARCEL SERVICE OF AMERICA v. NET

January 15, 2005.

UNITED PARCEL SERVICE OF AMERICA, INC., Plaintiff,
v.
THE NET, INC. and JOHN DOES 1-10, Defendants.



The opinion of the court was delivered by: ARTHUR SPATT, District Judge

MEMORANDUM OF DECISION AND ORDER

United Parcel Service of American, Inc. ("UPS" or the "plaintiff") commenced this action alleging that The Net, Inc. ("The Net") and John Does 1 through 10 (collectively, the "defendants") engaged in trademark dilution and infringement, unfair competition, deceptive business practices, cyberpiracy, and misappropriation of the plaintiff's goodwill, reputation, and business property. Presently before the Court are renewed motions by intervening-defendant Keith Maydak, appearing pro se, for leave to intervene in this action and to dismiss the complaint for lack of a "jusitfiable" controversy, as moot, and for failure to name the real party in interest. Maydak previously moved this Court to intervene and dismiss on May 18, 2001, but the Court declined to decide Maydak's motions because there were numerous disputes of fact that required further discovery between the parties. The background of this case is incorporated in this Court's two previous orders dated February 15, 2002 ("2002 Order") and March 8, 2003 ("2003 Order"), familiarity with which is presumed. The relevant history and facts are repeated for the purpose of addressing the instant motions.

I. BACKGROUND

  A. Procedural History

  On or about June 9, 1997, the defendants registered the domain name "ups.net" with InterNIC through Network Solutions, Inc. ("NSI"), which handles domain name registration services for InterNIC. The plaintiff did not license or authorize the defendants to use the mark UPS and did not authorize the defendants to register the name "ups.net."

  UPS filed an amended complaint on January 26, 2000. In an order dated May 18, 2000, the Court granted a motion by UPS to deposit the original NSI Registrar Certificate, which registered the domain name "ups.net", into the Registry of the Court. The Court's order provided, among other things, that this deposit has the effect of tendering to the Court complete control and authority over the registration of the "ups.net" domain name registration record. The order further directed NSI to maintain the status quo with respect to the domain name, which is currently on "hold", until temporary or final order of this Court.

  On June 22, 2000, the Court received an affidavit of service stating that on May 31, 2000, Gianfranco Mitrione served copies of, among other things, the amended summons and complaint on: (1) The Net, Inc., at 1344 Broadway, Suite 211, Hewlett, New York, 11557; and (2) The Net, Inc., c/o Randy Epstein, 7333 Ashley Shores Circle, Lake Worth, Florida, 33467. In a motion dated March 5, 2001, UPS requested that the Court enter a default judgment against the defendants pursuant to Rule 55 of the Federal Rules of Civil Procedure.

  In a letter dated March 13, 2001, Keith Maydak ("Maydak") informed the Court that, (1) he is the proprietor of The Net; (2) he was willing to accept service on behalf of The Net; (3) he wished to appear on behalf of The Net; (4) he had learned of the lawsuit from a third party; (5) he had not received any of the papers that had been filed in the case; and (6) he wanted to file a motion to dismiss the complaint on the ground that the plaintiff failed to properly serve copies of the summons and complaint. On March 26, 2001, the Court received a "Notice of Appearance for The Net, Inc., and John Doe 1." The notice states, "Defendant The Net, Inc., by and through it sole proprietor, Keith Maydak, sued as John Doe I, pro se, notifies the Court that the parties that they appear specially in this action as defendants to challenge sufficiency of service and personal jurisdiction." The notice also sets forth the defendants' address as 500 Lincoln Highway, N. Versailles, PA 15137. In addition to the Notice of Appearance, the Court received a motion from Maydak to strike the default that had been entered against The Net.

  In the 2002 Order, the Court granted Maydak's motion to vacate the default judgment because it found that, (1) The Net's default was not willful; (2) setting aside the default would not prejudice UPS; and (3) The Net had a meritorious defense. In the 2003 Order this Court declined to decide Maydak's motion to intervene and dismiss because there were numerous disputes of material fact and contradictions between the two parties. This Court directed the parties to proceed with discovery to determine Maydak's involvement with ups.net.

  On June 14, 2004 Maydak filed the instant renewed motion to intervene and dismiss, stating the following reasons: (1) the plaintiff continues to allege that Maydak does not own The Net; (2) no motion to join Michael Sussman and Randy Epstein has been lodged; and (3) the plaintiff has not amended the complaint to name any other party or clarify the identities of the John Doe defendants. Maydak also requested that "[i]f this Court finds that The Net does not constitute a proprietorship of Maydak, he should be granted intervenor status to defend his rights in this case."

  In response, the plaintiff objects to the motion of Maydak to intervene, contending that Maydak has not produced a shred of credible evidence that supports his claim that he has an interest in either the named defendant, The Net, or the underlying property, the ups.net domain name. In addition, the plaintiff submits numerous exhibits supporting its contention that Maydak has no connection to The Net.

  B. Factual Background

  According to the plaintiff, discovery has revealed the following concerning the domain name ups.net. In 1997, Randy Epstein, using his email address, repstein@host.net, emailed a registration request for the domain name ups.net to hostmaster@internic.net. The address provided on the registration was identical to the address of a mail box Epstein rented at 1344 Broadway, Hewlett, New York. In addition, an invoice for ups.net dated May 10, 1999 lists SUCK, another internet entity owned and controlled by Randy Epstein as the billing contact with the same Hewlett, New York address.

  In addition, UPS contends that the content that appeared on ups.net was identical to the content posted on another website, NASA.COM, which Epstein registered and owned. In support of its position, the plaintiff submits an exhibit which contains a photocopy of the content posted on ups.net. A second exhibit contains an article posted on www.wired.com/news/politics that describes the content of the NASA.COM web site. The article describes that NASA.COM had "a photo of Mike Tyson nuzzling Evander Holyfield and the caption `Hey ...


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