litigated and decided i was important i think this court to know that this case is still going on in france the french supreme court has the matter under advisement and a decision is expected later this year sent the french appellate decision to web dot com which is at the time was the registrar of the demain name it issue pursuant to the registration agreement with the with the rights respectfully your honor i don't think so i think this de france decision was and pressure action was based on france's assertion of its sovereign identity right it is not it is not something that a private point of could have done net gets at the key issue that the supreme court teaches has to be resolved in any f i f a except exemption determination and that is what is actual injury what is the act of actually injury to play into what is the all of the a legit injuries that the player who discusses it is it's a complaint if you accept sorry go ahead now i was just going to ask you so this case seems to me to be a real intersection of comedy concerns and this community have you ever seen one like this i have not seen another one like this no your honor i know the supreme court is considering the intersection of mean this is a a very right case for the application of international comedy this issue the who should own france dot com is the issue that is being litigated in court that comedy provides a separate basis for this court to dismiss this claim with veterans can ask you one other question about that and so you told us that the french case was still proceeding ye and of the action and i agreed with that proposition then i think there was discussion about where that actually was what was going on yes yes your honor so that action is currently pending in france that it is under review by the supreme court of france my client tells me that a decision is expected sometime by the summer or the fall and that  issue early all and then the nd question is how this is territory we ltd of trademark law all affect our decision with respect to the french court decision own princ questions so turning to the nd question it is true that the plaintiffs here a surge a us trademark in france dot com for purposes of the sovereign immunity question we need to look at what the min of the action is and that we submit based on the complaint and the pleadings is the legit taking of the domain name which resulted in france later using the domain website judge boyd could you repeat your st question i'm i'm afraid of all the district court had early oh resolve the issue of sovereignty sovereign immunity yes your honor we believe that it should have we believe the cases both in this circuit and elsewhere teach that it's the obligation of the district court to issue a detailed analysis because the purpose of the of the f a a is to protect the sovereign not just from the consequences of litigation but also participation in the litigation the lower court here well we filed a motion to dismiss on two grounds initially to ground as well as rule thirty french judicial action french to dish will decision oh i know i know that that wasn't what i meant to say what what i'm saying is that the grab a man for purposes of f s a is the a leg taking of his domain name and that the trademark and other claims basically well from the later use of the property that was allegedly taken to mean what you say taking of the domain name to me caused the transfer was something that web dot com did as it was permitted to do  flow from this act they say it was wrong coldly decided by the current court then all the allegations respect to what is being done on the french tourism website whether or not that website or france receives any fees for advertising that may be on the website is not relevant because the supreme court as well as the nd circuit in lawsuit i'd also like to make a point about the contacts or lack of contacts rather between the operation of the website in france and the united states the plaintiff appears to be arguing that there is sufficient substantial contacts as the f s a requires under the commercial activity exception in order in order to sustain jurisdiction here and we submit and that means they would not serve to meet the minimum context tendered if this were a straightforward trademark let me ask you this what what what what should have gone into the comedy analysis and whether a u s court is the right venue for those issues here the the republic of france inserting its sovereign rights to have a vanity in its own courts and i want to i want to draw the court's attention to the course turning briefly to the expropriation argument if you accept that the taking of the domain name the legit taking the is the problem then there are many reasons why this does not constitute expropriation a s defined under the fs i first of course just must as pointed pointed out the act that resulted in the taking is that is the operation of a french court  that was after years of litigation and there's no suggestion there was not due process or fair opportunity in that case that's not that's not a taking there is no violation of international law here the plaintiffs make some points tries to argue that the result of the french court would not have been reached here in the us but that is not international law and i think it  actually highlights the principle that international comedy consideration where we're looking at a long stablished prior litigation that's been going on for some time the us court should not take their which is what you used to do this analysis is the alleged taking of the domain name that was not commercial activity when according to france makes a ruling that's not commercial when the government sends their ruling to web dot com that's not commercial either that's not what what what the congress intended when it wrote commercial activity and even if you think that the operation of the website in france which allegedly received traffic when people type in france dot com in their drug browser bar that website has no substantial contacts with the united states and that is one of the forty one of the one of the elements required in order to have  report your honour's with all due respect this is not a case about a french court judgment and this is not a case about the act of sending a letter francis sending a have dot com that's not what this case is about the french court order that that my colleague has spent their argument talking about today didn't order anyone to do anything other than my client it ordered my client to transfer his domain name or face a fine it didn't order web dot com to do anything it didn't give appellants any whites to take any action it was not self executing order that could just be presented to the united states with any sort of judicial review and expect that somebody grant deference or great comedy to the decision this case is about trademark infringement well but  normal situation if this court order had been taken somewhere in france i would expect french people to give deference to it as that as a statement of courts in their in their jurisdiction however we have principles of domesticating and recognizing born judgments in the united states and france took every action on civil to avoid any judicial scrutiny of this french court order there was no judicial review this court order to determine whether it offended the public policy of the united states it's explicitly contrary to our trademark law in the united states this was the french court litigation that the french government intervened and litigation was more the specific purpose to get the domain name this wasn't because they had an interest and in the true underlying trademark litigation they had the intent and purpose of just getting this trade name because when you read the review their own meeting minutes rendezvous in front's was too hard for people to type into their systems so even though they have  action where we negotiating things with web dot com but this case is about the accounts infringing my client's trademark that the order the order didn't h the main name my client has a long standing trademark in the united states a freights dot com that's its trademark when the appellants use the domain name france dot com for redirect internet traffic to the tourism promotion sites there infringing on my client's trademark mine finds my clients united states trademark when they when they use a domain name that is the same as my clients loam standing us trademark a trademark that is perfectly appropriate as the booking dot com decision reaffirms when they do that they're committing cybersquatting we have account for cybersquatting every count we have in our in our complaint does not depend on a french court decision or one of the letter that is not the  just compensation is in violation of international law that when when the taking occurs and compensation is not provided for the item took but that deprivation of property without without without compensation is in france didn't act as a sort of a sovereign france didn't act as a software in attempting to get the transfer of their domain name they acted as a private party it's private parties that send a letter that sort of  the decision of the french court right and that's to say the french court is what caused you damage your honor with all due respect i don't believe that is some hope that let's say for argument's sake and i just were and i disagree that the french court decision is what effectuated the transfer here because our the thirty four transfer possible there would have been no possibility of the transfer without heating of the french court on that right that is indeed the tools that pellets used to get the transfer i would suggest that they would just send a same sort of pressuring letter improperly and infringe on the trademark that it's it's their use of the trade it's their use of the domain name that's infringing on my client's trademark that there's there's no cybersquatting and there's no but if they take the domain name if they get the french court what they originally asked the french court to do is either award them a complaint and or but my client keep the domain name and simply say they couldn't operate their business with that domain anymore if they had gotten the domain name and canceled it because they didn't want to have my client competing with them in france that would have been necessarily infringing on my client's trademark what infringes on my client's trademark what commits what is the grounds for there were versus the main name hijacking is the way that they utilize the domain name in redirecting to their tourism promotion site ok maybe i think i understand your argument now steps in the way that you would like to do here so what's the best authority i can look at to see an example of what you're talking about what though it's not binding on this court the nd circuit's recent decision in public star is is close to click and paste or whether somebody took a photo in a studio of those items they weren't concerned with how the welsh government got those those photos what they were concerned with was what the welsh government did with those photos d how the welsh government infringe on the intellectual property but it appears they didn't have the welsh government getting the photos in the same way that the french government got this website correct well even if  that you're on your own or i guide i'm not at one argue with your position that just right there's no welsh there's no welsh government decision giving anyone any rights in anything goes but the whites under united states trademark law all those those things that the book keep it justice ginsburg says in the booking dot com decision are valuable property rights that are conferred when you have a trademark those valuable property rights in this country that have trademark protections france doesn't get to say that that those trademark protections can be violated in the united states a french court doesn't get to say that if a british court believes that that is what should happen that my client should not have its trademark rights in the united states in the way a fridge court or the french government would act as a sovereign is they would get our government to recognise that position it would get our courts to recognise that position when you look it both published or unpublished stars looking at a justice scalia's decision in wealth over and looking at justice souter's decision and nelson that you're looking at what the actual act was that gave rise to the claim the claim is trademark cybersquatting those have to do those have to do the claim is under federal unfair competition those claims have to do with how the trademark is being used how the domain is being used and and need supreme court nd circuit haven't gone down the claims one by one they said the gravity of the complaint you look at the and that's that's what i'm going to stop here but trademark infringement just as the case would be in unpublished star your honor if i think someone's copyrighted information and i and i just keep it in my desk  i haven't infringed on their copyrights someone might someone might be able to get me for theft of property in this case expropriation somebody might be able to get me on another claim on how i got the property but an intellectual property infringement suit opinions on how the intellectual property is used or misused there's no there's no question but like i said before the nd circuit is not looking at how those pictures of the of the sovereign was doing something that if done by a private party would subject them to liability and there's no argument here that if a private party did just what the appellants have done in this case that they would be current judge floyd the same question that i ask you cali should the district court have considered sovereignty sovereign immunity claim and have given you a chance to say we we fall within the commercial activity exception of s s i a and we should in that what should happen here with judge judge floyd i think that's right no think that's what's happening here judge of brady or the district court early on some of our allegations some are allegations in our complaint he heard oral argument and in what this court says in base metal and lewis whe whether to order discovery in the scope of discovery to the sound discretion of the trial court eastern district in its discretion said i need some discovery here before i can make this decision when he did he address sh allegations no yet absolutely your honor in his in his order in the court's order when it st when we when we discuss these issues that are hearing a long time ago before the virus that when we discuss those issues the court said these issues of sovereign immunity are best resolved later in this process now we understand there is no disagreement i i don't pretend there is no authority out there saying that these questions of sovereign immunity are important need to be raised as early in the litigation as possible but that's clearly what the court says but early in litigation it has is a broad spectrum that early in litigation doesn't mean before either party has an attempt has an opportunity to develop a factual record but that's not quite right either at this stage of litigation it would mean that we make those determinations only case than i am but those cases stand for the proposition that there are a number of situations where we need some amount of discovery to fully informed that decision by the trial court the trial court should make these back and have a district court can provide for a limited jurisdictional discovery i believe i believe there should be jurisdictional discovery just as in the current case though in k b r i believe that we're we're facing some situations here where the where the the same the same facts that go towards jurisdictional immunity or closely intertwined with the facts that story on the merits of this decision and so i believe that the questions about for instance questions about how this taking occurred cross this taking didn't just involve web dot com going something if you look at the global santa fe case that there's a good description on h acted like the decision on sovereign immunity has been made we've always taken the position that all the district court ordered below is that we have discovery so the facts can be developed so that we can address the issue an issue of sovereign immunity issue a sovereign immunity doesn't have to wait until a summary judgment motion even though the poor fellow said that that would be better raised the summary judgment stage we just believe that there should be some factual discovery and your honour's a very important point that i raised in my preferred that would go towards that limit that jurisdictional discovery is this issue that mr graham my colleague calls a novel theory and it has to do with negative commercial activity because if we have jurisdictional discovery and i asked discovery around the intents and purposes of what france did during this we're going to get discovery objections that say that's not relevant all we look at is the current commercial activity that someone state no other court no other circuit court has staked out a position on this and it seems like a self evident to me but my opinion is worth only that  decision decisions and actions that are taken to destroy a commercial business or what or actions that are taken with the knowledge or reasonable belief that a destruction of a business occur are every bit as commercial as any other commercial activity that you'll pay and if this court is going to send a decision down for jurisdictional discovery then i believe it's important to and whether there's an exception to the f s a if it the supreme court teaches and even a public star this is very clear you have to figure out what the conduct that actually entered the plaintiffs is the law the domain name as a result of the french court decision and we have dot coms decision so you don't need to get to know what might happen in the future if this were to get anywhere because they have met their obligation to prove an exception under the f s a because your contention is none of that is chris is commercial activity  those two things are not commercial activity and everything having to do with the website what france later did with the domain name that is obtained through a sovereign act to stop a search of sovereign rights is exactly judge rushing had a good question about whether there were any violations of international law that relate to whether or not there could be expropriation here and if this case is anything the court's attention to and this applies on goal of the exceptions is that there is no substantial excuse me no no substantial contacts with the us this is a french website while it is in english it is directed to the whole world there are many people outside the us that speak english it is a passive website you cannot buy anything from the website directly it is not selling anything and activities of the welsh government in new york with commercial operators the opposite is true here my client is doing things in france on the internet there passively there is no allegations that does done anything france is done anything in the united states that might support jurisdiction in this case does not allege on this space and this is this is what we are this is this is why the court granted jurisdiction is that it should decide as an early stage before discovery whether or not there is an arguable basis can be considered at this stage to determine whether there is an exception made so we believe this court should dismiss prejudice we also believe this court can dismiss with prejudice on the international comedy grounds this case and the question of who owns who should have france dot com is going on in france and will go on there for a while the u s court should not consider this and should defer to the sovereign nation of france and