ICANN | Second Advisory Concerning Register.com v. Verio Litigation

(26 December 2000) As previously reported in an advisory dated 24 September 2000, on 3 August 2000 Register.com, Inc. (an ICANN-accredited registrar) filed a lawsuit (No. 00-Civ-5747 (BSJ)) against Verio Inc. in the United States District Court for the Southern District of New York. The lawsuit concerned Verio's use of information obtained from Register.com's Whois service to contact Register.com customers by telephone and otherwise to solicit them to become Verio customers. Among other things, Register.com asserted that Verio's solicitations violated a restrictive legend displayed on the output of Register.com's Whois service. In the lawsuit, Verio asserted that the legend violated Register.com's Registrar Accreditation Agreement with ICANN.

At the Court's request, ICANN submitted an amicus curiae memorandum, which stated (in summary):

It appears that the process used by Verio to enable it to gather the Whois information was contrary to ICANN policy;
Register.com's legend, if applied in response to Whois queries made through proper means, exceeds the restrictions permitted by section II.F.5 of its Registrar Accreditation Agreement with ICANN; and
The exclusive means of legally enforcing these restrictions are through ICANN's invocation of the remedies stated in sections II.N and II.P of the Registrar Accreditation Agreement, not by a third party raising them as a defense to a claim brought by a registrar.

On 8 December 2000, the Court issued an Order enjoining Verio from, among other things, using automated methods to access Register.com's Whois service, other than in compliance with Register.com's restrictive legend. In reaching its decision, the Court concluded that the Accreditation Agreement "creates no right in Verio to breach its agreement to abide by Register.com's terms of use for accessing its WHOIS data" and that the "Accreditation Agreement represents a private bargain between ICANN and Register.com and does not provide Verio with any privilege or defense."

After the Court's decision, on 21 December 2000, Verio submitted to ICANN a "Petition for Termination of Registrar Accreditation Agreement with Register.com." To assist it in determining how to proceed, ICANN has requested that Register.com submit a response to that petition.