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Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 69 U.S.P.Q.2d 1545

Facts

Register.com is a registrar for domain names, required to maintain and provide access to WHOIS information under the ICANN Agreement. Verio, a competitor, used automated software to access this data and solicit business from Register's customers, violating the terms set by Register. Register complained about Verio's practices, which led to a lawsuit seeking a preliminary injunction to stop Verio's actions.

Register was appointed a registrar of domain names by the Internet Corporation for Assigned Names and Numbers, known by the acronym 'ICANN.' ICANN is a private, non-profit public benefit corporation which was established by agencies of the U.S. government to administer the Internet domain name system.

Issue

The main legal issues were whether Verio was bound by the restrictions imposed by Register on the use of WHOIS data and whether Register's claims of trespass to chattels and misleading practices warranted injunctive relief.

Verio conceded that it knew of the restrictions Register placed on the use of the WHOIS data and knew that, by using Register's WHOIS data for direct mail and telemarketing solicitations, it was violating Register's restrictions.

Rule

The court applied principles of contract law, particularly regarding the enforceability of terms imposed by a party offering access to data, and the standards for granting a preliminary injunction.

The ICANN Agreement specified that it should be deemed to have been made in California, where ICANN is located. Under § 1559 of the California Civil Code, a 'contract, made expressly for the benefit of a third person, may be enforced by him.'

Analysis

The court found that Verio was aware of the restrictions imposed by Register on the use of WHOIS data and that its actions constituted a violation of those terms. The court also determined that Register's claims of irreparable harm and likelihood of success on the merits justified the issuance of a preliminary injunction.

The court found that the district court was within its discretion in concluding that Register showed likelihood of success on the merits of its contract claim.

Conclusion

The Court of Appeals affirmed the district court's decision to grant the preliminary injunction, concluding that Verio's actions were likely to cause harm to Register and that the restrictions imposed were enforceable.

We affirm.

Who won?

Register.com prevailed in the case because the court found that Verio's use of WHOIS data violated the terms set by Register, and that Register was likely to suffer irreparable harm without the injunction.

Register.com prevailed in the case because the court found that Verio's use of WHOIS data violated the terms set by Register, and that Register was likely to suffer irreparable harm without the injunction.

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