STEPHAN SCHMIDHEINY, An Individual v. Steven Weber, d/b/a DOMAINSALE

PRECEDENTIAL
Filed February 11, 2003
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-1668
STEPHAN SCHMIDHEINY,
An Individual,
Appellant
v.
STEVEN WEBER, d/b/a DOMAINSALE
and FAMOLOGY.COM, INC.;
FAMOLOGY.COM, INC.
ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Civil No. 01-cv-00377)
District Judge: The Honorable Charles R. Weiner
Argued October 31, 2002
BEFORE: NYGAARD and WEIS, Circuit Judges, and
IRENAS,* District Judge.
(Filed: February 11, 2003)
_________________________________________________________________
* The Honorable Joseph E. Irenas, Senior District Judge for the United
States District Court for the District of New Jersey, sitting by
designation.
Neil E. McDonell, Esq. (ARGUED)
Dorsey & Whitney
250 Park Avenue
New York, NY 10177
Counsel for Appellant
Anthony J. DeGidio, Esq. (ARGUED)
3738 Treelawn Drive
Toledo, OH 43614
Counsel for Appellees
OPINION OF THE COURT
NYGAARD, Circuit Judge.
The District Court granted summary judgment to
Appellees Steven Weber and Famology.com, Inc., holding
that the registration of schmidheiny.com is not covered by
the Anti-cybersquatting Consumer Protection Act, 15 U.S.C.
S 1129 (2002), because the domain name was initially
registered by Steven Weber personally on February 28,

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1999, before the Act took effect on November 29, 1999.
Because we conclude that a subsequent registration by
Famology.com, Inc. in June 2000 is an action within the
purview of the Anti-cybersquatting Act, we will reverse.
With a net worth of $3.1 billion, Appellant Stephan
Schmidheiny has been ranked among the wealthiest
individuals in the world by Forbes magazine for the
past three years. The World’s Billionaires, FORBES,
http://www.forbes.com/2002/02/28/billionaires.html. In
November 2000, Appellee Steven Weber sent an email 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 Appellee
Famology.com, Inc. Weber is the President and Treasurer of
Famology.com, Inc., and is listed as the administrative and
technical contact for the schmidheiny.com domain name.
Schmidheiny commenced this action, alleging that
Appellees violated the Anti-cybersquatting Act.
Domain name registrars are organizations that keep
track of Internet domain names and ensure that only one
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party controls a specific domain name during any given
period. See Jonathan Weinberg, ICANN and the Problem of
Legitimacy, 50 DUKE L.J. 187, 216-17 (2000). To register a
domain name, the party interested in the exclusive use of
the domain name, the registrant, must contact a registrar,
and enter into a contractual agreement with the registrar.
Id. In exchange for the right to use the domain name for a
fixed period of time, the registrant pays a certain sum of
money and agrees to certain other conditions. Id .
According to the Anti-cybersquatting Act, "[a]ny person
who registers a domain name that consists of the name of
another living person, or a name substantially and
confusingly similar thereto, without that person’s consent,
with the specific intent to profit from such name by selling
the domain name for financial gain to that person or any
third party, shall be liable in a civil action by such person."
15 U.S.C. S 1129. The purpose of the Anti-cybersquatting
Act is to "curtail one form of ‘cybersquatting’--the act of
registering someone else’s name as a domain name for the
purpose of demanding remuneration from the person in
exchange for the domain name." 145 CONG. REC. S14715
(daily ed. Nov. 17, 1999) (statement of Sen. Lott).
The Anti-cybersquatting Act provision at issue applies to
"[a]ny person who registers a domain name that consists of
the name of another living person . . . with the specific
intent to profit from such name by selling the domain name
for financial gain to that person or any third party." 15
U.S.C. S 1129. The provision does not define what a "person
who registers" must do to fall within the scope of the
statute, and the legislative history does not provide an
explanation.

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The District Court decided that the registration of
schmidheiny.com was not covered by the Anti-
cybersquatting Act because the domain name was first
registered several months before the date when the statute
became effective, and "the statute references only
‘registrations,’ not ‘reregistrations.’ " The District Court
stressed that "Congress made a clear legislative choice that
[the Anti-cybersquatting Act] is not to be applied
retroactively," and focused on the "creation date" of
schmidheiny.com--the date when the domain name was
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initially created. "[T]o consider a re-registration to be a
registration," the District Court stated, "would enfog the
bright line date established by the Act for actions under
S 1129." According to the District Court,"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."
We disagree. 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."
The words "initial" and "creation" appear nowhere in
S 1129, and Congress did not add an exception for "non-
creation registrations" in S 1129(1)(B). See United States v.
Johnson, 529 U.S. 53, 58 (2000) (explaining that when
Congress provides exceptions in a statute, a court should
infer that Congress considered the issue of exceptions and
limited the exceptions to the ones set forth). The District
Court’s rationale that "if Congress chose to treat re-
registrations as registrations, it could have used words
appropriate to impart that definition," is not a sufficient
reason for courts to infer the word "initial." Instead, we
conclude that the language of the statute does not limit the
word "registration" to the narrow concept of"creation
registration." See Sweger v. Chesney, 294 F.3d 506, 516
(3d Cir. 2002) (holding that if the language of a statute is
plain, we need look no further to ascertain the intent of
Congress).
Here, in March 2000, the named registrant for
schmidheiny.com was "Weber Net" and the domain name
registrar was Network Solutions, Inc. App. 373 atP 46;
App. 143. In June 2000, a new registrant, Famology.com,
contractually bound itself in a new registration agreement
with a new registrar, Internet Names Worldwide, to secure
the schmidheiny.com domain name for a new one-year
period. App. 373-74 at PP 46, 48-52; App. 143; App. 227;
App. 173 at P 11; App. 229. We hold that the word
"registration" includes a new contract at a different
registrar and to a different registrant. In this case, with
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respect to Famology.com--that occurs after the effective
date of the Anti-cybersquatting Act.
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. We do
not believe that this is the correct construction of the Anti-
cybersquatting Act. We are therefore satisfied that
Famology.com, Inc. engaged in a "registration" that is
covered by the Anti-cybersquatting Act. We will reverse, and
remand the cause to the District Court for it to conduct
further proceedings consistent with this opinion.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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