Order in Economic Solutions, Inc. v. ICANN
(13 November 2000)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

This matter is before the Court on plaintiff's motion for a temporary restraining order ("TRO"). A hearing was held on the matter in chambers on Thursday, November 9, 2000. Counsel for both parties were present and one attorney representing defendant participated by telephone. Both parties have been permitted to submit memoranda by 10:00 a.m. on Monday, November 13.

Defendant Internet Corporation for Assigned Names and Numbers ("ICANN") is a California non-profit corporation with certain administrative responsibilities for technical management of the Internet, derivative of the U.S. Department of Commerce. Plaintiff Economic Solutions, Inc. has entered into a contract with the Central American country of Belize to attempt to commercially market Internet domain names ending with ".bz," Belize's country code top level domain ("TLD") suffix. Aware that ICANN's annual board meetings are to occur this week, plaintiff seeks a TRO enjoining ICANN from establishing a new generic TLD of ".biz," ".ebiz" or any other designation which would be confusingly similar to the ".bz" TLD.

The issuance of temporary injunctive relief is governed by consideration of four well-known factors: (1) the threat of irreparable harm to the plaintiff; (2) the balance of harms between the parties as to granting the injunction or not granting the injunction; (3) the plaintiff's probability of success on the merits; and (4) the public interest. Dataphase Systems, Inc. v. CL Systems, Inc., 640 F.2d 109, 112 (8th Cir. 1991). Based upon the record before it, the Court is not persuaded that these factors, as they exist in this case, warrant the extraordinary remedy of temporary injunctive relief.

The weightiest factor in the Court's determination is the plaintiff's probability of success on the merits. For several reasons, this factor militates against the issuance of a TRO. At this time, plaintiff has not shown a strong likelihood of success either on the threshold issue of personal jurisdiction or on the merits of its three causes of action. The bulletin-board function of defendant's website does not create full-fledged interactivity and does not strongly establish any particularized Missouri contact, much less a purposeful contact by defendant (rather than to defendant by others) relating to this litigation. Defendant's allegedly tortuous conduct damaging plaintiff in Missouri is also proffered as a basis for long-arm jurisdiction, such that the likelihood of success on the merits of the various tort claims becomes relevant to the jurisdictional analysis. The conduct challenged in the Lanham Act and unfair competition claims is prospective only and has not yet occurred, and so appears not to support a finding of personal jurisdiction. Neither has plaintiff demonstrated a likelihood of success on the merits of the Lanham Act and unfair competition claims, given the uncertain status of the claimed property rights in the ".bz" domain designation, the prospective and uncertain nature of possible establishment or use of assertedly competing TLDs, and questions concerning whether defendant's role in the feared events could render it, as opposed to others actually employing the ".biz" or ".ebiz" designations, liable for false designation or unfair competition. As to plaintiff's tortuous interference claim, at this time defendant's proffered grounds for declining to take the administrative actions sought by plaintiff do not suggest a likelihood of success on the merits of plaintiff's claim. Furthermore, the tortuous interference claim and the allegations underlying it are unrelated to the substance of the TRO plaintiff seeks.

Whether plaintiff is imminently threatened with irreparable harm also appears questionable at this time. Contrary to plaintiff's initial understanding, ICANN represents that it has no authority to implement new TLDs, and that instead, it merely makes recommendations to the Commerce Department, which retains the ultimate authority to make such decisions. ICANN further represents that before any such recommendation would be made, ICANN would have to successfully negotiate a fairly complex agreement with the selected applicant. Plaintiff is overtly skeptical of these representations, but is at this juncture unable to disprove them. The possibility that, even before the ultimate establishment of an ".biz" TLD, a selected applicant might assert rights adverse to those claimed by plaintiff would not, in the Court's view, constitute irreparable harm. The balance of harms as between the parties appears to the Court to be fairly balanced, and the public interest slightly favors denial of the TRO so as to enable a full and encumbered consideration of the advisability of new TLDs based upon the needs and interests of the entire Internet community.

Upon careful consideration and for all the foregoing reasons, the Court is not persuaded to issue the TRO sought by plaintiff at this time. Accordingly,

IT IS HEREBY ORDERED that plaintiff's motion for temporary restraining order is denied.

IT IS FURTHER ORDERED that plaintiff's motion for leave to file memorandum in excess of 15 pages is granted.

IT IS FURTHER ORDERED that defendant is granted leave to file its memorandum in opposition to the motion for temporary restraining order in excess of 15 pages.

IT IS FURTHER ORDERED that plaintiff's request for leave to substitute corrected pages is granted.

IT IS FURTHER ORDERED that defendant's motion for leave to file a supplemental memorandum is granted.

Dated this 13th day of November, 2000.

/s/ Donald J. Stohr________
United States District Judge