The fight for control of the domain name sex.com is entering a new -- and perhaps final -- round.
Breathing fresh life into a two-year-old lawsuit, a federal appeals court agreed to consider a motion from the site's former operator, Stephen Michael Cohen, who is seeking to regain ownership of the sex.com domain. The move gives San Francisco's Ninth Circuit Court of Appeals a deciding role in one of the steamiest cases in the history of domain-name litigation.
Cohen, who ran the sex.com site for the last five years, is appealing a November ruling that took the sought-after domain name out of his hands.
In that decision, Judge James Ware of U.S. District Court in San Jose, California, ordered that the valuable slice of Internet real estate be returned to San Francisco entrepreneur Gary Kremen, who first registered the domain back in 1994. Ware ruled that Cohen's claim to sex.com is invalid because he got control of the domain by forging a phony transfer letter to domain registrar Network Solutions.
Now the appeals court will consider Cohen's arguments about why Ware's decision was unfair. The court set a Jan. 17, 2001 deadline for Cohen's attorneys to file a brief laying out his legal claims, and it gave the opposing side until mid-February to respond. The judges did not set a hearing date.
Cohen's attorney could not be reached for comment.
Pamela Urueta, an attorney for Kremen, characterized the appeal as a desperate move.
"He's trying to put up every last-ditch effort to try to block the enforcement of those orders," said Urueta, a lawyer at Kerr & Wagstaffe in San Francisco.
Besides appealing to a higher court, Cohen is also asking Judge Ware to reconsider his order for damage payments. Cohen claims he doesn't have enough money to meet the court's demands.
In his November ruling, the judge ordered Cohen and Ocean Fund International, the former registered owner of the sex.com domain, to provide "a full accounting" of the financial operations of the site. He also told Cohen and the fund to put $25 million under the court's control, as he figures out how much to order in damages.
Cohen, who claimed to have made millions from running the sex.com porn site, told Ware that he doesn't have $25 million. The judge set up a hearing on Jan. 24 to determine whether Cohen has enough assets to comply with the order.
Meanwhile, Cohen has yet to find sympathy from the court as the case proceeds in his quest to get sex.com returned. Both Ware and the appellate court refused to grant a stay that would leave sex.com under Cohen's control during the appeals process.
Rob Phillips, an intellectual property lawyer at Howrey Simon Arnold & White, cautioned against reading too much into the courts' decision to deny a stay.
"The fact that the courts didn't grant the stay request is not necessarily an indication of how the appeal is going to turn out," Phillips said. He noted the standards for the stay request are very different from the issues on appeal.
Even so, Phillips ventured to make a guess as to what the final outcome of the drawn-out dispute might be.
"From what I've heard the facts supporting the allegations of forgery were pretty strong, and so I would suspect that the decision would be upheld," he said.