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UPS v. The Net

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Citation Edit

United Parcel Serv. of America, Inc. v. The Net, Inc., 185 F.Supp.2d 274 (E.D.N.Y. Feb. 15, 2002) (full-text).

Factual Background Edit

Plaintiff owns the mark UPS for package-delivery services. Defendant registered the domain name "" and connected it to a website featuring banner advertisements and links to pornographic websites.

Plaintiff sued for trademark infringement, dilution, and cyberpiracy under the ACPA.

Trial Court Proceedings Edit

The court granted plaintiff's motion for default judgment because defendant failed to respond to the complaint. Shortly thereafter, an individual named Keith Maydak informed the court that he was the proprietor of the defendant, that he would accept service on behalf of defendant, that he did not receive any service documents, and that he intended to file a motion to dismiss for failure to properly serve defendant. The court denied Maydak's motion, however, because he was not an attorney and could not represent a corporation like defendant. But the court withheld entry of judgment for 30 days so that Maydak could retain counsel.

Maydak then moved the court for reconsideration of its order directing defendant to appear through counsel, to compel service of the complaint on himself as the real party in interest, for leave to intervene in the case, and to dismiss the complaint as moot because defendant no longer owned the domain name "" Maydak argued that he should not be required to retain counsel because his business was a sole proprietorship and not a corporation. The court granted defendant's motion for reconsideration because it overlooked Maydak's allegation that defendant was not a corporation when it denied Maydak's earlier motion. Because defendant was a sole proprietor, he was entitled to represent himself.

The court next granted Maydak’s motion to vacate the default judgment in favor of plaintiff. Although Maydak argued that he was never served with the complaint and he should have been served at a Pennsylvania address, certain facts suggested that defendant tried to avoid service. The court held, however, that defendant set forth a meritorious defense sufficient to warrant vacating the default. Specifically, Maydak argued that the relief sought by plaintiff was no longer available because the domain-name registration expired and a third party currently owned the domain name. And vacating the default did not prejudice plaintiff because the litigation had not significantly advanced and plaintiff acted only when the court threatened to dismiss the action for failure to prosecute. In the interest of justice, the court granted defendant's motion to compel service of process. The court denied Maydak's motion to dismiss the complaint as moot without prejudice and with leave to refile to give plaintiff an opportunity to respond to the merits of those motions.

Source Edit

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