S&M&MoA

THE FIRST TIME Todd Selenka visited the Mall of America, he was in a slightly more fortunate position than most pilgrims to Minnesota's biggest tourist attraction: The place was paying him. The Oshkosh, Wisconsin-based Internet entrepreneur had come to the Twin Cities to pick up an $8,000 check that mall operators had cut him for the rights to the Internet domain name www.megamall.com.

"I asked them, 'Where is this mall? I want to go see it,'" Selenka recalls. "And I did. And it was a cool mall."

It's safe to say that Selenka's feelings about the mall have soured slightly since then. On July 30, Hennepin County District Court Judge Beryl Nord ruled that Selenka had breached his contract with the shopping center's operators and was obligated to pay back the $8,000 plus $3,000 in legal fees. It was the culmination of a two-year legal fight bearing all the hallmarks of the domain-name cases that have flooded courts in recent years--payoffs, panache, even pornography.

Selenka's saga began in 1997, when he registered the domain name megamall.com. He says he chose the moniker after seeing a store by that name in Chicago; he wasn't worried about trouble with the Mall of America, he says, having read articles in which the center's owners distanced themselves from the nickname "megamall."Several months after the acquisition, Selenka was contacted by Mall officials who wanted to know whether he'd sell the domain. A deal was struck and in March 1998, Selenka drove to St. Paul to accept the $8,000. In return, he signed papers designating the mall as the owner of megamall.com, and promising not to "use, employ or otherwise adopt" the name.

Thus far, Selenka was lucky: Unlike many of the opportunists who have stormed the Internet in recent years, he had actually turned a domain name into cash. According to Keith Moheban, the Mall's attorney on the matter, the mall chose to pay Selenka in part because--having publicly turned up its nose at the "megamall" moniker--it couldn't very well have sued him for trademark violation. "'Megamall' would be a weak trademark--if it were upheld," he explains.

But Selenka's luck was not to hold. Due to what he says was an honest paperwork error, title to the domain was never transferred to the Mall, and www.megamall.com kept consuming bandwidth on his server as it bounced visitors to the mall's official site, www. mallofamerica.com. According to Selenka, his calls seeking to resolve the matter went unreturned; finally, invoking what he believed to be applicable Wisconsin laws governing abandoned property, he "repossessed" megamall.com. For a while, court documents show, the site offered information about advertising rates along with the statement: "To contact the owner write to nbca@nbca.com." Another of Selenka's Web sites, nbca.com is the home page for the National Bondage Club of America, which he founded. The site dishes up bondage and spanking photos along with chat rooms, personals, and a retail section peddling paddles, whips, and the like.

The Mall of America was not amused. In January, Selenka was served with a summons charging that he had breached his contract and was using megamall.com to direct traffic to the bondage site. He responded by denying the allegations. A few weeks later he arranged for the sale of the domainto Creative Computers Inc., the company that operates the online company PC Mall, for an undisclosed sum. He did not respond to further legal filings from the Mall of America. Following Judge Nord's ruling against him, he says, he has retained a lawyer and is preparing to countersue the Mall--charging, among other things, that its inclusion of evidence about nbca.com in the court file prejudiced the judge against him.

Whatever the eventual outcome of that case, disputes like the one over megamall.com are likely to keep showing up in the legal system, says Steve Baird, an attorney with the Minneapolis firm Arnold, White and Durkee who handles several domain-related cases each week. "It's hard to imagine any business out there that doesn't face the prospect of a domain-name dispute," Baird says. "I'd venture to say that if companies were to run a search with an Internet-name registrar, they'd probably find out that a lot of people own the rights to their trademarks, or names that are similar to their trademarks. Any one of those holds the possibility of a court case."

 
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