McAfee Wants Cybersquatting Plaintiff Declared a ‘Vexatious’ Litigant

McAfee isn’t the proper defendant to pro se plaintiff James Linlor’s allegations it’s cybersquatting on the cyberguard.com internet domain and preventing Linlor from pursuing a similarly named cybersecurity consultancy (see 2301310011), said its motion to dismiss Wednesday (docket 5:23-cv-00385) in U.S. District Court for Northern California in San Jose.

McAfee sold the domain to Musarubra in July 2021 as part of its strategy to divest all its enterprise businesses and concentrate on cybersecurity protection for consumers, said the motion. Linlor knows that, yet he continues to prosecute his claim against McAfee anyway, it said. It seeks a declaration from the court that Linlor is a “vexatious” litigant under the California Code of Civil Procedure.

Linlor has filed more than two dozen "frivolous" lawsuits in recent years, said the motion. The World Intellectual Property Organization about a year ago rejected his petition to transfer ownership of cyberguard.com to him under the bad-faith provisions of the Anti-Cybersquatting Consumer Protection Act (ACPA), yet he now brings the identical claim against McAfee in federal court, it said.

Linlor doesn’t dispute that his first use of cyberguard wasn’t until 20 years after the domain was initially registered and 10 years after McAfee acquired the rights to it, said the motion. McAfee’s registration of the domain predates his alleged use of its mark, it said.

Linlor already has been declared a vexatious litigant in California state court, said the motion. “He now continues his litigious ways in federal court, seeking relief for a groundless claim,” it said. Linlor’s “vexatious actions must be curbed,” it said. Efforts to reach Linlor for comment Thursday weren’t successful.

Linlor’s ACPA claim fails because his alleged cyberguard trademark wasn’t in use until 2018, said the motion. The mark therefore wasn’t “distinctive” at the time the cyberguard.com domain was registered in 1998, as required by the statute, it said. His ACPA claim also fails because allegations that McAfee is passively holding or abandoned the domain by not actively hosting a website isn’t evidence of bad faith, “much less bad faith intent to profit off of an alleged mark,” it said.

As part of the “prior history between the parties,” Linlor filed his WIPO complaint in February 2022, which was also about seven months after McAfee sold the cyberguard.com rights to Musarubra, said the motion. The WIPO process provides an arbitration forum for disputes over the registration of internet domain names, it said. WIPO dismissed the complaint and rejected Linlor’s request that the domain be transferred to him, it said. In so holding, WIPO found it “persuasive” that the domain registration predated any of Linlor’s alleged trademark rights, and so the disputed domain “could not have been registered in bad faith,” it said.

“Undeterred,” Linlor filed “the present action against McAfee in federal court making the same groundless claim,” said the motion. In an attempt to save “party and judicial resources,” McAfee’s inside counsel twice contacted Linlor, once Feb. 10, and again three days later, asking him to withdraw his lawsuit, because McAfee no longer had any control over the domain, it said. Counsel told him his failure to do so would risk McAfee holding him accountable for its attorneys’ fees and court costs to defend the case, it said. Linlor apparently ignored both overtures.

In seeking to have Linlor declared a vexatious litigant, McAfee wants the court to enter “a pre-filing order to prevent further frivolous suits against other individuals and entities,” said the motion. McAfee also requests an order for Linlor “to issue security for attorney’s fees and costs of at least $50,000 to continue to pursue this litigation,” it said. Linlor “has demonstrated a history of vexatious litigation and a history of meritless suits,” it said. That necessitates the prefiling order and posting of security to curb his “harassment” of individuals and entities such as McAfee, limiting his “abuse of the judicial process and its resources,” it said.