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Civil Remedies
of foreign sites who believe they are not Predatory Foreign Websites of access to US users. 180 But
de-indexing does not remove access to the site in question, since a site can always be found by
entering its URL or IP address directly into a browser. Nevertheless, routinely allowing orders
seeking de-indexing would be a step beyond the current state of US law and would go beyond a
“follow the money” approach to addressing the Predatory Foreign Website problem. For these
reasons, the IPL Section was unable to reach consensus in support of legislation allowing such
orders.
Other types of orders against search engines are also possible. For example, one could imagine an
order requiring a search engine to refuse to return search results for the terms “knockoff” or “fake”
followed by the name of a trademarked product. However, as Google’s counsel testified before the
House Judiciary Committee Subcommittee on Intellectual Property, Competition and the Internet,
it is very difficult for search engines to proactively block terms like “knockoff” or “fake” to
prevent sites selling counterfeit goods from appearing in search results, because such terms have
legitimate uses. 181 The IPL Section agrees that such orders raise a number of complicated issues. As
such, the IPL Section is unable to recommend that they be authorized at this time.
(4) DNS Registrars
Court orders could require U.S.-based DNS registrars to revoke the registration of a particular
domain name used by a Predatory Foreign Website, or otherwise to deprive the Predatory Foreign
Website of the right to operate the registered domain, and to redirect users who visit the domain to
a notice that the domain was no longer controlled by the Predatory Foreign Website. This has been
done as early as in a TRO, as demonstrated in Chanel, 182 True Religion, 183 Philip Morris, 184 Deckers,
and Hermès. 185 Because the vast majority of users access websites through domain names, not IP
addresses, a DNS redirect effectively serves as a “kill switch,” taking the entire website offline for
most users (except for those accessing directly through IP addresses). 186 There is no way for a DNS
redirect to only take down the infringing aspects of a website—it is an all-or-nothing proposition
and as such serves as a blunt instrument. 187
DNS redirects may also introduce vulnerabilities into the Internet security system, thus making
them less appealing from a technical perspective. 188
A distinction must be drawn between generic top-level domains whose registries are maintained by
U.S. companies, such as .com, .net, .org, .biz, and foreign country TLDs such as .ru, .se, .cn. Under
current law, domain names ending in one of the U.S. top level domains can and have been seized
and redirected by court order, even when registered through a foreign registrar. 189
In the context of criminal counterfeiting and piracy enforcement, Immigrations and Customs
Enforcement (“ICE”) has taken down myriad websites found to provide substantial pirated content
or counterfeit products in the past several years. 190
As yet, no foreign country TLD has been the subject of a U.S. court order, largely because the
authoritative registries for foreign country TLDs are based abroad (and domain name redirects have
thus far been based on in rem jurisdiction over the U.S.-based primary domain name registrar, which
is inapplicable to foreign-based registrars such as those for foreign country TLDs). 191 In contrast,
the authoritative registry for .com domains is VeriSign, Inc., a public company based in Virginia.
Although the IPL Section recognizes that some courts have ordered DNS registrars like GoDaddy to
use DNS redirects, and does not criticize the issuance of such orders in those cases, because of the
many issues associated with such redirects, and because it is not a “follow the money” remedy, this
is another case where the IPL Section was unable to reach consensus that this remedy should be
routinely available to either private parties or governmental entities.
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