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In regards to you [sic] letter dated March 16, As an employee of Standing Stone Media, it was not my responsibility and I did not have the authority to register the name Indiancountrytoday.
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The law does not exist to protect business [sic] from their own poor management. As a further example; as of this date March 24, , Standingstonemedia. I could register both those names now, but Standing Stone is more specific to the Oneida Nation and I am not interested in it. It quickly became apparent that many domain names with Indian, Native and Aboriginal have been taken.
All versions of Indian Country. I searched Indiancountrytoday and found all three were available. I bought these names for my own business interests and I have no intention of selling them.
Morrisseau resides or claims to reside in Ontario, Canada. Morrisseau another e-mail at the above-referenced address advising him that the lawsuit referenced in its prior correspondence had been commenced and that the firm was "now moving for summary judgment directing register. Morrisseau from the same address stating that the subject domain names were no longer "in [his] ownership.
Attached to the e-mail was various e-mail correspondence to Mr. Specifically, Congress found that cyberpiracy could be damaging to businesses in a number of ways: The ACPA is comprised of two avenues for pursuing defendants in trademark actions.
The first, 15 U. The second, 15 U. Paragraph 2 further provides in subsection C: In an in rem action under this paragraph a domain name shall be deemed to have its situs in the judicial district in which i the domain name registrar, registry or other domain name authority that registered or assigned the domain name is located; or ii documents sufficient to establish control and authority regarding the disposition of the registration and use of the domain name are deposited with the court.
Plaintiff concedes that while it has not filed this action in the judicial district in which Register. Consequently, plaintiff asserts it is entitled to assert in rem jurisdiction over the domain names in the Northern District of New York under the alternative jurisdictional basis provided in subsection d 2 C. However, all courts which have examined the question of whether 15 U. Com, WL S. In both cases, the courts were faced with domain registrars located in a different state than the chosen forum.
Otherwise ACPA litigants would be free to commence actions in a jurisdiction of their choosing despite the absence of any connection to the res. The present case is distinguishable from those cited above in the sense that New York has four judicial districts and thus plaintiff herein chose the correct state in which to sue.
However, the in rem provision of the ACPA does not provide that an action may be commenced in either the "state" or "jurisdiction" where the registrar is located. Rather, the statute explicitly states that an in rem action is limited to the judicial district in which the domain name registrar is located. A contrary reading of the statute would result in enjoyment by ACPA litigants in New York of a benefit unavailable to litigants in states having only one judicial district.
In Cable News Network, L. This section does not confer in rem jurisdiction; instead, by its terms, it merely provides that a domain name has a "situs" where the domain name registrar, registry, or other domain name authority is located and where "documents sufficient to establish control and authority regarding the disposition of the registration and use of the domain name are deposited with the court.
Moreover, were both Section d 2 A and Section d 2 C to be read as providing in rem jurisdiction, all of Section d 2 A and portions of Section d 2 C would be rendered redundant, an impermissible result.
See FleetBoston, F. Courts generally avoid interpreting statutes in such a way as to make any part redundant.
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See United States v. More recently, the court in Ford Motor Co. Plaintiff argues that the decisions by the courts in Mattel, Inc. Although arguably a poorly drafted statute with provisions which may be deemed ambiguous, the Court finds nothing superfluous or meaningless in failing to view subsection d 2 C of the ACPA as an alternative basis for in rem jurisdiction.
As the court noted in FleetBoston: The statute simply does not make linguistic sense if it is read to allow actions to be brought either in the judicial district in which the registrar, registry, or other authority is located or in any judicial district that the plaintiff chooses to bring the action. Subparagraph C states that it pertains to "an in rem action brought under this paragraph," signifying that it pertains to the same action specified in subparagraph A. The procedure described in subparagraph D provides the mechanism by which the domain name can be deposited in the court in the judicial district designated under subparagraph A.
It also relates to "in an in rem action under this paragraph," and continues by specifying that the procedure is commenced when a plaintiff sends the domain name registrar, registry or other authority "written notification of a filed, stamped copy of a complaint filed by the owner of a mark in a United States district court under this paragraph Thus, the situs of the domain name can only be transferred after a complaint has been filed; the complaint can only be filed in the judicial district in which the registry, registrar, or other authority is located.
Consequently, the situs of the domain name will likewise have to end up in one of those places, despite the language of 2 C ii which seems to suggest that it could be transferred elsewhere. In addition to dictating the situs of the domain name during the pendency of an action under the ACPA, subsection d 2 C may also be read as a savings provision in the event that the registrar of a domain name moves out of the judicial district where the action was commenced, goes out of business or sells its interests to another company in the time period between the filing of the complaint and the deposit of the required certificates of registration.
Plaintiff cites Caesars World, Inc. Moreover, plaintiff asserts that Morrisseau had "significant connections" with the Northern District of New York during his employment with plaintiff in Canastota, New York. To wit, plaintiff argues that Morrisseau worked in this District, failed to register the domain names in the course of his employment and then fled the jurisdiction to Canada. Even assuming that subsection d 2 C is a venue provision, plaintiffs argument fails on multiple levels.
In the first instance, Caesars World, Inc. Thus, in rem jurisdiction in that case was based on subsection d 2 A. See Cable News Network, F. More particularly, in an ACPA in rem action, it is not necessary that the allegedly infringing registrant have minimum contacts with the forum; it is enough As a further matter, Morrisseau is not being sued in the Northern District for failing to comply with the terms of his employment contract with plaintiff, but rather, for actions he took once he was residing in Canada.
Based on the plain meaning of the statute and its unanimous interpretation by federal courts, plaintiff cannot maintain the present ACPA action in this District.
Transfer of the Action Plaintiff requests that in the event the Court determines that in rem jurisdiction is lacking in the Northern District of New York, it exercise its discretion in transferring the case to the Southern District where Register. The federal statute governing cure or waiver of procedural defects provides: A court has considerable discretion in deciding whether to dismiss or transfer.
Time Warner, F. Section a has been interpreted to authorize a transfer even where the transferor court does not have personal jurisdiction over the party contesting jurisdiction. Song of Norway, F. Art-Pak Clip Art Serv. Rather, a court is only required to have subject matter jurisdiction over the matter.
Anglers Cove Condominium Assoc. In the present case, subject matter jurisdiction is satisfied because plaintiff sues under a federal statute.
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Based thereupon, the Court deems transfer of this action is warranted "in the interest of justice. Indeed, Congress was disturbed by the increasing number of individuals who registered domain names in violation of trademark rights and then eluded trademark enforcement because either they could not be found or the trademark owner was unable to acquire in personam jurisdiction over them.
Accordingly, in enacting the ACPA, Congress included an in rem provision to allow remedies for violations of the statute by anonymous or "absent cybersquatters. Consequently, the ACPA specifically allows a trademark owner to file an action against the domain name itself when the trademark owner cannot locate the domain name owner or cannot obtain in personam jurisdiction over him.
D i The remedies in an in rem action under this paragraph shall be limited to a court order for the forfeiture or cancellation of the domain name to the owner of the mark.