## Facts

- Register.com, an ICANN-accredited domain-name registrar, provided public WHOIS access to registrant contact data through web and port 43 services.
- Each WHOIS query response displayed terms limiting use of the data, including prohibitions on using the data to support mass unsolicited commercial solicitation (initially by email and later also by telephone and direct mail).
- Verio, a web-hosting and web-development company, used automated programs to submit numerous WHOIS queries daily to Register’s servers.
- Verio systematically harvested contact information for newly registered domain owners and used that information to solicit those registrants by email, telephone, and direct mail.
- Verio knew Register conditioned access to WHOIS results on compliance with the posted terms and knew its solicitation use violated those terms, but continued the conduct.
- Register sought a preliminary injunction barring Verio from (among other things) automated access, solicitation using WHOIS-derived data, use of Register’s trademarks, and suggestions of Register’s sponsorship or endorsement.
- The district court granted the preliminary injunction; Verio appealed.

## Issues

1. Whether Verio’s repeated WHOIS access and use of results with knowledge of the posted restrictions created an enforceable contract, despite no click-through assent.
2. Whether Register’s WHOIS-use restrictions were unenforceable due to ICANN accreditation requirements or related public policy considerations.
3. Whether Verio’s automated, repeated querying beyond the scope of permitted access could support a trespass-to-chattels or similar interference claim.
4. Whether Verio’s marketing practices using Register’s marks or references likely created consumer confusion as to affiliation, sponsorship, or endorsement under the Lanham Act.
5. Whether the record supported irreparable harm and an equitable basis for preliminary injunctive relief.

## Decision

- The Second Circuit affirmed the preliminary injunction, holding the district court did not abuse its discretion.
- The court concluded Register showed a likelihood of success on breach of contract because Verio repeatedly accepted the benefit of access while aware of the stated conditions.
- The court rejected Verio’s argument that it could take the data while refusing to be bound by the conditions; acceptance with knowledge could constitute assent.
- The court found ICANN-related arguments did not defeat enforcement at the preliminary stage, including because ICANN’s agreement did not confer third-party beneficiary rights on Verio and did not bar Register’s restrictions as applied.
- The court held the district court could find a likelihood of success on trespass/interference theories where automated access exceeded the scope of permission and continued after objection.
- The court upheld Lanham Act-related restraints where the record supported a likelihood of confusion from Verio’s references to Register and implication of affiliation.
- The court agreed the record supported irreparable harm and that the balance of hardships favored Register.

## Legal Principles

- When access to a service or data is offered subject to stated conditions, a party that repeatedly takes the offered benefit with knowledge of those conditions may manifest assent and be bound, even without express “I agree” confirmation.
- Contract enforceability does not depend on the user’s subjective willingness to be bound when the user proceeds with use after receiving clear notice of conditions.
- Public availability of data does not foreclose enforceable conditions on access or use, including restrictions on automated harvesting and commercial solicitation.
- Use of a computer system that exceeds the scope of permission—especially after notice and objection—may constitute actionable interference, including trespass-to-chattels-type claims.
- Marketing that uses another’s marks or messaging likely to suggest sponsorship, endorsement, or affiliation can support injunctive relief under the Lanham Act.
- On preliminary injunction review, the appellate court assesses whether the district court acted within its discretion in finding likelihood of success, irreparable harm, and equitable factors favoring relief.

## Conclusion

The Second Circuit affirmed preliminary injunctive relief against automated WHOIS harvesting and solicitation, holding that repeated access with notice could bind a commercial user to posted terms, that ICANN-related arguments did not bar enforcement at this stage, and that contract, computer-interference, and trademark theories supported injunction-based remedies.


Register.com, Inc. v. Verio, Inc., 356 F.3d 393 (2d Cir. 2004)