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Wang v. Societe Du Figaro S.A.

United States District Court, S.D. New York

June 26, 2018

RAYMOND WANG, Plaintiff,

          OPINION & ORDER

          Paul A. Engelmayer United States District Judge

         Plaintiff Raymond Wang, proceeding pro se, brings this action seeking injunctive, monetary, and declaratory relief for claims arising from alleged cybersquatting and reverse domain-name hijacking in violation of the Anticybersquatting Consumer Protection Act ("ACPA"), Pub. L. No. 106-113, 113 Stat. 1536 (1999) (codified in scattered sections of Title 15 of the United States Code). On December 29, 2016, this Court entered default judgment as to liability against the three defendants: Societe du Figaro, Nameshield, and Anne Morin (together, "Figaro"). The Court then referred the case to Magistrate Judge James L. Cott for an inquest into damages, if any, and a report and recommendation as to whether Wang is due any other relief. Wang and defendants (who appeared after default judgment had been entered) made submissions on these issues.

         On January 26, 2018, Judge Cott issued a detailed, thoughtful, and persuasive Report and Recommendation (the "Report"). He recommended that Wang not be awarded injunctive relief or monetary damages, but that, subject to a possible issue of mootness, he be awarded limited declaratory relief. On February 9, 2018, Wang submitted his objections to the Report. Dkt. 42 ("Objections").[1] On February 22, 2018, Figaro filed a response to Wang's Objections. Dkt 43 ("Def. Response"). On March 14, 2018, Wang filed a reply to defendant's response. Dkt 44 ("PI. Reply").

         For the reasons that follow, the Court adopts the Report in substantial part and dismisses Wang's remaining claims as moot.

         I. Background [2]

         On September 10, 2015, Wang registered the domain name <> with the domain name registrar Report at 1, 5; see Dkt. 2 ("Compl.") ¶¶ 8-9. Wang alleges that he registered that domain referencing the 1786 Mozart opera Le Nozze di Figaro, for purposes of creating "a general performance arts news and opera blog." Compl. ¶¶ 8-13. He alleges that he was unaware that the words "le figaro" also form the name of the French newspaper, Le Figaro. Id. ¶¶ 13, 15

         Defendant Societe du Figaro S.A. is a French corporation headquartered in Paris. Report at 2. Societe du Figaro owns and publishes Le Figaro, which defendants hold out as France's "premier daily general-interest newspaper." Id. Societe du Figaro owns several trademarks that include the words "Le Figaro" and more than 200 domain names that include variations on the terms "Le Figaro" or "Figaro." Id.

         On September 29, 2015, Nameshield, on behalf of Societe du Figaro, commenced an arbitral proceeding under the Uniform Domain-Name Dispute-Resolution Policy ("UDRP") against Wang. Report at 6. In its UDRP complaint, Societe du Figaro argued that the domain name <> was identical to its "LE FIGARO" trademark. Id. On November 9, 2015, the UDRP panel issued a decision finding that Wang had "no right or legitimate interests in the Domain Name and the Domain Name had been registered and used in bad faith" and directed that the domain name <> be transferred to Societe du Figaro. Id. at 8. The parties dispute whether the UDRP panel's order was effectuated such that <> was actually transferred from Wang to Societe du Figaro. Id. at 9; see Objections at 8.

         On November 30, 2015, Wang commenced this action by filing a complaint alleging that defendants violated the cybersquatting and reverse domain-name hijacking provisions of the Anticybersquatting Consumer Protection Act. See Compl. In his complaint, Wang sought a declaration that his use of the domain name was lawful, injunctive relief prohibiting the transfer of the domain name to the defendants, and damages caused by defendants' reverse hijacking. Compl. ¶ 2.

         On December 29, 2016, after defendants were served but failed to appear, this Court entered a default judgment in Wang's favor as to liability. Dkt. 18. The Court based its entry of default judgment on its independent review of Wang's Complaint, which, the Court concluded, had adequately pled facts supporting the exercise of subject-matter and personal jurisdiction. Id., at 4. The Court then referred the matter to Judge Cott for an inquest as to damages and/or other potential remedies. Dkt. 19.

         As Judge Cott recognized, however, a significant development had occurred during the pendency of his review: On July 10, 2017, a third party named Thomas Lextrait registered the "" domain name. Report at 10; see Dkt. 39. As Judge Cott noted in his January 2018 Report, that fact presented a substantial question of mootness as to the one area of relief, a declaration, to which Judge Cott found Wang otherwise entitled. Alerted by Judge Cott to that concern, the Court now finds that this development-the registration of the domain name by a third party-precludes granting declaratory relief.

         II. Discussion

         After a magistrate judge has issued a Report and Recommendation, a district court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). To accept the portions of a report to which no timely objection has been made, "a district court need only satisfy itself that there is no clear error on the face of the record." Acevedo v. Lempke, No. 10 Civ. 5285 (PAE) (HBP), 2014 WL 4651904, at *3 (S.D.N.Y.Sept. 17, 2014) (quoting King v. Greiner, No. 02 Civ. 5810 (DLC), 2009 WL 2001439, at *4 (S.D.N.Y. July 8, 2009)). When a timely and specific objection has been made, the court is obligated to review the contested issues de novo. Fed. R. Civ. P. 72(b)(3); Hynes v. Squillace, 143 F.3d 653, 656 (2d Cir. 1998). But when the objections simply reiterate previous arguments or make only conclusory statements, the court reviews the report and recommendation for clear error. Dickerson v. Conway, No. 08 Civ. 8024 (PAE) (FM), 2013 WL 3199094, at *1 (S.D.N.Y. June 25, 2013); see Kirk v. Burge, 646 F.Supp.2d 534, 538 (S.D.N.Y. 2009) (collecting cases). This is so even in the case of se petitioner. Cf. Molefe v. KLMRoyal Dutch Airlines, 602 F.Supp.2d 485, 487 (S.D.N.Y. 2009).

         Judge Cott's thorough Report recommends that the Court deny Wang the majority of the relief he seeks. The Report recommends, however, that the Court issue a declaratory judgment with respect to one of Wang's two reverse-domain name hijacking claims. Specifically, the Report recommends concluding that Wang established a claim under the ACPA only for reverse domain-name hijacking, pursuant to 15 U.S.C. § 1114(2)(D)(v). Under that provision, which provides for equitable and declaratory relief but not damages, the Report recommends granting Wang a subset of the declaratory relief he seeks: to wit, a limited declaration that Wang's use of the <> domain name was ...

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