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October 17, 2011
Zoe Tillman
The National Law Journal

A fight over 'Libya'

The revolution complicates a cybersquatting case in Washington.

October 17, 2011

As violence between rebels and government forces in Libya escalated in February, the conflict found its way to an unusual place - a cybersquatting case in Washington federal court.

Since 2006, the Libyan government has been angling for possession of four Internet domain names featuring the words "Libya" and "embassy." In the only known open case nationwide in which Libya is a plaintiff, the Libyan government sued the owner of the domains, businessman Ahmad Miski, in U.S. District Court for the District of Columbia, for online trademark infringement.

It's a case that, from the beginning, has presented a rare set of circumstances and novel legal questions. Did the Libyan conflict warrant a stay in the case? Did the Libyan government lose any trademark protection it might have had when the United States severed diplomatic ties in February? Attorneys and U.S. District Judge Reggie Walton have been grappling with these questions against thin legal precedent.

Following a bench trial in mid-February, Libya's lead counsel, J.P. Szymkowicz of Washington's Szymkowicz & Szymko­wicz, asked for a stay, citing the growing instability facing his client at home. Walton agreed in April, citing the sanctions levied against Libya by the United States (along with the United Nations and European Union) in late February. With money damages and property at stake, he wrote, his hands were tied.

"Regardless of whether this Court found in favor of the plaintiff or the defendant, the Court could not grant the requested relief," Walton wrote.

The United States has since resumed relations with Libya through the Trans­itional National Council. The nation's Washington embassy reopened in August, and Ambassador Ali Suleiman Aujali, who resigned in protest of Moammar Gadhafi's regime in February, received fresh diplomatic credentials from the White House in September to represent the new government.

"Now that diplomatic relations have resumed, there is no legal impediment for the Court to make such an award," Aujali said via e-mail, referring to the domain names at issue.

POINT OF 'PRINCIPLE'

Regardless of what the embassy wants, Miski "feels it's a principle issue for him, for the most part," said Miski's attorney, Kamal Nawash of the Nawash Law Office in Washington. "He feels he owns [the domain names], he believes under the law he's entitled to them, and he doesn't believe that the Libyan embassy or anybody else can come and take them away from him."

Violence in Libya persists and the sanctions haven't been fully lifted, so it is unclear whether Walton would reopen the case when the attorneys appear for a conference on Oct. 20. In yet another twist, Nawash said he was weighing a request for a dismissal because the entity that sued his client, the Libyan government under Gadhafi, no longer exists.

"Now the name of the ­country changed, the diplomatic mission changed," Nawash said. "If they want to pursue it, they need to refile."

According to his trial testimony, Miski bought the four domain names - embassyoflibya.org, libyaembassy.com, libya­embassy.org and libyanembassy.com - in 2002 and 2003.

Miski is executive director of the Washington-based Arab American Chamber of Commerce, which serves as a type of notary for U.S. exporters sending commercial and legal documents to Arab countries. He claimed that he bought the domain names so they couldn't be used by anyone intent on posting anti-Arab messages, but then decided to use each domain's unique Web page to advertise the chamber's services. The domains now send users directly to the chamber's main site.

From 1979 until 2006, Libya featured prominently on the U.S. list of state sponsors of terrorism. Its government maintained a mission to the United Nations in New York, but no embassy in Washington until the United States re-established relations with Libya in summer 2006.

Libya sued Miski in November 2006, demanding the domain names and between $400,000 and $1 million in damages. Miski filed counterclaims worth $2 million, accusing the Libyan embassy of refusing to work with his clients in certifying documents unless he handed over the domain names and a cut of his fees. Walton found that Libya couldn't assert sovereign immunity against the counterclaims, since it had filed first.

The case went to a two-day bench trial before Walton on Feb. 16. Nawash argued that the Libyan government referred to its diplomatic mission in Washington as the "Libyan Bureau," and had never laid legal claim to the terms "Libyan Embassy" or "Embassy of Libya." An embassy representative testified that the government in fact had referred to the mission both as a "bureau" and an "embassy," and Szymkowicz argued that states have a right to protect their emblems.

As attorneys worked on post-trial briefs, Szymkowicz asked for a stay in March, arguing that the unstable political situation "made it impossible for…trial counsel to adequately represent the interests of the Libyan people."

Nawash and co-counsel Eric Menhart of the Washington-based law firm CyberLaw countered that events in Libya at the time had nothing to do with a cybersquatting dispute dating to the early 2000s. Walton, pointing to the executive order freezing transactions with Libya, granted the stay.

Steven Perles of Washington's Perles Law Firm wasn't directly involved in the case but has sued overseas governments accused of state-sponsored terrorism. He said that, although there was no direct precedent guiding whether political instability abroad was reason to delay litigation in the United States, he often gives opposition attorneys leeway.

"I've been involved in litigation where the attorneys for the foreign government say, 'The state can't make decisions,' " Perles said. "It's an inherent problem in representing governments: 'We need more time.' "

Walton, in his order, offered some guidance about what it might take to lift the stay. He told the parties to let him know "if the situation in Libya stabilizes or the executive order is revoked prior to the scheduled hearing date."

Szymkowicz, in an e-mail, said he believes the recognition of the new Libyan government and resumption of diplomatic relations was enough to merit moving forward. Menhart and Nawash agreed, although Menhart was wary of making any predictions.

"A day or two prior [to the hearing] is when I'll do my fact checking to make sure things are still the way I've seen them," he said. "It has changed, at times, literally overnight."

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