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A federal judge has ordered a Colorado Web hosting company to stop accessing the customer database of a major Internet domain-registration service and using that information for direct marketing and telemarketing purposes. U.S. District Judge Barbara S. Jones of the U.S. District Court for the Southern District of New York issued a preliminary injunction Friday against Verio Inc., which had been sued by New York-based Register.com Inc., for using the database to reach customers and leaving the impression that their marketing activities were approved by Register.com. A suit filed in August charged Verio with, among other things, breach of contract as well as violations of the Lanham Act and the Computer Fraud and Abuse Act. It alleged that Verio was violating the terms of use for the WHOIS interactive database, which Register.com, as a registrar of domain names, is required to maintain so that people can gain access to information concerning domain name disputes. In addition to being one of dozens of domain registrars for people or companies who want to register a name in the .com, .net, and .org domains, Register.com also offers Web-site creation tools, Web-site hosting, e-mail and other Internet-based services. Among the services the company offers to customers is the chance to “opt-in” during the registration process and receive solicitations for other services offered by either Register.com or its many partners. Although Verio is not involved in the business of registering domain names, it is a direct competitor of Register.com in a number of areas, including Web-site hosting. At issue is Register.com’s relationship with its customers, many of whom were allegedly solicited both at home and at work by Verio. In apparent violation of the prohibition against using the WHOIS database for mass mailings and e-mail (spam), Verio used an automated software program, or search robot, to pluck newly registered domain names from the database and begin a direct marketing campaign called Project Henhouse. Register.com claimed that some of those customers, particularly those who decided against opting-in for solicitations, became angry because they were under the impression that Register.com had forwarded personal customer information to Verio. Verio argued, in vain, that Register.com’s own terms of use for WHOIS were unduly restrictive, and that the Accreditation Agreement that Register.com signed with ICANN, the Internet Corporation for Assigned Names and Numbers, permits direct mail and marketing uses for information from the database. NO DEFENSE But Judge Jones said that the “Accreditation Agreement represents a private bargain between ICANN and Register.com and does not provide Verio with any privilege or defense” to a claim that Verio was in breach of contract. By submitting a WHOIS inquiry, she said, Verio assented to the more restrictive terms of use required by Register.com. And the judge, in granting the preliminary injunction, said Register.com was “likely to succeed on the merits on claims of unfair competition and false designation of origin under Section 43(a) of the Lanham Act with respect to any e-mail, telephone or direct mail solicitation” that used Register.com’s marks. So in addition to preventing Verio from accessing the WHOIS database for improper purposes, Jones’ decision in Register.com Inc. v. Verio Inc. 00 Civ. 5747, also blocked the company from using the Register.com mark or the company’s “first step on the Web” mark, and barred Verio from representing that it is sponsored by, or has the approval of, Register.com. Verio was also ordered to stop using any data that the company can identify came from WHOIS database. “Register.com is correct that some of Verio’s solicitations were in the past misleading on their face and violated the Lanham Act,” Jones said. ” . . . some of Verio’s most recent solicitations . . . created confusion as to whether Verio was calling because of some problem with the customer’s domain name, which resulted in confusion with respect to whether Verio and Register.com were affiliated in any way.” William F. Patry, of Skadden, Arps, Slate, Meagher & Flom, was lead counsel for Register.com. Michael Jacobs of Morrison & Foerster was lead counsel for Verio.

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