Plaintiff, a group of over 200 Italian producers of “Parma Ham,” owns the certification mark PARMA HAM for ham products. Defendant Chris Truax created defendant Domain Name Clearing Company (DNCC) in 1997 for the purpose of “domain name clearing” and that same year DNCC registered the domain name “parmaham.com.” Plaintiff tried to contact DNCC by phone and e-mail in 2000 regarding the domain name, but received no response. Eventually, plaintiff was able to contact Truax by mail. Truax responded by indicating that DNCC would negotiate for the transfer of the domain name. Plaintiff offered $9,000 for the domain name, which defendants rejected. Plaintiff then sued defendants under the ACPA. Plaintiff made unsuccessful attempts to serve DNCC, through Truax as its registered agent, at various addresses, but failed on many occasions. While evading service, Truax formed a new company INPG, and DNCC transferred the domain name “parmaham.com” to INPG. Plaintiff moved the court to order substitute service on the California Secretary of State, which the court granted. Upon learning of the transfer of the domain name, plaintiff also added INPG to the suit. None of the defendants responded to the complaint or appeared in court. Plaintiff moved for default judgment, which the court granted. The court ruled that defendants’ failure to respond to the complaint was an admission of all allegations such that defendants willfully and knowingly violated the ACPA by registering and using “parmaham.com.” The court also found the case to be exceptional under the ACPA and awarded attorney’s fees of $24,258.
Truax appealed the decision, arguing that plaintiff had not complied with California’s requirements for effective service. The Ninth Circuit dismissed the appeal, however, because Truax failed to first move the district court to set aside the judgment as required by Federal Rules of Civil Procedure 55(c) and 60(b).