                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 09-2325


BERNARD J. CARL,

                Plaintiff - Appellant,

          v.

BERNARDJCARL.COM; FABRICE MARCHISIO; COTTY VIVANT MARCHISIO
& LAUZERAL,

                Defendants – Appellees,

          and

NS HOLDING, INC., f/k/a       Network   Solutions,     Incorporated;
JOHN DOE #1; JOHN DOE #2,

                Defendants.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.   T. S. Ellis, III, Senior
District Judge. (1:07-cv-01128-TSE-TRJ)


Submitted:   October 21, 2010               Decided:    December 3, 2010


Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


Bernard J. Carl, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

            Bernard J. Carl brought suit in the district court

against    French        law     firm    Cotty     Vivant        Marchisio         &    Lauzeral

(“CVM&L”) and one of its partners, Fabrice Marchisio.                                     In the

district court, Carl alleged that Marchisio and CVM&L purchased

the   domain      name      “bernardjcarl.com”            and        posed    a        defamatory

message    under     a    false    identity       claiming           that   Carl       owed    them

money for services performed as a subcontractor for a law firm

hired by Carl to assist with the acquisition of a French luxury

brand.      Carl         brought    claims        under        the     Anti-Cybersquatting

Consumer Protection Act, 15 U.S.C. §§ 1125(d)(1), (2) (2006),

the Lanham Act, federal anti-cyberpiracy law, 15 U.S.C.A. § 8131

(2010),    and     Virginia        state    law     trademark          and    libel.           The

Defendants did not file responsive pleadings, and Carl moved for

default judgment.

            The      district      court     dismissed         all     of    Carl’s      federal

claims as well as his state law trademark claim.                                       The court

found Marchisio and CVM&L liable on Carl’s defamation claim and

awarded $10,000 in compensatory damages, but also found that

Carl had not established that Marchisio and CVM&L had acted with

“actual malice,” and therefore denied his request for punitive

damages.       The       court    also     declined       to    award       Carl       costs   and

attorney’s fees.          Carl appeals.           For the reasons that follow, we



                                              3
affirm    in     part,     vacate     in   part,      and    remand      for      further

proceedings.

               Carl’s    first    claim    on    appeal     is   that    the   district

court    misinterpreted          15   U.S.C.A.    § 8131,        the    federal    anti-

cyberpiracy law.         The statute provides:

       Any person who registers a domain name that consists
       of the name of another living person, or a name
       substantially and confusingly similar thereto, without
       that person’s consent, with the specific intent to
       profit from such name by selling the domain name for
       financial gain to that person or any third party,
       shall be liable in a civil action by such person.

15 U.S.C.A. § 8131(1)(A).

               The district court determined that Carl had not shown

that Marchisio or CVM&L had the intent to profit by selling the

domain name back to Carl or to a third party.                      We have reviewed

the record, and we agree.              The statute’s language is specific,

and while the defendants may have been attempting to profit,

they did not do so in the means specified in the statute.

               Carl next concedes that the district court was correct

to dismiss his Lanham Act and state law trademark claims because

this     court     has    rejected      the     “initial     interest      confusion”

doctrine in trademark cases.                  See Lamparello v. Fallwell, 430

F.3d    309,     316    (4th Cir. 2005).         He   argues,      though,     that    we

should revisit that decision.              The merits of this request aside,

a panel of this court cannot overrule the decision of a prior




                                           4
panel.          United            States       v.       Simms,     441     F.3d         313,     318

(4th Cir. 2006).

               Carl    next        argues      that      the   district       court      erred    in

determining that Marchisio and CVM&L did not act with actual

malice and therefore could not be subject to punitive damages

for    defamation.           When       reviewing        a   trial      court’s      decision     to

award    punitive       damages,          a    reviewing       court     “must       examine     the

facts    pertinent           to     the       punitive-damage           award     and     exercise

independent judgment to determine whether the record establishes

actual malice with convincing clarity.”                            Williams v. Garraghty,

455     S.E.2d        209,        217     (Va. 1995)           (internal        citations        and

quotations omitted).                Conversely, a trial court’s decision not

to award damages is also reviewed independently.                                   In order to

receive punitive damages in a defamation case under Virginia

law,    the    plaintiff           must       prove     “actual      malice     by      clear    and

convincing       evidence           that        the      defendant        either        knew     the

statements were false at the time he made them, or that he made

them with a reckless disregard for their truth.”                                        Government

Micro Resources, Inc. v. Jackson, 624 S.E.2d 63, 70 (Va. 2006)

(internal citations omitted).

               Our review of the record persuades us that Carl has

made a sufficient showing of actual malice to support an award

of punitive damages.                 The evidence demonstrates that Marchisio

and    CVM&L    at    least        acted      recklessly         when    they   made      libelous

                                                    5
statements concerning a purported debt owed by Carl.                                   We find

particularly compelling the fact that the Defendants in this

matter were attorneys who knew they never contracted with Carl,

that       they    represented         to     Carl’s    former       counsel   a     desire   to

avenge an insult, and that they went to great lengths to conceal

their identities.                Because the Defendants’ reckless disregard

for truth is sufficient to establish malice, the district court

improperly concluded that it could not award punitive damages.

However, whether to award punitive damages, and the amount of

any     such       award,       are     matters        within    the     district      court’s

discretion.          See Hamilton Dev. Co. v. Broad Rock Club, Inc., 445

S.E.2d       140,    144    (Va.       1994).         Thus,     we   vacate    the    district

court’s         denial     of    punitive       damages        and    remand    for    further

proceedings on this issue. 1

                  Finally, Carl argues on appeal that the district court

erred      by     failing       to    award    attorney’s       fees    and    costs. 2       The

general      rule     under      Virginia       law     is    that    attorney’s      fees    and

costs may not be recovered by a prevailing litigant as an item



       1
       To be clear, although we disagree with the district
court’s finding that actual malice was not established, we
express no opinion about whether the district court should award
punitive damages, or the amount of any such award.
       2
       Carl sought to recover the costs of investigating and
prosecuting his civil case, rather than the recoverable costs
enumerated in 28 U.S.C. § 1920 (2006).



                                                  6
of damages.    State Farm Fire and Cas. Co. v. Scott, 372 S.E.2d

383, 386 (Va. 1988).        We find no reason to deviate from that

general rule here.

           We therefore affirm the district court’s judgment with

respect to Carl’s cyberpiracy claim, his trademark claims, and

the court’s decision not to award attorney’s fees and costs.                We

vacate the district court’s finding of no actual malice, and

remand for further proceedings on that claim.                We dispense with

oral   argument   because      the    facts   and   legal    contentions    are

adequately    expressed   in    the    materials    before    the   court   and

argument would not aid the decisional process.

                                                            AFFIRMED IN PART,
                                                             VACATED IN PART,
                                                                 AND REMANDED




                                        7
