A U.S. appeals court upheld an injunction banning a Web hosting company from using a database of Web domain owner information to send unsolicited marketing materials.
According to court documents, Verio developed automated software that scanned domain registrar Register.com's WHOIS database for new domain registrants and used the information to send these potential customers e-mails, direct mail and telemarketing calls about Verio's services.
In the decision dated Jan. 23, the 2nd U.S. Circuit Court of Appeals rejected Verio's motion to throw out a New York U.S. District Court judge's December 2000 prohibition on Verio from using data from the WHOIS database in its marketing and from using the Register.com trademark in its solicitations.
A Verio spokeswoman did not immediately return a telephone call for comment yesterday.
The WHOIS database is public and available online via Web registrars such as Register.com. When it discovered Verio's use of WHOIS data, Register.com required database users to agree not to use the information for e-mail marketing, but later changed the agreement to ban direct mail and telemarketing as well.
Verio initially agreed to cease use of Register.com's trademark in its marketing and use of the WHOIS data for e-mail. However, it refused to cease use of the data for direct mail and telemarketing, and Register.com sued in August 2000.
Verio argued that Register.com's ban on use of WHOIS data for direct mail and telemarketing violated an agreement with the Internet Corporation for Assigned Names and Numbers, or ICANN, which governs domain names and grants authorization to Web registrars. ICANN banned WHOIS data for use in unsolicited e-mail marketing but forced registrars to make the data available for all other purposes.
However, the appeals court ruled that decisions on how WHOIS data can be used were a matter between Register.com and ICANN, which maintains a resolution process for such disputes outside the courts. Furthermore, the court ruled that even though Register.com changed its policy on approved uses of WHOIS data, Verio continued to use the data for direct mail and telemarketing even after it received notice of the change.
The split decision by the three-judge panel was marked by an unusual circumstance in that the dissenting judge, Fred I. Parker, died Aug. 12 prior to the court's approval of the final decision. Parker submitted a draft dissent opinion before he died, and the other two judges included it in their final filing on the case.
