Register.com brought the case in August 2000, arguing that Verio
was deceiving Register.com's customers with misleading marketing
tactics and violating the terms of use for the WHOIS database.
Register.com sought a court order to halt Verio's activities,
alleging that they constituted breach of contract, trespass to its
computer database. It also cited violations of the Lanham Act,
which covers liability for unfair competition and false designation
of origin, and the Computer Fraud and Abuse Act.
As an ICANN-accredited registrar, Register.com is required to
maintain a WHOIS database to give public access to information for
the purposes of resolving domain name disputes.
Verio used a spider program to search the WHOIS database for
newly registered domain names and then add the details of each
registrant to its marketing list. Register.com was alerted to
Verio's actions by complaints from customers who had not opted-in
to receive solicitations when registering with Register.com.
In December 2000 Judge Jones ruled that by submitting a WHOIS
inquiry, Verio assented to the terms of use required by
Register.com. It then breached these terms of use.
On appeal Verio argued that Register.com had itself breached
ICANN rules requiring it to make the WHOIS data freely
available.
But the 2nd US Circuit Court of Appeals disagreed. According to
Law.com, Judge Pierre Leval wrote: "The public policy as set forth
in the ICANN Agreement expressly contemplated that the WHOIS data
not be available for use in mass e-mail solicitation."
The injunction was upheld.
