Register.Com, Inc. v. Verio, Inc.

356 F.3d 393 (2nd Cir. 2004)

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Nature of the Case

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Facts

P was appointed a registrar of domain names by ICANN. P was required to enter into a standard form agreement with ICANN, designated as the ICANN Registrar Accreditation Agreement, November 1999 version. Applicants to register a domain name must submit to the registrar contact information, including at a minimum, the applicant's name, postal address, telephone number, and electronic mail address. P is required to preserve it, update it daily, and provide for free public access to it through the Internet as well as through an independent access port, called port 43. The ICANN Agreement requires the registrar to permit use of its WHOIS data “for any lawful purposes except to: support the transmission of mass unsolicited, commercial advertising or solicitations via email (spam); [and other listed purposes not relevant to this appeal].” This Agreement also has terms that state it shall not be construed to create any obligation by either ICANN or Registrar to any non-party to this Agreement. ICANN Agreement § II.S.2. Those who query WHOIS electronically agree that you will use this data only for lawful purposes and that under no circumstances will you use this data to support the transmission of mass unsolicited, commercial advertising or solicitation via email. P amended the terms of this legend to impose more stringent restrictions on the use of the information gathered through such queries. P also sells other web related services. Among the entities it solicits for the sale of such services are entities whose domain names it registered. During the registration process, P offers registrants the opportunity to elect whether or not they will receive marketing communications from it. D is engaged in the business of selling a variety of web site design, development, and operation services. D competes with P's web site development business. D obtains daily updates of the WHOIS information relating to newly registered domain names. D devised an automated robot software program to capture the port 43 information. D would then send them marketing solicitations by email, telemarketing, and direct mail. Those sent by email were inconsistent with the terms of the restrictive legend P attached to its responses to D's queries. D's solicitations addressed to P's registrants made explicit reference to their recent registration through P. This led some of the recipients of D's solicitations to believe the solicitation was initiated by P and was sent in violation of P's election not to receive solicitations from P. P got complaints. P demanded that D cease and desist from this form of marketing claiming that D was harming P's goodwill and that by soliciting via email, was violating the terms to which it had agreed on submitting its queries for WHOIS information. D stopped mentioning P in its solicitation message. P then changed its restrictions to also bar mass solicitation “via direct mail, electronic mail, or by telephone.” P brought this suit on August 3, 2000, and moved for a temporary restraining order and a preliminary injunction. The injunction was granted, and D appealed.