Ahmad Miski doesn't deny that he has no alter ego known as the "Libyan Embassy" or the "Embassy of Libya." Still, Miski made his case today in federal court in Washington that he has a legal right to keep domain names such as libyaembassy.com and embassyoflibya.org that he bought in the early 2000s.
Attorneys for Miski and the Libyan government, which sued Miski for trademark infringement and cybersquatting in 2006, made closing arguments this morning in a bench trial before U.S. District Judge Reggie Walton. The bulk of the trial concluded in February 2011, but the case was put on hold until October in light of last year's uprising in Libya.
It's an unusual case that presented novel questions to the court. One issue Walton asked about several times today was the extent to which now-lifted U.S. sanctions against Libya in previous decades might have affected that country's common law right to the trademark on phrases like "Libyan Embassy" or "Embassy of Libya."
Miski is executive director of the D.C.-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. The four domain names in question, which he bought in 2002 and 2003, divert users to his business Web site.
A lead counsel for the Libyan government, local solo practitioner Christopher Mitchell, said in his closing remarks that the evidence at trial showed that the “Embassy of Libya” was a distinctive name that the Libyan government had claim to since the early 1950s. He said Miski’s use of the domain names created confusion, comparing the situation to a consumer who buys Coca Cola but gets Pepsi instead.
Previous sanctions did halt commercial business between the United States and Libya, Mitchell said, but that didn’t mean the Libyan government abandoned the marks in question. The fact that the Libyan government maintained a building in Washington, even if it couldn’t function as an embassy, and continued to offer limited services from a mission office in New York, were signs that the Libyan government never intended to give up the mark.
Under the federal laws in question, Mitchell said, the “Libyan Embassy” and “Embassy of Libya” are “distinctive” names that refer to one thing only – the Embassy of Libya. “Mr. Miski is not the Embassy of Libya,” he said.
Miski’s laywer, Eric Menhart of Washington’s CyberLaw, said in his closing arguments that the Libyan government presented little evidence of its legal claim to the mark beyond a “mere preference,” noting that it also referred to its Washington presence in the past as a “bureau.”
Menhart skirted Walton’s question of whether, by Menhart’s logic, other embassies couldn’t claim a similar common law right to names such as the “British Embassy.” Menhart said it would depend on the embassy in question’s public reach and efforts to make the name recognizable.
On the sanctions issue, Menhart said he did think that the sanctions were relevant because the Libyan government stopped using the word “embassy” to describe its physical presence in the United States. He said he didn’t think the United States intended to protect the Libyan government’s trademark rights when it levied sanctions on that country starting in the 1970s.
“Even if they had a mark, it’s abandoned,” he said. Menhart also refuted the plaintiff’s claim that Miski bought the domain names in bad faith to exploit them for commercial profit; Menhart said Miski bought them to stop others from buying them to post anti-Arab messages, and then used them for a business that supported Libya.
Miski is also being represented by Kamal Nawash of the Nawash Law Office in Washington. The Libyan government is also being represented by J.P. Szymkowicz of Washington’s Szymkowicz & Szymkowicz.
Walton did not say when he expected to make a decision, except that he would try to rule as soon as possible.