April 02, 2007

A registrar which is required to transfer a domain name is not liable for doing so

The registrar Tucows Inc. and its subsidiary OpenSRS, transferred Robert N.'s name petswarehouse.com. Robert N. alleged this constituted trademark infringement.
N. registered this name in 1997, and used it for selling pet supplies and livestock. Four years later, he registered this name as a trademark.
John B. obtained a default judgment against N. (in the amount of $50,000). In 2003, B. applied for a writ of execution to obtain N.’s domain name petswarehouse.com in an effort to enforce the default judgment that he had been awarded against N. The name was transferred to Tucows. The writ of execution required Tucows to suspend the hosting of this name and to turn it over to a Sheriff’s Department for public auction. Tucows did so. A few months later, B. purchased the name, which was transferred to him by Tucows pursuant to the court’s order.
This court order was reversed in 2004. N. demanded that Tucows return control of the name to him, and had it back.
To the plaintiff, the suspension and transfer of his domain name between May 1, 2003 and October 1, 2004 "destroyed his pet-supply business".
The court rejects plaintiff's internet printouts coming from the Wayback Machine, as they lack authentication. The court also finds that the plaintiff, contrary to what he alleges, entered into an agreement with Tucows, and thus the name was not fraudulently transferred to Tucows without his permission.

According to Martin Schwimmer, who represented Tucows, "[t]he case is significant because it upholds (1) the enforceability of a click-through domain name registration agreement; (2) and the individual clauses therein, such as a forum selection clause; (3) in instances where the registrant obtains the name through a re-seller".

[United States District Court Eastern District of New-York, N° 06-CV-1909, March 26, 2007]

1 comment:

prasanna said...

yes u are correct