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Plaintiff PG Media, Inc., d/b/a name.space ("PG" or Plaintiff),
by its attorney Michael J. Donovan, Esq., for its Complaint against
Defendant Network Solutions, Inc. ("NSI" or Defendant), respectfully alleges:
Preliminary Statement
Plaintiff PG Media, Inc. seeks herein to open access to the Internet's Domain Name Registration Market,1 which has been controlled exclusively by Defendant NSI since 1993. NSI's exclusive control and manipulation of that market to maintain its monopoly in the registration of universally resolvable Domain Names on the Internet is not based on any technical requirement or justification arising from the architecture of the Internet, nor shielded by any congressional grant of immunity. On the contrary, the NSI monopoly is a continuation and exploitation of the arcane and arbitrarily limited Domain Name format developed at a time when the Internet was exclusively operated and controlled by military, governmental and educational research facilities. Now that the Internet has long since become a thriving commercial marketplace, essentially free of governmental regulation and control, all of the firms doing business in that market, including NSI, must be subject to applicable Federal and state law which forbids NSI's illegal, monopolistic conduct.
In this Complaint, PG seeks extremely limited and narrowly tailored injunctive relief to compel NSI to add reference in the Configuration File on the NSI Root Nameservers to PG's Nameservers so that PG may compete with NSI in the Domain Name Registration Market for Domain Name registrations under shared Top Level Domain Names ("TLDs"). Unlike NSI, PG does not claim any exclusivity with respect to the Top Level Domain Names under which it offers registration services -- indeed, there is no technical barrier to prevent NSI from also offering registration services under the PG Shared TLDs in competition with PG. However, because NSI controls and operates the Configuration File which is the central (and essential) technical bottle-neck facility for the Domain Name Registration Market, NSI's refusal to allow PG access to the Configuration File is a clear violation of Federal and state antitrust laws, and the relief PG seeks herein should be granted. In addition, NSI has conspired and acted in concert with other interested parties to prevent free and open competition in the Domain Name Registration Market in further violation of Federal and state antitrust laws.
The Parties
Plaintiff PG Media, Inc., d/b/a name.space, is a corporation duly organized under the laws of the State of New York, with its principal place of business at 11 East 4th Street New York, New York. In 1996, PG launched its service name.space on the Internet in an effort to provide Internet Domain Name registration services in competition with Defendant NSI, which controls the central Configuration File and NSI Root Nameservers on the Internet.
On information and belief, Defendant Network Solutions, Inc. ("NSI"), is a corporation duly organized under the laws of the District of Columbia, with its principal place of business at 505 Huntmar Park Drive, Herndon, Virginia. As noted above and described in more detail below, NSI exclusively controls the Configuration File on the NSI Root Nameservers, and has refused PG's request that reference to the PG Nameservers (in the form annexed hereto as Exhibit C) be added to the Configuration File on the NSI Root Nameservers so that PG's Nameservers may also become "Root".
Non-Party Co-Conspirators
On information and belief, NSI has conspired and continues to conspire with numerous "stakeholders" in the Domain Name Registration Market to erect barriers to entry to that market in order to preclude any competition with NSI, and to control the creation of other discrete sub-market monopolies under an extremely limited set of new, exclusively-owned, Top Level Domains.
These non-party co-conspirators include the Internet Assigned Numbers Authority ("IANA") and its director, Mr. Jon Postel, as well as the individual members of the Internet's International Ad Hoc Committee ("IHAC"), and the control persons of the Internet Society ("ISOC"). These non-party co-conspirators are referred to collectively herein as the "Stakeholders."
Relevant Market
The Relevant Market for purposes of this Complaint is the market for initial registration and subsequent servicing of commercial, non-governmental alphanumeric Domain Names corresponding to IP Numbers in accordance with the Domain Name System ("DNS") for use in enabling and facilitating communication between disparate Hosts on the Internet (the "Domain Name Registration Market").
The Domain Name Registration Market is international in scope extending to every Host on the Internet. At present, Defendant NSI holds a monopoly position in the Domain Name Registration Market and exercises monopoly power with respect thereto.
Jurisdiction and Venue
Jurisdiction is proper in this District pursuant to, inter alia, 15 U.S.C. sections 15, 26, and 28 U.S.C. sections 1331, 1367.
Venue is proper in this District pursuant to 28 U.S.C. section 1391(b), because, among other things, the antitrust injury complained of herein was caused and is continuing to be caused to PG's business within this District.
FACTUAL BACKGROUND
A Brief History of the Internet and
its architecture - Pre-1992.
The Internet began as a network created in the 1960s by the Advanced Research Projects Agency ("ARPA"), of the United States Department of Defense ("DoD", the network established by ARPA is referred to herein as "ARPANET"). The original purpose of ARPANET was to create a communication network via computers which could, among other things, potentially survive a nuclear war. ARPANET was designed to be redundant, so that the destruction of any one computer or "node" on ARPANET would not prevent the other nodes from continuing operations.
Throughout the 1970s and into the 1980s, numerous additional networks were established at geographically diverse governmental, educational and research facilities. It soon became apparent that enabling communication between these various networks would facilitate collaboration among members of the many research and education communities and provide remote access to information and computing resources. Because these various networks were not all based on the same technology and protocols, a communication standard was developed and implemented to allow the free flow of information and communication across the numerous and geographically dispersed networks.
In 1982, the Transmission Control Protocol ("TCP") was implemented by ARPANET and DoD's network, CSNET. This allowed a connection of and intercommunication between CSNET and ARPANET. As other networks implemented the TCP standard, the number of networks interconnected through the Internet grew rapidly. In order to allow the computers ("Hosts") on each network to locate Hosts on other networks, each Host was assigned a numerical address (e.g., 205.160.45.115). Such numerical Host addresses are referred to herein as "IP Addresses".
For ease of reference and accessibility, each Host's IP Address was then assigned a unique alphanumeric name ("Domain Name"). Because of the requirement that each Domain Name be unique, a central group of redundant Root Nameservers was established to house the translation database which allows any individual Host to locate other Hosts by way of the alphanumeric Domain Names. The Domain Name entered by the requesting Host is translated into the appropriate IP Address, and the requesting Host may then communicate directly with the Host at the IP Address corresponding to the Domain Name originally entered.
At the same time, and well before the Internet became a commercially driven industry, a Domain Name System ("DNS") was developed in an attempt to imbue each alphanumeric Domain Name with information regarding the Host addressee. The Domain Name was divided into hierarchical fields, separated by periods (e.g., namespace.pgmedia.net). The field appearing farthest right in the Domain Name (the "Top Level Domain" or "TLD") was arbitrarily limited to six possible codes (i.e., .COM, .EDU, .GOV, .MIL, .ORG, and .NET2), each denoting the type of entity or organization located at the corresponding IP Address. It is important to stress that this arcane format and the original TLDs were created at a time when the Internet was not commercial in nature. In fact, commercialization of the Internet was not even contemplated. In addition, there exists no technical requirement or justification for the arbitrary limitation of TLDs in this way.
Indeed, as discussed in greater detail below, in recognition that additional TLDs are technically feasible and in an effort to protect the monopoly enjoyed by Defendant NSI, NSI has joined with the Stakeholders in the Domain Name Registry Market in an effort to retain NSI's monopoly as to registration of Domain Names under the TLDs it services commercially and exclusively (i.e., .com, .net, .org, .gov and .edu; collectively, the "NSI TLDs"), while allowing the creation of additional monopolies for certain of the Stakeholders with respect to a similarly restricted, exclusively owned and arbitrarily assigned group of new TLDs. Under the structure NSI and the Stakeholders are attempting to impose on the Internet, each newly created Domain Name Registry is to have exclusive control of the TLD assigned to it and may not register names under any other TLD. There is no technical basis for such exclusivity, and PG claims no such exclusivity with respect to the PG Shared TLDs under which it registers names.
Because of the ever-present need for redundancy in the Internet's architecture, a total of nine Root Nameservers (NSI now controls eleven Root Name Servers; collectively the "NSI Root Nameservers") were established on the Internet "backbone." On information and belief, from and after 1993, NSI has exclusively controlled the registry of Domain Names contained on the NSI Root Nameservers, and has exclusive control over the Configuration File on each such server. Each of the NSI Root Nameservers also holds the complete database of Second Level Domain Names registered under the NSI TLDs. NSI also controls the central Configuration File on each of the NSI Root Nameservers in the UNIX language, commonly identified as "named.root," "root.zone," or "db.root," which serves as the directory of the NSI Root Nameservers, as well as the central directory of other country-specific TLDs, such as ".au" for Australia's root Nameservers. (A true and correct copy of the Configuration File on the NSI Root Nameservers as of the date hereof is annexed hereto as Exhibit B).
Every request by way of Domain Name to locate a particular Host on the Internet must necessarily, by default, refer to the Configuration File on the NSI Root Nameservers in order to be directed to the appropriate Nameserver containing the Second Level Domain Names registered under the particular TLD indicated in the Host's request. Accordingly, unless and until a Nameserver, whether it be a TLD's Root Nameserver or any second level name's Nameserver, is referred to in the Configuration File, that Nameserver will not be globally recognized on the entire Internet and the names serviced thereby will not be universally resolvable.
If a requesting Host seeks the IP Address corresponding to a Domain Name under the ".com" TLD, the Host's request will first refer to the Configuration File in NSI's exclusive control in order to be directed to the appropriate NSI Root Nameservers containing the Second Level Domain Names registered under the .com TLD. Similarly, if the Domain Name entered ends in a country-specific TLD, the Configuration File refers the request to the root Nameserver(s) servicing the Domain Names registered under that specific country's TLD. Therefore, because of the redundant and centralized nature of the NSI Root Nameservers in the Internet's architecture, as well as the essential "directory of directories" role of the Configuration File in the Internet's architecture, the Configuration File is an Essential Facility which simply cannot be duplicated by PG in its efforts to offer Domain Name Registration Services with universally resolvable Domain Names in competition with NSI in the Domain Name Registration Market. By its control of this Essential Facility, NSI has the power to eliminate competition in the Domain Name Registration Market which is "downstream" from the Configuration File.
Network Solutions, Inc. takes control of the
Root Nameservers and Configuration File and
establishes monopoly prices and control.
On information and belief, on or about January 1, 1993, pursuant to Cooperative Agreement NO. NCR-9218742 (the "NSI/NSF Agreement") between the National Science Foundation ("NSF"), on the one hand, and NSI, on the other, NSI was given control of the NSI Root Nameservers, and the Configuration File thereon. On information and belief, the Configuration File is under the exclusive control of NSI and is maintained exclusively by NSI. As originally executed, the NSI/NSF Agreement was made on a Cost-Plus-Fixed-Fee basis. However, on or about September 13, 1995, the NSI/NSF Agreement was amended (the "Fee Amendment") to specifically allow NSI to own and operate the NSI Registry (as well as the NSI Root Nameservers and Configuration File) for profit and as an unregulated commercial enterprise.
As amended, the NSI/NSF Agreement sets the prices to be charged by NSI for Domain Name Registration Services at $100 per initial Domain Name registration and two years of use, and $50 per year renewal thereafter (the "NSI Fee"). In fact, the Fee Amendment to the NSI/NSF Agreement fundamentally altered the relationship between NSF and NSI. The agreement is no longer on a cost-plus-fixed-fee basis, but rather, even the government must now pay a fee to NSI for the Domain Names it runs and registers under the ".gov" TLD. The total disengagement by NSF, the extreme NSI Fee, NSI's monopoly control of the Configuration File and NSI Root Nameservers, and the artificially limited supply of NSI TLDs has led to considerable dissatisfaction within the Internet Community over the lack of choice and competition in the Domain Name Registration Market.
While PG does not herein challenge the NSI/NSF Agreement, as amended, as an agreement fixing prices and in restraint of trade, PG reserves its right to do so by way of amendment to this Complaint, if necessary, or through a separate action in a court of competent jurisdiction.
Dissatisfaction in the Internet Community over
NSI's monopoly and arbitrary limitation of
Domain Name content.
With the explosive growth and commercialization of the Internet generally and the Domain Name Registration Market in particular has come ever-increasing demand for Domain Name Registration Services. For example, as of the end of 1996, NSI reports that it is registering over 80,000 Domain Names per month under its arbitrarily limited NSI TLDs, and charging each of those registrants $100 per domain name for the first two years, and $50 per annual renewal thereafter. Because NSI holds the monopoly position of being the only firm which offers universally resolvable commercial Domain Names (due to its exclusive control of the Configuration File and the NSI Root Nameservers), the NSI-Registered Domain Names have been viewed as property by some speculative registrants independent of Trademark and Copyright laws and a "land-grab" for Domain Names has ensued.
There exists no technical requirement or justification for the arbitrary limitation of the NSI TLDs, or for the exclusive position held by NSI with respect to registrations under the NSI TLDs and in the Domain Name Registration Market generally. Thus, not only does NSI possess monopoly power in its control of the Configuration File on the NSI Root Nameservers, but, in arbitrarily and unnecessarily limiting the potential supply of Domain Names by its limited NSI TLDs, NSI has forced over 900,000 Domain Name registrants to pay monopoly prices for the artificially limited Domain Names offered by NSI. PG itself has been forced to pay monopoly prices for the Domain Names it has registered through NSI.
PG develops and launches name.space in
competition with NSI.
In January 1996, Paul Garrin, President and Chief Executive Officer of PG Media, Inc., announced his intention to establish a network of Nameservers (the "PG Nameservers") in five countries on two continents to provide a competing Name Registry (the "PG Registry") to that offered by NSI. PG, doing business as name.space, offers Domain Name Registration Services under virtually any TLD which the registrant may desire. At the same time, PG does not claim any exclusivity to any TLD under which it registers Domain Names. On the contrary, there is no technical justification to prevent other Domain Name Registries (including NSI) from registering Domain Names under the same TLDs PG services.
By removing the arbitrary limitation and registration exclusivity of TLDs perpetuated by NSI, PG's Shared TLDs will greatly increase consumer choice in the Domain Name Registration Market. This expansion of consumer choice will allow the market to develop product and service oriented TLDs which may greatly increase consumer accessibility of specific Internet sites. For example, under the PG Shared TLD ".cameras", each manufacturer and/or retailer of cameras could merely register its site using its Trade or Servicemark followed by the product it sells. Thus, PG's Registry offers Domain Name registrants the potential to create and use Domain Names which may convey complete thoughts, or may, among other things, serve an advertising function to the registrant. (For example, the name.space Host Domain Name in the NSI Registry is "namespace.pgmedia.net", while the Domain Name which is served and resolved by the PG Nameservers is "name.space"; in this example, ".space" is the PG Shared TLD). In addition, by no longer forcing Domain Names to bear the arbitrarily created and limited NSI TLDs, PG's name.space service will facilitate the propagation of Domain Names without the jargon of the Internet of old which can be intimidating and cumbersome to new end-users of the Internet. Furthermore, by removing the exclusivity associated with registrations under the NSI TLDs, existing trademark and copyright laws may apply fully to Domain Names just as with other forms of published mass media.
The PG Nameservers are in compliance with all extant industry standards and protocols. Unfortunately, the Domain Names under the PG Shared TLDs listed and serviced by the PG Nameservers cannot technically become "root" and universally resolvable by disparate Hosts on the Internet unless and until reference (in the form annexed hereto as Exhibit C) to the PG Nameservers corresponding to the PG Shared TLDs is added to the Configuration File on the NSI Root Nameservers. This is due to the fact that all Internet Service Providers ("ISPs") and other Hosts first look to the Configuration File in the NSI Root Nameservers to be directed to the appropriate Root Nameservers which service the TLD on the Domain Name entered by the requesting user. The fact that such amendment is technically feasible is confirmed by the fact that NSI routinely adds reference in the Configuration File to the TLDs and registries of other countries. As discussed below, even certain of the Stakeholders have admitted to such feasibility.
At present, the PG Shared TLDs are only resolvable when the requesting end-user has taken the additional, and often intimidating, step of reconfiguring and redirecting its Internet Connection to by-pass its ISP and look first to the PG Nameservers. It is simply not feasible for PG to create its own universally resolvable Domain Name Registry within the present Internet architecture due to the central bottle-neck position held by the Configuration File on the NSI Root Nameservers.
Because PG is unable to offer universally resolvable Domain Names under its Shared TLDs (a listing of the PG Shared TLDs currently offered by name.space and serviced by the PG Nameservers is included on the Configuration File Addendum annexed hereto as Exhibit C), PG is unable to operate for profit in the Domain Name Registration Market absent the relief herein sought. Nevertheless, as evidence of the incredible demand for Domain Names under PG's Shared TLDs, PG is currently accepting registrations under the PG Shared TLDs it now services, as well as accepting reservations of additional TLDs to add to its list of Shared TLDs. However, because of the lack of universal resolvability of the PG Shared TLDs, PG is unable to charge anything more than a nominal amount for these reservations unless and until the relief requested herein is granted. The universal resolvability that PG herein seeks is essential for PG's name.space service to become a viable competitor in the Domain Name Registration Market.
Thus, until the relief requested herein is granted and the PG Shared TLDs and the Domain Names PG registers under those TLDs become universally resolvable, the value of those Domain Names to the registrants is necessarily limited if not eliminated by NSI's refusal to amend the Configuration File under its control. Each day that NSI continues to refuse to amend the Configuration File as sought herein, PG is unable to charge an open and competitive market-based price for the Domain Name Registration Services it offers, and, accordingly, PG has sustained and continues to sustain substantial damages to its business in the form of lost profits in an amount to be determined at trial as a direct and proximate result of NSI's refusal to amend the Configuration File and its other illegal conduct described herein.
NSI and Stakeholders conspire to protect
NSI's monopoly while limiting and controlling
the creation of additional TLD monopolies.
As noted above, demand for new Domain Names (and TLDs) has exploded in the last two years as a result of the rapid and thorough commercialization of the Internet. One consequence of the increase in demand has been a concerted effort by many Internet insiders or stakeholders (the "Stakeholders"), including Defendant NSI, to artificially control the creation and pricing of potential new and exclusive TLDs. An "Internet International Ad Hoc Committee" ("IHAC") was formed to control and limit the creation of such new TLD monopolies. On information and belief, IHAC is not in any way sanctioned or authorized to do so by any proper governmental grant of authority. In fact, on information and belief, IHAC is nothing more than an attempt to cloak with an air of authority the blatant and concerted effort by NSI and the Stakeholders to perpetuate the monopolistic nature of the present Domain Name Registration Market and protect and preserve NSI's monopoly power in that market.
On information and belief, in addition to IHAC, the Internet Assigned Numbers Authority ("IANA"), under the direction and control of Jon Postel, as well as the Internet Society ("ISOC"), the Internet Trade Association which chartered and oversees IANA, have acted in concert with NSI and IHAC to prevent free market forces from operating in the Domain Name Registration Market. Neither IANA nor ISOC are acting under any proper grant of authority with respect to the Domain Name Registration Market.
For example, as detailed below, NSI refused to grant PG access to the Configuration File, citing NSI's "agreement with IANA." On information and belief, such agreement is merely a part of the conspiracy which operates to preclude competition in the Domain Name Registration Market, is in violation of Federal and state antitrust laws, and PG has been and continues to be injured by that conspiracy.
PG requests access to the Essential Facilities
controlled by NSI.
By letter dated March 11, 1997, PG formally requested that the Configuration File in the NSI Registry be amended to include reference to the PG Shared TLDs and the PG Nameservers. If PG's narrowly tailored request were granted, the Domain Name Registration Market would open up to free market competition, greatly enhancing consumer choice in the Domain Name Registration Market through the creation and expansion of shared TLDs.
Access Denied.
On March 12, 1997, NSI, by its outside general counsel, Philip Sbarbaro, Esq., informed PG by telephone that NSI refused PG's requested amendment to the Configuration File. On March 17, 1997, the undersigned received a letter from Mr. Sbarbaro essentially reiterating the substance of the telephone call. Mr. Sbarbaro stated in the telephone call that NSI had an "agreement" with IANA to defer all such requests to that entity. Mr. Sbarbaro admitted, however, that such "agreement" was not evidenced by any written instrument. As discussed above and set forth in the Counts below, NSI's refusal of PG's request is in violation of both Federal and state antitrust laws, and PG has been injured and continues to be injured thereby. Accordingly, the limited and narrowly tailored injunctive relief requested by PG herein should be granted. In addition, PG requests an award of damages (trebled) to its business as a direct and proximate result of NSI's illegal conduct, as well as an award of costs and attorney fees incurred in seeking this relief.
COUNT I
Violation of Section 1
of the Sherman Act
Plaintiff PG repeats and realleges paragraphs 1 through 29 above as if fully set forth below.
As set forth in greater detail above, NSI has conspired with the Stakeholders to preclude any competition in the Domain Name Registration Market. Such conspiracy directly and proximately injured and continues to injure PG's business. The sole intent and effect of this conspiracy has been to erect barriers to entry, enforced by NSI, to protect and perpetuate NSI's monopoly power and position in the Domain Name Registration Market. Thus, this conspiracy is an unlawful combination in restraint of trade in violation of Section 1 of the Sherman Act, 15 U.S.C. section 1, and has had and continues to have an effect on Interstate Commerce.
Accordingly, PG requests that NSI be ordered, pursuant to 15 U.S.C. section 26, to amend the Configuration File on the NSI Registry to add reference, in the form annexed hereto as Exhibit C, to the PG Nameservers and the PG Shared TLDs, and that PG be awarded damages (to be trebled), including lost profits, which it has sustained and continues to sustain as a direct and proximate result of NSI's illegal conspiracy in restraint of trade with the Stakeholders in an amount to be determined at trial, but not less than $1,000,000. In addition, pursuant to 15 U.S.C. section 15, NSI should be ordered to pay PG's reasonable attorney's fees and costs in seeking the relief herein sought.
COUNT II
Violation of Section 2
of the Sherman Act
Plaintiff PG repeats and realleges paragraphs 1 through 32 above as if fully set forth below.
As alleged above, NSI holds monopoly power in the Domain Name Registration Market, and exclusively controls the Configuration File which is an Essential Facility to that market, to the exclusion of any possible competition. NSI's denial of PG's request that NSI add reference to the PG Shared TLDs and PG Nameservers in the Configuration File, which is an Essential Facility under NSI's exclusive control, is without justification, and in restraint of trade. Such refusal violates Section 2 of the Sherman Act, 15 U.S.C. section 2, has had and continues to have an effect on Interstate Commerce, and PG has been injured and continues to be injured thereby.
Accordingly, PG requests that NSI be ordered, pursuant to 15 U.S.C. section 26, to amend the Configuration File on the NSI Root Nameservers to add reference, in the form annexed hereto as Exhibit C, to the PG Shared TLDs and the PG Nameservers, and that PG be awarded damages (to be trebled), including lost profits, which it sustained and continues to sustain as a direct and proximate result of NSI's illegal conduct described above in an amount to be determined at trial, but not less than $1,000,000. In addition, pursuant to 15 U.S.C. section 15, NSI should be ordered to pay PG's reasonable attorney's fees and costs in seeking the relief herein sought.
COUNT III
Violation of The Donnelly Act
Plaintiff PG repeats and realleges paragraphs 1 through 35 above as if fully set forth below.
As alleged above, the effect and result of NSI's conduct complained of herein, including the conspiracy with the Stakeholders, has been to erect illegal barriers to entry in order to eliminate and preclude any competition in the Domain Name Registration Market, to artificially limit supply of TLDs to consumers within the State of New York, and elsewhere, to artificially limit consumer choice, and to effectively preclude innovation in the Domain Name Registration Market. Such conduct is in violation of The Donnelly Act, New York Gen. Bus. Law sections 340 et seq. As a direct and proximate result of NSI's illegal conduct complained of herein, PG has sustained and continues to sustain damages, including lost profits, in an amount to be determined at trial, but not less than $1,000,000 and trebled according to law.
Accordingly, PG requests that NSI be ordered, pursuant to 15 U.S.C. section 26 and principles of New York common law, to amend the Configuration File on the NSI Root Nameservers to add reference, in the form annexed hereto as Exhibit C, to the PG Shared TLDs and the PG Nameservers, and that PG be awarded damages (to be trebled), including lost profits, which it sustained and continues to sustain as a direct and proximate result of NSI's illegal conduct described above in an amount to be determined at trial, but not less than $1,000,000. In addition, pursuant to N.Y. Gen. Bus. Law section 340(5), NSI should be ordered to pay PG's reasonable attorney's fees and costs in seeking the relief herein sought.
COUNT IV
Violation of Section 2
of the Sherman Act
Plaintiff PG repeats and realleges paragraphs 1 through 38 above as if fully set forth below.
As set forth in detail above, the conspiracy by and between NSI and the Stakeholders is with the specific intent to create new monopolies with respect to additional TLDs in the Domain Name Registration Market, while at the same time protecting the NSI monopoly with respect to the NSI TLDs. Because NSI and the Stakeholders have attempted to cloak their attempted monopolization of such new TLDs with an air of authority, there is a dangerous probability that, absent the relief herein sought, NSI and the Stakeholders may be successful in their efforts. This illegal attempted monopolization is in violation of Section 2 of the Sherman Act, 15 U.S.C. section 2, has had and continues to have an effect on Interstate Commerce, and PG has been injured and continues to be injured thereby.
Accordingly, PG requests that NSI be ordered, pursuant to 15 U.S.C. section 26, to amend the Configuration File on the NSI Root Nameservers to add reference, in the form annexed hereto as Exhibit C, to the PG Shared TLDs and the PG Nameservers, and that PG be awarded damages (to be trebled), including lost profits, which it sustained and continues to sustain as a direct and proximate result of the attempted monopolization by NSI and the Stakeholders in an amount to be determined at trial, but not less than $1,000,000, and trebled according to law. In addition, pursuant to 15 U.S.C. sections 15, NSI should be ordered to pay PG's reasonable attorney's fees and costs in seeking the relief herein sought.
COUNT V
Preliminary Injunction
Plaintiff PG repeats and realleges paragraphs 1 through 41 above as if fully set forth below.
As set forth in Counts One through Four above, NSI's refusal to allow PG access to the Configuration File on the NSI Root Nameservers is in violation of Sections 1 and 2 of the Sherman Act, and The Donnelly Act, New York Gen. Bus. Law sections 340 et seq. PG has sustained and continues to sustain irreparable harm as a result of NSI's illegal conduct. Because of the difficulty in measuring with precision the damages, including lost profits, which PG has sustained and continues to sustain as a result of NSI's illegal conduct, PG has no adequate remedy at law.
In addition, the injunctive relief requested herein is also in the public interest in that such relief will greatly increase consumer choice and competitive pricing in the Domain Name Registration Market. Accordingly, PG respectfully requests that NSI be ordered, pursuant to 15 U.S.C. section 26 and principles of New York Common Law, by preliminary injunction to amend the Configuration File as requested by PG herein.
WHEREFORE, Plaintiff PG Media, Inc., d/b/a name.space, respectfully requests judgment:
1. Ordering Defendant NSI to amend the Configuration File on the NSI Root Nameservers to add reference, in the form annexed hereto as Exhibit C, to the PG Shared TLDs and the PG Nameservers;
2. Awarding PG damages, including lost profits, which PG has sustained and continues to sustain as a direct and proximate result of NSI's illegal conduct described above in an amount to be determined at trial but not less than $1,000,000 and trebled according to law;
3. Awarding PG its reasonable attorneys fees and costs in seeking the relief herein sought; and
4. Granting such other and further relief as is just and proper.
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